author: MONTEMURO, Judge:

text:
    522 A.2d 1143
    COMMONWEALTH of Pennsylvania v. Clifford B. WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 18, 1986.
    Filed March 23, 1987.

      Walter A. Steinbacher, Assistant Public Defender, Williamsport, for appellant.
    Brett O. Feese, District Attorney, Kristine L. Waltz, Assistant District Attorney, Williamsport, for Com., appel-lee.
    Before WIEAND, MONTEMURO and JOHNSON, JJ.
   MONTEMURO, Judge:

Appellant, Clifford B. Williams, challenges the denial of his motion to dismiss. Appellant believes that any attempt to prosecute him in this case violates his right not to be placed twice in jeopardy for the same offense. The Lycom-ing County Court of Common Pleas disagreed and characterized appellant’s double jeopardy argument as “frivolous.” Because this appeal is interlocutory, we must quash for lack of jurisdiction.

The Commonwealth seeks to prosecute appellant for the first of three disturbances in which appellant was involved on the night of June 15 and 16, 1985. Appellant pled guilty on August 2, 1985 to a disorderly conduct charge that arose from the second disturbance, and the court on November 18, 1985 dismissed the charges that arose from the third disturbance because of the Commonwealth’s failure to comply with Pa.R.Crim.P. 130(d). In his motion to dismiss the present case, appellant claims that the earlier prosecutions for the second and third disturbances bar prosecution for the first. The trial court nonetheless denied the motion by order of December 23, 1985, and a timely notice of appeal followed. On July 1, 1986, the trial court filed an opinion in support of its order. In this opinion, the court concluded that “the defendant’s motion to dismiss on double jeopardy grounds is frivolous.”

Our supreme court in Commonwealth v. Brady, 510 Pa. 336, 346, 508 A.2d 286, 291 (1986), concluded that “an appeal from the denial of a motion to dismiss on double jeopardy grounds should not be permitted where the hearing court has considered the motion and made written findings that the motion is frivolous.” The court reasoned that immediate appellate review of “obviously frivolous” double jeopardy claims encourages dilatory defense tactics and compromises the interest of the public in “the prompt trial of the criminally accused.” Brady, supra, 510 Pa. at 346, 508 A.2d at 291. The reasoning and result in Brady apply to the present case. As in Brady, the trial court’s written finding of frivolousness renders this appeal interlocutory. Appellant therefore must await final judgment before he can seek appellate review of his double jeopardy claim. He can challenge the finding of frivolousness only by requesting a stay directly from the supreme court. See Commonwealth v. Learn, 356 Pa.Super. 382, 514 A.2d 910 (1986).

For the foregoing reasons, we quash this appeal as interlocutory.

Appeal quashed.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    522 A.2d 1144
    Gregory L. SUTLIFF, Appellant, v. Carlene SUTLIFF. Gregory L. SUTLIFF v. Carlene SUTLIFF, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 27, 1986.
    Decided Jan. 14, 1987.
    Reargument Denied March 27, 1987.
    Petition for Allowance of Appeal Granted Aug. 12,1987.
    See also, 502 A.2d 1231.

      Bonnie D. Menaker, Harrisburg, for appellant (at 354) and appellee (at 361).
    Ronald Katzman, Harrisburg, for appellant (at 361) and appellee (at 354).
    Before CAVANAUGH, TAMILIA and CERCONE, JJ.
   TAMILIA, Judge:

Gregory and Carlene Sutliff were married in 1960. The parties separated in October of 1981 and Gregory Sutliff filed a complaint in divorce on February 5, 1982. A master was appointed in April of 1982 and ten hearings were held before a report was filed on April 2, 1984. Appellant/husband filed eighty (80) exceptions to the report and ap-pellee/wife filed fifty (50) exceptions. On December 26, 1984, a stipulation entered into by the parties was filed providing for, among other things, a bifurcated divorce. A final divorce decree was entered that same day.

On May 7, 1985, the Opinion and Order of the Court providing for equitable distribution was filed. Appellant/husband filed his notice of appeal and appellee/wife cross appealed from this Order. The issues raised therein are presently before us.

The provisions of 23 P.S. § 401(e) and (f) are at the core of appellant/husband’s initial objections to the equitable distribution Order. Specifically challenged are the application of the tracing concept to property covered by sections 401(e)(1) and 401(e)(3) along with the standard of proof required by the court to overcome the presumption of marital property established in section 401(f).

In order to properly discuss appellant’s specific objections to the court’s actions, we think it appropriate to initially review the concept of tracing and the standard of proof required to overcome the presumption of marital property.

23 P.S. § 401(e)(1) establishes the concept of tracing by providing an exclusion to the rule that all property acquired during the marriage is marital property. This section states that property exchanged for property acquired prior to marriage is non-marital except for the increase in value. Thus to catagorize an asset as non-marital within this section, a party must be able to show that a specific piece of property was obtained in exchange for another specific piece of property. This systematic following of one asset into another is “tracing”.

Although 23 P.S. § 401(e)(3) does not have a specific provision calling for tracing, we have applied the concept to it because even though there was not a provision excepting property acquired in exchange for property acquired by gift, bequest, devise or descent, the exchange of property excluded under property set forth within the section did not change its character as separate property. In Winters v. Winters, 355 Pa.Super. 64, 512 A.2d 1211 (1986), the appellant asserted section 401(e)(3) would destroy the identity of the property and remove it from the statutory exclusion. We rejected this argument and concluded, based upon an overall reading of the statute, that an exchange does not destroy the character of the gift or inheritance.

As stated in Winters:

This is a rational and necessary conclusion in the interpretation of these sections. In providing for the exchange factor in section 401(e)(1) the legislature made clear that prior owned property did not lose its character by an exchange for other property during the marriage. It could easily be argued otherwise that under section 401(e) and (f) it could be construed marital property since this would be the first instance when activity concerning vesting or ownership occurred during the marriage.
The significant difference between the two is that prior owned property came into possession of the acquiring spouse before the marriage, whereas the gifts and devise came into possession subsequent to the marriage, and unlike other property acquisitions, were specifically excluded. In section 401(e)(1) the legislature needed to make clear prior owned property did not change its character by changing its form during the marriage. In section 401(e)(3), the character of the property was established as separate property during the marriage and there was no need to clarify the fact that a subsequent change of form did not alter its character.

Winters 355 Pa.Superior Ct. at 71, 512 A.2d at 1215.

Having established that tracing is appropriate under the statute, the standard of proof necessary to invoke the exemption from marital property available under sections 401(e)(1) and (3) must be addressed.

It is clear under section 401(f) that a presumption is established in favor of classifying property as marital when it is acquired during the marriage. The section requires that in order to overcome this presumption, a showing must be made that the property was acquired by a method listed in 23 P.S. § 401(e).

The standard of proof necessary to make this showing has not been specifically addressed by this Court. After a review of applicable case law, we think that a clear and convincing standard should be required to overcome the presumption of marital property.

The establishment of a presumption, by its very nature, indicates a preference by the legislature for facts to be construed in a certain manner. Absent a presumption in this statute, it would be a question of whether, by a preponderance of the evidence, a party could demonstrate that property was acquired through one of the methods listed in section 401(e). By incorporating section 401(f) into the divorce code, it follows that a result different from that which would occur in its absence was desired. See Fireman ’s Fund Insurance v. Nationwide Mutual Insurance, 317 Pa.Super. 497, 464 A.2d 431 (1983); see also 1 Pa.C.S.A. §§ 1921, 1922.

In further support of this holding, we note that the clear and convincing standard has been applied when dealing with other closely related presumptions.

This Court, in Madden v. Madden, 336 Pa.Super. 552, 486 A.2d 401 (1985), discussed the presumption of a gift and creation of an estate by the entireties when property or an account is placed in the names of a husband and wife. In order to overcome this presumption, the court determined clear and convincing evidence to the contrary was required. Madden, supra, citing In Re Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964). See also Brown v. Brown, 352 Pa.Super. 267, 507 A.2d 1223 (1986). Clear and convincing evidence has also been required before severing rights of parents in natural children. In Re Adoption of Michael J.C., 506 Pa. 517, 486 A.2d 371 (1984).

Additional examples of the application of a clear and convincing standard were set forth by the Common Pleas Court of Mercer County in Fox v. Fox, 22 D. & C.3d 1 (1982). In a well reasoned Opinion in support of finding the need for clear and convincing evidence to overcome the presumption of marital property in 23 P.S. § 401(f), the court noted instances where such proof is required:

7. Clear and convincing proof is required: to establish a claim for wages for personal services to a decedent: Mooney’s Estate 328 Pa. 273, 194 Atl. 893 (1937); to establish fraud, Gilberti v. Coraopolis Trust Company, 342 Pa. 161, 19 A.2d 408 (1941); to establish reformation of a contract on grounds of a mistake, Boyertown National Bank v. Hartman, 147 Pa. 558, 23 Atl. 842 (1892); to establish a resulting trust, Hale v. Sterling, 369 Pa. 336, 85 A.2d 849 (1952); to establish adverse possession, Stevenson v. Stein, 412 Pa. 478, 195 A.2d 268 (1963); to overcome the presumption of gift, Butler v. Butler, 464 Pa. 522, 347 A.2d 477 (1975), and Dzierski Estate, supra; to set aside a transaction on the basis of incompetency, Elliott v. Clawson, 416 Pa. 34, 204 A.2d 272 (1964); and to establish that an inter vivos gift to an attorney from a client was not based on fraud or undue influence, 7 Am.Jur.2d Attorney at Law, § 123.

Fox, supra at 9, footnote 7.

In order to implement the policy of the Divorce Code to “effectuate economic justice ... and insure a fair and just determination and settlement of (their) property rights”, 23 P.S. § 102(a)(6), we think it proper to require clear and convincing evidence to overcome the presumption in section 401(f) that property obtained during the marriage is marital property.

Although exemptions have been statutorily created and tracing of assets approved, we think it appropriate to require a higher standard of proof before depriving one spouse of an interest in property acquired during the marriage.

Clear and convincing proof is a standard frequently imposed in civil cases where the wisdom of experience has demonstrated the need for greater certainty ... to sustain claims which have serious social circumstances or harsh or far reaching effects on individuals.

32A C.J.S. Evidence § 1023.

We think this is such an instance and thus adopt the requirement of clear and convincing proof to overcome the presumption of marital property in section 401(f). With this in mind, we now direct our attention to the questions raised by appellant/husband on appeal.

Initially, appellant contends the trial court abused its discretion and misapplied the law in failing to determine certain assets were non-marital. He maintains that non-marital assets can be traced into the acquisition of stock in Commonwealth National Bank, Digital Systems, B & M Stutzman Chevrolet and Pennsylvania Leasing; a property at 499 North 25th Street and Sutliff Chevrolet Company. Based on this tracing, under appellant’s theory, the assets should have retained their status as non-marital.

In reviewing a court’s actions in an equitable distribution of property, we are limited to determining whether there was an abuse of discretion. Brown, supra. Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986). Although the rules of procedure provide for the appointment of a master to conduct a hearing, prepare a report and make recommendations (Pa.R.C.P. 1920.51), the final responsibility of making the distribution rests with the court. Morsch-hauser v. Morschhauser, 357 Pa.Super. 339, 516 A.2d 10 (1986). Our review is thus based on the court’s distribution of property in light of the factors set forth in the Divorce Code (23 P.S. §§ 401(d)(l)-(10).)

Appellant asserts that the master improperly held tracing under 23 P.S. § 401(e)(1) could only be extended to one transaction and that property acquired by gift, bequest, devise or descent (section 401(e)(3)) must remain in-kind to retain its non-marital identity, thus prohibiting tracing under this section. Appellant also contends that the clear and convincing standard of proof required by the master and adopted by the court to overcome the presumption of marital property established in 23 P.S. § 401(f) is erroneous.

Based upon our prior discussion, we cannot agree that it was error to invoke the clear and convincing standard of proof to support the tracing claims. Our review of the record likewise leads us to the conclusion that there was no abuse of discretion by the court in determining whether assets were marital property. We will review each of the specific assets set forth above and further clarify our reasoning.

A. Commonwealth National Bank Stock — The court found 12,500 shares were held as of the date of separation; 6,920 of these shares were in Clifford Trusts for the benefit of the children. The court held the placement of this stock into the trusts did not affect its status as marital or non-marital. The court then found clear and convincing evidence was presented to demonstrate that 3,456 shares were non-marital because they were obtained as a gift by appellant from his father. It was further determined that appellant was unable to meet his burden of proof in attempting to show other shares should also be classified as non-marital. The court concluded that 3,456 shares were non-marital and 9,044 shares were marital.

Appellant argues that the proceeds of a life insurance policy and the pension benefits of his father should properly have been traced to the purchase of Commonwealth National Bank Stock. The court rejected this contention and agreed with the master who found the funds received were commingled in a joint checking account used for various expenditures of the family and sufficient evidence was not produced to show that the stock was purchased with the insurance and pension benefits. Although we do not agree with the master that section 401(e)(3) requires property acquired by gift, devise or descent to remain in-kind or lose its identity as non-marital property, that question is not at issue here. The basis for the court’s ruling as to this asset was the lack of sufficient evidence to support tracing. We find no abuse of discretion in this action by the court.

B. Digital Systems Corporation — The court distributed 47,078 shares based on a determination that the funds used to buy the stock had been “transmuted” by commingling with other marital funds and clear and convincing evidence was not presented to trace the asset to non-marital funds.

Appellant maintains that the stock was purchased with funds received on account of his father’s death (pension and life insurance) and the court erred in not properly tracing these non-marital assets to the purchase of Digital Stock. He also claims that even though a portion of the stock was purchased with funds drawn on a joint account, an application of the Multiple Party Accounts Act, 20 Pa.C.S.A. § 6301, et seq., would require basing the status of the funds on who contributed them to the account.

We do not support the lower court’s application of a transmutation theory. As stated in Winters, supra, “We ... have rejected the ‘inception of title’ ‘source of funds’ and ‘transmutation of property theories’ in Pennsylvania. Winters, supra 355 Pa.Superior Ct. at 72, 512 A.2d at 1215.

In Anthony v. Anthony, 355 Pa.Super. 589, 514 A.2d 91 (1986) (Concurring and Dissenting Opinion by Tamilia, J.), these theories were expounded upon. The transmutation theory, which holds that where property is commingled by title, financial or work contribution, it is presumed to be converted to marital property, is rejected and the reasons set forth as follows:

... We cannot adopt any of these theories in their entirety. The variation and nuances in the statutes of the various states on equitable distribution and marital property and the different interpretations of “increased value” and “acquire” as it relates to marital property, dictate we establish our concepts on the basis of our interpretation of Pennsylvania law rather than adopting the interpretation of the courts of one or the other of our sister states.

Anthony, Concurring and Dissenting Opinion 355 Pa.Superior Ct. at 610, 514 A.2d at 102.

Rejection of the court’s use of the transmutation theory does not require a reversal, for the court also supported the distribution by concluding there was not sufficient evidence to find the stock was traceable to non-marital funds.

We also reject appellant’s argument that the status of funds in a joint account should be based upon contribution. When “an account is placed in the names of a husband and wife, a gift, and the creation of an estate by the entireties is presumed even though the funds used to ... establish the account were exclusively those of [one spouse].” Brown, supra 352 Pa.Superior Ct. at 273, 507 A.2d at 1225 citing In re Holmes, supra 414 Pa. at 406, 200 A.2d at 747.

Based on the above discussion, we find no abuse of discretion by the court in determining the Digital Stock was a marital asset.

C. B & M Stutzman Chevrolet — The court found this asset to be entirely marital by rejecting appellant’s contention that the funds used in the purchase were traceable to non-marital assets. This action by the court was once again based upon appellant’s failure to meet his burden of proof.

Appellant maintains this asset was purchased with inherited funds and the proceeds from the sale of gold which had previously been purchased with a combination of inherited funds and earnings as well as the proceeds from the sale of an airplane.

Based on our review of the record, we hold the trial court’s finding was appropriate and agree the burden of proof was not met to overcome the presumption of marital property.

D. Pennsylvania Leasing — The court found 37 shares of Pennsylvania Leasing to be marital assets. Appellant contends eight of these shares should be non-marital because purchased after the date of separation.

The court based its decision on the inconclusiveness of the date of purchase and the fact that the stock was purchased with funds from a marital account. We find no abuse of discretion in this determination.

E. Jj.99 North 25th Street — This property was conveyed to appellant by his mother for $62,750 and the undisputed value at the time of the hearing was $155,000. The court held the entire value was a marital asset finding appellant failed to prove the purchase funds were non-marital. Since the property was purchased during the marriage, any increase in value was also considered marital in nature by the court.

Appellant argues that the value at the time of purchase was greater than the price paid and that difference should be considered a gift. The remainder he contends is solely due to inflation and other market funds and should not be considered a marital asset.

We find no basis to reverse the lower court as to this asset. In addition, we note that an increase in value caused by inflation or market forces is a marital asset under the provisions of section 401(e)(1) and (3). See Anthony, supra, for a detailed discussion of this issue.

F. Sutliff Chevrolet — The court held 1,050 shares to be marital and 500 shares non-marital and valued the stock at $1,900,000. Appellant contends once again that the court erred in not tracing certain stock purchases to non-marital assets. He also asserts that the value given is not proper. We can find no abuse of discretion by the court in its determination that the burden of proof was not sustained by appellant. We will address the valuation issue when we review cross-appellant/wife’s claims.

The next issue we will address is appellant’s assertion that the court erred in failing to identify the marital residence as marital property, to assign a value to it and to distribute it.

The court found that the stipulation entered into by the parties, which had specific provisions for the sale of the house and distribution of funds, removed the residence from equitable distribution consideration. We agree and refer to 23 P.S. § 401(e)(2) which provides for an exclusion from marital property such “property excluded by valid agreement of the parties entered into before, during or after the marriage.” We think the court acted properly by incorporating the agreement into its equitable distribution order and distributing the property in this manner.

Appellant next challenges the equitable distribution claiming the court failed to give weight to his contribution of inherited assets and gifts toward the acquisition of marital property.

Our review of this issue is limited as stated prior to a determination of whether there was an abuse of discretion by the lower court. Brown, supra; Lee v. Lee, 352 Pa. Super. 241, 507 A.2d 862 (1986). To make this determination, we must evaluate the decision of the lower court in light of its application of the guidelines set' forth in 23 P.S. § 401(d).

The court essentially agreed with the findings of the master and we find this to be proper. The master thoroughly discusses the factors in section 401(d) and applies them to the facts of the case. We do not evaluate the propriety of the distribution order upon our agreement with the courts actions nor do we find a basis for reversal in the court’s application of a single factor. Rather, we look at the distribution as a whole, in light of the court’s overall application of the 401(d) factors. If we fail to find an abuse of discretion, the Order must stand. See Sergi, supra; Semasek v. Semasek, 331 Pa.Super. 1, 479 A.2d 1047 (1984).

The present case indicates no abuse of discretion in applying the factors in the Divorce Code and appellant’s claim is rejected.

Appellant’s final two arguments are also without merit. First, he contends the practice of requiring litigants to pay master’s fees including the cost of the master’s law clerk is unconstitutional because it denies access to the courts. He also claims retroactive application of section 401 of the Divorce Code is unconstitutional.

We agree with the court that requiring payment of master’s fees is a court cost which can be properly assessed under section 401(b) which provides in pertinent part:

§ 401(b)
The court may order alimony, reasonable counsel fees and expenses pending final disposition of the matters provided for in this subsection and upon final disposition, the court may award costs to the party in whose favor the order or decree shall be entered, or may order that each party shall pay his or her own costs, or may order that costs be divided equally as it shall appear just and reasonable.

Appellant does not contend he is unable to pay the costs but rather that any imposition of master’s fees is unconstitutional. We cannot agree.

As to the question of the constitutionality of retroactive application, we believe Bacchetta v. Bachetta, 498 Pa. 227, 445 A.2d 1194 (1982) is controlling and the court’s rejection of appellant’s argument on that basis proper.

We next address the issues raised by cross-appellant/wife. First we will dispose of the wife’s contention that the court failed to balance equitably the factors involved in determining the proper amount of marital assets awarded to her.

Our discussion of the court’s action in response to appellant/husband’s claim that the Order was not equitable is equally applicable to the wife’s assertion. The wife’s contention to the contrary must fail for the same reasons the husband’s argument was rejected. The percentages applied by the court in distributing the assets were explained by the master in relation to the section 401(d) factors. We find no abuse of discretion by the court in adopting this reasoning and dividing the assets as it did.

The other issues raised by Mrs. Sutliff involve the date of valuation employed by the court, the valuation established for Sutliff Chevrolet, the disposition of marital assets in the form of vehicles and the failure of the court to award rent and a share of the earnings from marital assets held by the husband.

The wife maintains it was an abuse of discretion to value the assets as of the date of separation which is October 21, 1981. For the following reasons, we agree with this contention.

The court was correct in its holding that the Divorce Code is silent on the question of what date is to be used for valuation of property. The court considered its choices to be between the date of separation and the date the complaint is filed and because of the relatively short time between the two events found no error by the master in choosing the date of .separation.

This Court has recently addressed the issue of valuation in Sergi, supra. See also Winters, supra; Morschhauser, supra. In Sergi, after reviewing the relevant sections of the Divorce Code, we concluded that the trial court is free to select the date which best serves to provide for economic justice between the parties. The rationale for such a holding was set forth as follows:

As has already been mentioned, the drafters of the Divorce Code have provided that the parties are to submit to the court an initial valuation of their property at the time the action is commenced. To mandate that a trial court be limited to effecting an equitable distribution based only on this valuation information could result in a distribution based on stale financial data. This would hardly be in keeping with the overall declared policy of the Commonwealth which is to:
(e)ffectuate economic justice between parties who are divorced or separated and grant or withhold alimony according to the actual need and ability of the parties and insure a fair and just determination and settlement of their property rights.

23 P.S. § 102(a)(6) (emphasis added).

Likewise, to require a trial court to value property as of the date of separation may also result in the use of stale financial data and subsequent inequitable distribution of marital property.

Sergi, supra 351 Pa.Superior Ct. at 593, 506 A.2d at 931.

The concept that a court may choose for valuation any time between separation and distribution is further explained in Winters, supra, where we stated: “Valuation of property lies on a continuum so that equity requires a determination of the most fair point on that continuum to establish value.” Winters, supra 355 Pa.Superior Ct. at 70, 512 A.2d at 1214 n. 3.

Based on this reasoning, we must remand to the lower court to establish new values for certain assets. Our decision is based upon the passage of time since the assets were valued, the possible fluctuations in value which may have occurred and the substantial sums which would be involved in such fluctuations.

This is particularly important because of the stipulation agreement in which Mrs. Sutliff has waived the right to in-kind distribution of stock in Sutliff Chevrolet, Pennsylvania Leasing Co., American Technology, Digital Systems Corp., B & M Chevrolet and Sutliff Enterprises in exchange for a cash value payment.

Although we are reluctant to take any measure which will prolong this already lengthy litigation we are compelled to do so by the legislative mandate to insure a fair and just settlement.

As stated prior, the percentages established for distribution of the various assets do not constitute an abuse of discretion and should stand. The shares of stock in American Technology and Digital Systems are publicly traded and a current value is easily ascertainable. The shares in Commonwealth National Bank are not included in the stipu-látion so they are to be divided in-kind. The values of Sutliff Chevrolet, Pennsylvania Leasing and B & M Chevrolet, however, must be established so as to reflect current value.

Because we are remanding to reestablish the value of Sutliff Chevrolet, we need not address the issue of whether the value established by the court for Sutliff Chevrolet was proper. We do find merit in Mrs. Sutliff s contention that the court erred in its disposition of the vehicles sold by Mr. Sutliff to Sutliff Chevrolet.

The testimony indicates that certain vehicles were purchased from Sutliff Chevrolet and were marital assets. The title to these vehicles was kept in the name of the dealership for insurance purposes. After separation Mr. Sutliff sold these vehicles back to Sutliff Chevrolet to obtain funds to cover expenses (N.T. 8/17/82, pp. 64-65). The court concluded that because these vehicles were titled in Sutliff Chevrolet, they would be included in the marital assets and distributed through the master’s distribution of Sutliff Chevrolet stock. We do not agree.

The vehicles were marital assets when purchased from Sutliff Chevrolet and would have been subject to distribution. When they were sold back to Sutliff Chevrolet, Mr. Sutliff received funds for them. These funds should thus be subject to distribution. To refuse to recognize this gain by the husband would allow him to obtain value for the assets in the form of the funds paid for the vehicles and also allow him to receive a percentage of the value of the vehicles as an asset of Sutliff Chevrolet in the distribution of the company stock. The wife would thus be denied a share of the funds received by husband and entitled only to a portion of the value as distributed with the dealership assets.

On remand, we direct the court to determine the value received by Mr. Sutliff for the 1975 Corvette, 1978 GMC Motorhome and 1977 Triumph motorcycle and distribute an appropriate share to Mrs. Sutliff.

Mrs. Sutliff’s next contention is that the court erred in failing to award rent based on Mr. Sutliff’s exclusive possession of the marital home. Although an award of rent is permissible, we do not deem it an abuse of discretion by the court to refuse to take such an action in the present case. Again, we evaluate the court’s decision in light of the totality of the circumstances and the equitable distribution order as a whole.

The wife’s final contention is that the equitable distribution order should compensate her for the benefits husband has enjoyed because of the assets being titled in his name. The specific assets brought into question are the property at North 25th Street which has been rented to a third party and the Commonwealth National Bank stock including the dividends paid. The court held that an award as requested by Mrs. Sutliff was not warranted because of the large sum she was to receive and in addition found no case law support for such an action.

We think this was an abuse of discretion and the wife should be awarded benefits based on her pro rata interest in the various assets.

We find that on remand the court should determine the dividends, if any, that have been paid since separation on all of the stock being distributed and apportion an amount to Mrs. Sutliff based on her share of the asset. As noted prior, the Commonwealth National Bank stock is not part of the stipulation agreement and Mrs. Sutliff is to receive shares of the stock in-kind. This should include any additional stock resulting from a stock split in proportion to the percentage interest provided in the original distribution order. Dividends paid on this stock should also be distributed in the same manner as the other stocks.

Finally, the rents received for the property at North 25th Street should be distributed after appropriate deductions are made for repairs, taxes and other expenses associated with maintaining the property as a rental unit.

In summary, we have affirmed the actions of the lower court in determining the proportions in which the parties should share in the marital assets. We remand to allow the court to establish values for the stock in American Technology, Digital Systems, Sutliff Chevrolet, Pennsylvania Leasing and B & M Chevrolet. In addition, the amount paid to Mr. Sutliff for the 1975 Corvette, 1978 GMC Motorhome and 1977 Triumph motorcylce is to be determined and distributed as a marital asset. The court is also to determine and distribute any dividends paid on the stocks listed as marital assets. The number of shares of Commonwealth National Bank to be distributed to each party is to be established and the rents received on the rental property included in the distribution order.

Remanded for actions in accordance with this Opinion. Jurisdiction is relinquished.

      . 23 P.S. § 401(e) provides:
      (e) For purposes of this chapter only, "marital property" means all property acquired by either party during the marriage except:
      (1) Property acquired in exchange for property acquired prior to the marriage except for the increase in value during the marriage.
      (2) Property excluded by valid agreement of the parties entered into before, during or after the marriage.
      (3) Property acquired by gift, bequest, devise or descent except for the increase in value during the marriage.
      (4) Property acquired after separation until the date of divorce, provided however, if the parties separate and reconcile, all property acquired subsequent to the final separation until their divorce.
      (5) Property which a party has sold, granted, conveyed or otherwise disposed of in good faith and for value prior to the time proceedings for the divorce are commenced.
      (6) Veterans' benefits excempt from attachment, levy or seizure pursuant to the act of September 2, 1958, Public Law 85-857, 72 Statute 1229, as amended, except for those benefits received by a veteran where such veteran has waived a portion of his military retirement pay in order to receive Veteran’s Compensation.
      (7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for the divorce are commenced.

      . 23 P.S. § 401(f) provides:
      (f) All property, whether real or personal, acquired by either party during the marriage is presumed to be marital property regardless of whether title is held individually or by the parties in some form of co-ownership such as joint tenancy, tenancy in common or tenancy by the entirety. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (e).

      . 23 P.S. § 401(d) provides:
      (d) In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign the marital property between the parties without regard to marital misconduct in such proportions as the court deems just after considering all relevant factors including:
      (1) The length of the marriage.
      (2) Any prior marriage of either party.
      (3) The age, health, station, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties.
      (4) The contribution by one party to the education, training, or increased earning power of the other party.
      (5) The opportunity of each party for future acquisitions of capital assets and income.
      (6) The sources of income of both parties, including but not limited to medical, retirement, insurance or other benefits.
      (7) The contribution or dissipation of each party in the acquisition, preservation, depreciation or appreciation of the marital property, including the contribution of a party as homemaker.
      (8) The value of the property set apart to each party.
      (9) The standard of living of the parties established during the marriage.
      (10) The economic circumstances of each party at the time the division of property is to become effective.


author: CERCONE, Judge:

text:
    522 A.2d 1155
    COMMONWEALTH of Pennsylvania v. Emmitt A. VINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 22, 1986.
    Decided March 4, 1987.

      Teresa C. Deni, Philadelphia, for appellant.
    Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
    Before WATKINS, CERCONE and HESTER, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence imposed after a jury convicted appellant, Emmitt Vinson, of robbery, criminal conspiracy and carrying firearms on public streets or public property. After post-verdict motions were denied, the court sentenced appellant to ten (10) to twenty (20) years imprisonment on the robbery conviction, a concurrent term of five (5) to ten (10) years imprisonment on the conspiracy conviction and a concurrent term of two (2) to five (5) years imprisonment on the firearms conviction. This appeal followed.

On January 14, 1983 at approximately 9:50 p.m. appellant and his companion robbed a Philadelphia Parking Authority cashier, at gunpoint, and fled with $468.00. The cashier notified the police who responded promptly. He described appellant as a black male, 28 to 30 years old, approximately 6’1” tall and 170 pounds, wearing a long white trench coat, blue denims which were cutoff at the cuff, and white socks. The cashier described appellant’s companion as being a 28 to 30 year old black male, weighing 190 pounds and wearing a multicolored “lumberman jacket” with a tweed cap. The car was described as a 1974 to 1977 Grand Prix, dark blue with white pinstripes, a vinyl roof and a Pennsylvania license plate.

Approximately five to ten minutes after hearing the robbery report over the police radio, the arresting officers saw a car which fit the description at a gasoline station, located only a few minutes away by car from the robbery scene. The officers pulled up and asked the driver, the appellant, for some identification and for the car registration. While the officer’s partner ran a check on the driver, the officer observed a crumpled trench coat in the back of the car. He then walked over to the driver’s side and through the open door saw a pistol protruding from under the seat. The officers then handcuffed the suspects and searched them. The police recovered approximately $425.00 and also found a knife in the front seat of the car.

The officers radioed that they had two suspects and requested that the complainant be brought to them for a possible identification. When the complainant saw the officer pull up in the appellant’s car, he yelled, “That’s the car.” He then identified the appellant.

Appellant’s initial argument on appeal is that he was stopped and subsequently arrested without probable cause as there were too many discrepancies between the physical description of the culprits in the radio call and the actual appearances of appellant and his companion. Appellant further claims that the search of his person and his automobile and the complainant’s “on-the-scene” identification should have been suppressed as fruits of this allegedly illegal arrest.

Initially we note that our function as an appellate court reviewing a denial of a motion to suppress is to determine:

[W]hether the record supports the suppression court’s factual findings and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we consider only the evidence of the prosecution’s witnesses and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradieted.

Commonwealth v. Reddix, 355 Pa.Superior Ct. 514, 518, 513 A.2d 1041, 1043 (1986), quoting Commonwealth v. W.P., 302 Pa.Superior Ct. 66, 69, 448 A.2d 97, 98 (1982). Moreover, when the evidence viewed in this manner supports the factual findings of the suppression court, we can reverse only if there is an error in the legal conclusion drawn from those factual findings. Commonwealth v. Reddix, supra.

Probable cause exists if the facts and circumstances within the knowledge of the police at the time of the arrest, and of which they have reasonably trustworthy information, are sufficient to justify a man of reasonable caution in the belief that a suspect has committed a crime. Commonwealth v. Verdekal, 351 Pa.Superior Ct. 412, 506 A.2d 415 (1986). It is only the probability of criminal activity, and not the certainty of such activity, that is the standard of probable cause. Commonwealth v. Monroe, 356 Pa.Superior Ct. 109, 514 A.2d 167 (1986).

Applying the law to the facts of the instant case, the trial court properly found that probable cause existed to support the stop and arrest. Within ten minutes of hearing the police radio broadcast, the arresting officers observed a dark blue Grand Prix with white pinstripes at a gas station not far from the scene of the crime, and two black males pumping gas into the car. The correlation of the broadcast description with the officers’ observations gave rise to probable cause to stop the vehicle. The fact that neither the appellant nor his cohort were as tall as the complainant estimated them to be does not invalidate the finding of probable cause. Nor does the fact that the officers did not observe the long white trench coat and the multicolored “lumberman jacket” the suspects were described to have been wearing, since both men had shed their outer coats by the time the officers spotted them.

Even if this court were to assume, arguendo, that probable cause did not exist to stop the appellant’s vehicle, then this court is of the opinion that the officers lawfully stopped the appellant’s vehicle for the purpose of conducting a limited investigation. This concept is referred to as an “intermediate response” and has been explained as follows.

A police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possible criminal behavior even though there is no probable cause to make an arrest____ The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary ... it may be the essence of good police work to adopt an intermediate response---- A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time, (citations omitted)

Commonwealth v. Monroe, supra 356 Pa.Superior Ct. at 115-16, 514 A.2d at 170-71, quoting Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1923, 32 L.Ed.2d 612, 616-617 (1972). Under the circumstances presented in the instant case, we believe that the officers had not only the right but the duty to stop appellant’s vehicle.

Having stopped the vehicle in question, one of the officers observed, in plain view, a crumpled light colored trench coat on the rear floor behind the driver’s seat. It has long been settled that objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. Commonwealth v. Janek, 242 Pa.Superior Ct. 340, 363 A.2d 1299 (1976). Furthermore, the discovery of these objects established probable cause to arrest appellant. Commonwealth v. Monroe, supra. The subsequent search of the car which produced the knife and the search of appellant’s person which produced the proceeds of the robbery, were valid searches incident to the arrest, Commonwealth v. Monroe, id., and therefore all of the evidence acquired was admissible.

The appellant also contends that the complainant’s identification of appellant was tainted by the allegedly illegal arrest and, therefore, should have been suppressed. Since we have determined that there was nothing illegal about the arrest, but on the contrary, it was wholly proper, the identification could not have been tainted. Furthermore, the identification of appellant took place only thirty minutes after the robbery and was soundly based on the victim’s recent memory. This, too, was properly admissible.

The appellant next contends that his rights to equal protection of the laws and due process guaranteed by the Fourteenth Amendment were violated by his inclusion in the Career Criminal Program of the Philadelphia Common Pleas Court. Appellant’s argument on appeal consists only of a one sentence allegation that the program “restricts the pool of Judges who may hear the case to those approved by the prosecution, creates bias in the presiding Judge, and irrationally limits the opportunity for trial before a Judge alone.

These allegations have already been reviewed and rejected. In Commonwealth v. Stinnett, 356 Pa.Superior Ct. 83, 514 A.2d 154 (1986) the court found that the classification of defendants on the basis of prior criminal conduct does not involve a suspect or arbitrary classification, and held that there was no equal protection violation based upon inclusion in the Career Criminal Program. Stinnett also rejected the due process arguments raised in this appeal, reasoning that the mere fact that a trial judge is aware of a defendant’s prior record does not automatically render him biased. Based upon the cases of Commonwealth v. Stinnett, supra, Commonwealth v. Carter, 347 Pa.Superior Ct. 624, 501 A.2d 250 (1985) and Commonwealth v. Kellum, 339 Pa.Superior Ct. 513, 489 A.2d 758 (1985) we uphold the lower court’s finding that the Criminal Career Program is constitutional.

The appellant finally alleges that trial counsel was ineffective in that he failed to raise objections to the judgment of sentence either at the sentencing hearing or in a motion to modify sentence pursuant to Pa.R.Crim.P. 1410. When confronted with a claim of ineffectiveness of counsel, we must first determine whether the issue underlying the charge of ineffectiveness is of arguable merit. If the underlying issue is found to be of arguable merit, our inquiry shifts to a determination of whether the course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). Furthermore, an appellant must show that any deficient performance by counsel caused prejudice and affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167 (1986).

Appellant specifies that the trial court erred when it sentenced him to ten (10) to twenty (20) years imprisonment for his robbery conviction since this term exceeded the aggravated minimum range suggested in the Sentencing Guidelines, found at 42 Pa.C.S.A. § 9721. Further, appellant alleges that the court erred by failing to state upon the record at sentencing the reasons supporting the sentence and deviating from the guidelines.

Appellant’s sentence did, in fact, exceed the statutory guidelines. Although a sentencing court is not required to follow the guidelines, it is obligated to provide, on the record, a statement of the reason or reasons for deviation from the guidelines. Commonwealth v. Royer, 328 Pa.Superior Ct. 60, 476 A.2d 453 (1984). The court must demonstrate that it was aware of, and considered, the guidelines. Commonwealth v. Chesson, 353 Pa.Superior Ct. 255, 509 A.2d 875 (1986). Failure to comply shall be grounds for vacating the sentence. 42 Pa.C.S.A. § 9721(b).

In the case presently before this court, in addition to reviewing a presentence report which enumerated appellant’s prior criminal convictions and reviewing a psychiatric report which made reference to appellant’s drug habit, the sentencing judge merely concluded, saying:

Mr. Vinson, the court, reviewing this entire matter, feels to sentence otherwise would depreciate this history of prior criminal conduct and what took place here.

The sentencing judge then proceeded to sentence appellant well in excess of the sentencing guidelines.

Similar to the situation in Commonwealth v. Chesson, supra, the sentencing court here failed to indicate that it was even aware of the guidelines’ ranges. We have reviewed the transcript of sentencing and find that nowhere did the court allude to the guidelines, nor indicate that it was aware of the guidelines’ suggested ranges. We also find that the cursory statement of reasons offered to support the sentence may have been insufficient to support even a sentence which fell within the guidelines pursuant to the standard set forth in Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977), and was certainly inadequate to justify a sentence which fell outside of the guidelines. The sentencing court’s more careful enunciation of its reasoning in its written opinion, does not cure the above-stated deficiencies. Commonwealth v. Dorsey, 328 Pa.Superior Ct. 241, 476 A.2d 1308 (1984). Based upon the foregoing, we hold that trial counsel was ineffective in failing to raise an objection to the sentence imposed for robbery. We vacate the sentence and remand for resentencing. Jurisdiction relinquished.

      . The Career Criminal Program was established to promote more efficient prosecution of repeat offenders. Once a defendant is assigned to the program, one prosecutor becomes responsible for the case from pre-trial through the conclusion of the trial, and the case is tried before one of three designated judges. See Commonwealth v. Carter, 347 Pa.Superior Ct. 624, 501 A.2d 250 (1985).

      . The appellant has requested that this court defer decision on this issue because the issues he raises are currently on appeal to the Supreme Court of Pennsylvania in Commonwealth v. Baker, 353 Pa.Superior Ct. 641, 506 A.2d 1333 (1985) (per curiam) (allocatur granted 6/11/86). It is possible that appellant has not adequately briefed this issue due to the assumption that we would defer decision. However, as of the date this decision was authored, Baker had not yet been scheduled for oral argument before the Pennsylvania Supreme Court. Therefore, in the interest of the efficient administration of justice, we proceed to dispose of this issue in accordance with the law as it presently stands.

      . Appellant was convicted of robbery, 18 Pa.C.S.A. § 3701(a)(l)(ii), which has an offense gravity score of "7”, and he had a prior record score of "6". The applicable ranges under the guidelines are:
      minimum: 43-64 months
      aggravated minimum: 64-80 months
      mitigated minimum: 32-43 months
      The actual sentence imposed was 10 to 20 years, or 120 to 240 months.

      . Appellant has also requested that we remand to allow him to file a motion to modify sentence nunc pro tunc on the grounds that he did not knowingly waive his right to file such a motion. Since we have found it necessary to remand for resentencing, we need not address this issue.


text:
    523 A.2d 347
    Nick A. FRISK, Jr., and Ricardi C. Gatto, Appellees, v. The NEWS COMPANY, Appellant.
    Superior Court of Pennsylvania.
    Argued April 30, 1986.
    Filed Sept. 26, 1986.
    Reargument Denied Dec. 8, 1986.
    Petition for Allowance of Appeal Denied July 31,1987.

      Samuel E. Klien, Philadelphia, for appellant.
    John A. Conte, Conway, for Frisk, appellee.
    Scott L. Melton, Conway, for Gatto, appellee.
    Before DEL SOLE, MONTEMURO and POPOVICH, JJ.

      Judge Del Sole did not participate in the consideration or decision of this case.

   MONTEMURO, Judge:

This libel action arose out of the publication of two articles, on May 4 and 7, 1979, respectively, in appellant’s newspaper, the New Castle News. (See Appendix).

Appellees’ case was tried in the Court of Common Pleas of Lawrence County, before the Honorable George P. Kies-ter, Specially Presiding, and a jury. The trial commenced on October 24, 1984, and verdicts were rendered on November 9, 1984, in favor of appellee, Nick A. Frisk, Jr., in the amount of $100,000.00 and in favor of appellee, Ricardi C. Gatto, in the amount of $400,000.00. Subsequently, on November 10, 1984, the jury awarded punitive damages to each of the appellees in the amount of $175,000.00.

Thereafter, both appellant and appellees filed timely motions for post-trial relief. In an opinion and order dated May 20, 1985, the court below denied appellees motions for additur and delay damages, and further directed as follows:

ORDER

NOW, this 20th day of May, 1985, Defendant’s Motion for Judgment N.O.V. is denied.
If Plaintiff, Nick A. Frisk, Jr., files a remittitur of $125,000 on the punitive damage verdict within 20 days of notice of the filing of this Order, Defendant’s Motion for a New Trial is denied, and it shall be entered on the verdicts as so amended. Otherwise, Defendant’s Motion for a New Trial is granted.
If Plaintiff, Ricardi C. Gatto, files with the Court within 20 days of notice of filing of this order, a remittitur of $125,000 on the punitive damage verdict, Defendant’s Motion for a New Trial is denied and judgment shall be entered on the verdicts as amended.
If a remittitur by Ricardi C. Gatto is not filed, Defendant’s Motion for a New Trial is granted.

On May 28, 1985, each appellee remitted his punitive damage award in excess of $50,000.00. The respective judgments against appellant were accordingly entered eo die and this timely appeal followed.

Judge Kiester ably set forth the pertinent facts underlying this action:

Nick A. Frisk, Jr., and Ricardi C. Gatto brought this libel action alleging they were defamed by front-page articles/news reports which appeared in the New Castle News, a daily newspaper published by the News Company, Defendant. In May of 1979, the time of the publications, Mr. Gatto was president of the Ellwood City Borough Council and Attorney Frisk was borough solicitor. The news reports were written by Dan Callahan, a reporter for Defendant, and they related to the 1976 zoning of, property in Ellwood City owned by Attorney Frisk.
The news story was based on an interview which Reporter Dan Callahan had with Roy Meehan and Martin Kovach following a meeting of the Ellwood City Planning Commission the evening of May 3, 1979. Mr. Meehan and Mr. Kovach were members of the Planning Commission.
The news item published May 4, 1979, was titled in large letters (V2 inch high extending in length 11 inches)
‘Officials expose tampered map’
The second news item published May 7, 1979, contained a photograph of the Frisk property on Fountain Avenue. Below the picture in large print were two titles:
‘Involving Frisk property’
‘Three zoning maps altered’
Each of the news items clearly, indisputably infer that Mr. Gatto and Attorney Frisk in 1976 had engaged in illegally altering the Ellwood City zoning map for the benefit of the Frisk property.
Primary elections were scheduled for May 15, 1979. It is highly noteworthy that Mr. Kovach, Mr. Meehan and Mr. Gatto were candidates for city council. Mr. Gatto blamed his defeat on the news stories written by Mr. Callahan and published on May 4, 1979, and May 7, 1979, in the New Castle News.
The evidence establishes that in July, 1976 Attorney Frisk and fourteen other property owners had requested zoning changes. The requested changes were placed by borough employees on various ‘working’ maps to aid the Commission in understanding what the applicants requested. The zoning change requested by Attorney Frisk in 1976 had been denied by the Commission and was not included in the proposed zoning map, later approved by the Commission and submitted to the Borough Council for adoption.
After reading the May 4 article, Attorney Frisk that same evening made numerous phone calls including several to Mr. Callahan and Mr. Vosburg who was the managing editor of the New Castle News. Attorney Frisk offered proof that the accusation was false. He demanded a retraction and the printing of ‘his side of the story.’
Attorney Frisk had been present in the borough building the evening of May 3. He had seen Mr. Callahan. Attorney Frisk demanded an explanation from Mr. Callahan as to his reason for not asking him at that time about the truth of falsity of the accusation. Mr. Callahan agreed to meet with Mr. Frisk at the Frisk law office on Saturday, May 5, 1976 [sic], at 9 A.M. When Mr. Callahan did not appear that morning, Attorney Frisk phoned and was told that Mr. Vosburg, the managing editor, was in charge of the story.
The false statements and inferences were re-published by Defendant on May 7, 1979. The denials transmitted to Defendant by Attorney Frisk were not published.
On Tuesday, May 8, 1979, Attorney Frisk obtained a statement from Thomas A. Stoner who had been administrative assistant to the borough manager in 1976. This statement explained the work maps and what had been done with these maps in 1976. A copy of this explanation was given to the New Castle News on May 9 or May 10, 1979. Neither the statement of Mr. Stoner nor the denials of Mr. Frisk and Mr. Gatto were published.
At trial Mr. Callahan who was available to both parties was not called as a witness. The Court sustained Defendant’s objection to Plaintiff’s offer of the deposition of Mr. Callahan. The reason was that the deposition failed to meet the requirements of the Rules of Civil Procedure.
Witnesses for Plaintiffs testified that the reputations of the Plaintiffs had been harmed by the news stories. On the other hand, defense witnesses testified that the reputations of the Plaintiffs for honesty and integrity prior to May 4, 1979 was [sic] bad.
The foregoing is an abbreviated version of the evidence in the case. The evidence is undisputed that neither Attorney Frisk nor Mr. Gatto or anyone else had altered the borough zoning maps.

Lower court opinion at 4-7.

As framed by appellant in its “Statement of the Questions Involved”, the following issues are presented for our consideration:

1. Was the jury verdict in this public official defamation action against the weight of the evidence in that Plaintiffs [appellees] failed to prove by 'clear and convincing evidence,’ that the articles in suit were published with actual malice?
2. Was Defendant [appellant] denied due process of law by the trial court’s Order, which precluded cross-examination of Plaintiffs and their reputation witnesses on Plaintiffs’ involvement in public events, an involvement which was at odds with their sworn testimony and was centrally relevant to the damages sought?
3. Is Defendant entitled to a new trial because the damage award was predicated on counsel’s remarks, found by the trial court to be prejudicial, and because the compensatory award is grossly excessive?

Appellant’s brief at 3.

In reviewing the denial of appellant’s motion for judgment non obstante veredicto, we are guided by the standard established in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). It is undisputed that appellees herein were “public figures” and therefore the first amendment, as interpreted in Sullivan, 376 U.S. at 279-80, 84 S.Ct. at 725-26, precludes recovery in the absence of clear and convincing evidence that appellant’s allegedly defamatory series was published with “ ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. In Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984), the Supreme Court recently noted:

The burden of proving ‘actual malice’ requires the plaintiff to demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubt as to the truth of his statement. See, e.g., New York Times Co. v. Sullivan, 376 US, at 280, 11 L.Ed.2d 686, 84 S.Ct. 710, 95 ALR2d 1412; see also Gertz v. Robert Welch Inc., supra, 418 US [323], at 342, 41 L.Ed.2d 789, 94 S.Ct. 2997[, at 3008]; St. Amant v. Thompson, 390 US 727, 731, 20 L.Ed.2d 262, 88 S.Ct. 1323 (1968); see generally W. Prosser, Law of Torts 771-772, 821 (4th ed 1971).

Id. 466 U.S. at 511, n. 30, 104 S.Ct. at 1965. Furthermore, in St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, n. 30, 20 L.Ed.2d 262 (1968), the Court instructed:

[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.

Id. at 731, 88 S.Ct. at 1325. See also Sprague v. Walter, 357 Pa.Super. 570, 516 A.2d 706 (1986).

As an appellate court, we additionally are mindful that in cases of this nature the Supreme Court has directed that we conduct a fully independent review of the evidence adduced to avoid any “forbidden intrusion on the field of free expression.” Sullivan, 376 U.S. at 285, 84 S.Ct. at 728. See also Bose, Corp., supra; Time, Inc. v. Page, 401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971); Sprague, supra.

We have reviewed in toto the over two thousand pages of trial testimony generated by this action. The facts as found by the court below, and as set forth above, accurately detail the circumstances demonstrated by the record before us. With respect to the instant issue, the court below concluded, “There is lacking evidence that Defendant published the defamatory statements with knowledge of their falsity. On the other hand, the evidence is clear and convincing that Defendant published the articles with reckless disregard for the falsity.” Lower court opinion at 8. We agree.

The opening sentence of the May 4th, 1979 article sets the tenor: “Ellwood City Borough Council president Rick Gatto gave the Borough’s Planning Commission a zoning map in 1976 that was illegally altered to benefit borough solicitor Nick A. Frisk.” Imputations of unlawful conduct on the part of Mr. Frisk and/or Mr. Gatto continue throughout the May 4th article and are reasserted even more expansively in the subsequent May 7th article. As demonstrated at trial, neither Mr. Frisk nor Mr. Gatto engaged in any wrongful conduct. The alterations appearing on the commission’s “working” maps were executed at the behest of the commission itself by the assistant borough manager, Thomas Stoner.

The publication of the May 4th and 7th articles is marked by the clear departures from acceptable journalistic procedures: (1) the utter lack of adequate pre-publication investigation; (2) the use of wholly speculative accusations and accusatory inferences; and (3) the failure to utilize or employ effective editorial review. We therefore are of the opinion that appellees have sufficiently proven that appellant must have entertained serious doubts as to the truth of its publications. See St. Amant, supra.

Accordingly we affirm the denial of appellant’s motion for judgment n.o.v.

Appellant’s next general contention is that the court erred in limiting appellant’s cross-examination of appellees and of appellees’ reputation witnesses. The court below ruled impermissible any questioning by appellant concerning other negative publicity implicating appellees in unrelated political and professional controversies. Preliminarily, we reiterate,

The scope and extent of cross-examination traditionally rests within the sound discretion of the trial judge. ‘[Considerable latitude must be left to the trial judge, and his action will not be reversed in the absence of an abuse of discretion or unless an obvious disadvantage resulted therefrom to the other party.’ Woodland v. Philadelphia Transport Co., 428 Pa. 379, 386, 238 A.2d 593, 596 (1968).

Cooper Plumbing, Inc. v. Macioce, 225 Pa.Super. 236, 238, 310 A.2d 411, 412 (1973).

During its cross-examination of both Mr. Frisk and Mr. Gatto, appellant attempted to introduce evidence of newspaper articles published principally in another local newspaper, the Ellwood City Ledger, which were unfavorable to appellees. Appellant’s theory was that such evidence should be admissible in mitigation of the damages which appellees claimed resulted from appellant’s May 4th and 7th articles. Citing our supreme court’s opinion in Bausewine v. Norristown Herald, Inc., 351 Pa. 634, 41 A.2d 736, cert. denied, 326 U.S. 724, 66 S.Ct. 29, 90 L.Ed. 429 (1945), the court denied the proffered evidence and restricted any related questioning. In Bausewine, a local police chief sued the publisher of the Norristown Times Herald newspaper for libel. The appellant/newspaper therein subsequently moved for a new trial on the basis of after-discovered evidence in that, following the trial of appellee’s libel action, appellee was found guilty in local criminal court of accepting a bribe and of nonfeasance in office. The Bausewine court observed,

At most, it was a subsequently transpiring occurrence which if known at the time of the trial now under review, would not have been admissible. The learned court below therefore correctly overruled that ground as furnishing no reason for a new trial. While it is permissible to show that one claiming damages for injury to his reputation has a bad reputation, proof of separate acts of bad conduct or guilt of criminal offenses is not admissible on an issue of general reputation, not even to mitigate damages. Pease v. Shippen, 80 Pa. 513, 515, 516, 21 Am.Rep. 116. Moreover, that issue must be related to the time of the alleged injury. Hopkins v. Tate, 255 Pa. 56, 60, 61, 99 A. 210. Nor was the plaintiffs conviction relevant to the defamation in the defendant’s publications. Cf. Moyer v. Moyer, 49 Pa. 210, 211; Conroe v. Conroe, 47 Pa. 198, 201.

Id., 351 Pa. at 646, 41 A.2d at 742 (emphasis added).

Appellant’s attempt to use articles detailing unrelated specific acts of misconduct by appellees in order to mitigate damages was properly thwarted. We similarly so hold with respect to appellant’s attempt to use the same or similar unrelated articles to test the credibility of appellee’ reputation witnesses.

We find the appellant’s proposed usages of the articles to have been impermissible, and within the trial court’s discretion to limit, for the following reasons: (1) the subject matter of the articles offered were wholly unrelated and irrelevant to the accusations contained in appellant’s May 4th and 7th articles, Bausewine, supra; (2) any probative value which the articles may have possessed was substantially outweighed by the danger of unfair prejudice to appellees, confusion of the issues and misleading the jury, Daset Mining Corp. v. Industrial Fuels Corp., 326 Pa.Super. 14, 22, 473 A.2d 584, 588 (1984); and (3) the use of specific acts of misconduct in mitigation of damages is “wholly without bearing on the proposition in issue; that is, they show merely, in the neat phrase of Mr. Justice Cave, ‘not that the plaintiff has not, but that he ought not to have, a good reputation’ (Scott v. Sampson, [1881-1885] All E.R. 628, 8 Q.B.D. 491, 505 (1881)),” 1A Wigmore, Evidence § 70.2 (Tillers rev.ed. 1983). Furthermore, appellant, through its own witnesses, was able to rebut appellees’ damage claims and reputation witnesses. As the court below observed, “Defendant called several witnesses including those who made the defamatory statements. These witnesses were articulate and impressive in their testimony as to the bad reputations of the Plaintiffs. The record establishes that Attorney Frisk at least was a controversial person in Ellwood City.” Lower court opinion at 8.

Appellant’s next argument is that the punitive damage awards must be stricken as having been influenced by an allegedly improper remark during the closing argument by Mr. Frisk’s counsel. Addressing the jury with respect to punitive damages, counsel stated:

[MR. CONTE:] I would like to say I also participated to some extent in that because I also had faith in the jury system and from the compensatory verdict, yes, I will receive what we call a contingent fee, forty percent as the attorney. I have faith this will be done. My associate and I will receive such a fee.

N.T. November 10, 1984, at 280. Appellant’s counsel thereupon immediately objected:

MR. AUDINO: Pardon me, Your Honor, I have to object to this. By introducing the fee he is going to get out of the compensatory award, he is saying to this jury now the amount of that award is going to be reduced by my fee. That is his argument for the punitive damages.

Id.

As we found in Austin v. Harnisk, 227 Pa.Super. 199, 205, 323 A.2d 871, 874 (1974), “As to an allegedly inflammatory remark made by defense counsel in his closing argument, we find that any prejudicial effect of the remark was cured by the court’s instruction to the jury to disregard it. See Commonwealth v. Cisneros, 381 Pa. 447, 113 A.2d 293 (1955).” In the instant case, upon the objection of appellant’s counsel, the court below instructed the jury as follows:

THE COURT: That is totally irrelevant and the jury is instructed to disregard that. What arrangement the parties have is not in the record here, and this is introducing something else to the — into the case and this will be stricken from the record, and I instruct the jury to ignore that statement by Mr. Conte.

N.T. November 10, 1984, at 281-82.

While we find that the contemporaneous instruction to the jury cured any effect which the remark may have otherwise had upon the punitive damage awards, we note that the awards were ultimately remitted by approximately seventy percent (70%). In its opinion, the court below stated:

During closing arguments on punitive damages, Plaintiff's counsel referred to a 40 percent fee arrangement which was not a matter of record. This was improper, prejudicial argument which the Court instructed the jury to ignore. As noted by defense counsel, the award of $175,000 in punitive damages to each Plaintiff would leave each Plaintiff with the full amount of the compensatory verdict.
Under the circumstances it is the opinion of the Court that a fair, reasonable amount in punitive damages would be $50,000 for each Plaintiff. This amount when considered with the compensatory verdicts inflicts adequate punishment and penalty on Defendant.

Lower court opinion, at 11.

Appellant’s argument that the punitive damage awards must be stricken due to the perceived effect of counsel’s remarks is clearly without basis.

Furthermore, in light of the significant remittiturs ordered herein, we find appellant’s allegation that the punitive damages were excessive to be specious at best. In Daley v. John Wanamaker, Inc., 817 Pa.Super. 348, 353, 464 A.2d 355, 357-58 (1983), we observed that it is within a trial court’s discretion to order remittiturs of excessive verdicts. The court below found the punitive damages awarded herein to have been excessive yet nevertheless found a modified amount of punitive damages to have been warranted. We are of the opinion that the trial court acted properly and that, in light of the extreme departure from acceptable journalistic practices evidenced herein, the judgment ultimately entered with respect to punitive damages were appropriate. See Marcone v. Penthouse International, Ltd., 577 F.Supp. 318 (E.D.Pa.1983), rev’d, 754 F.2d 1072 (3d Cir.) cert. denied, — U.S. —, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Purcell v. Westinghouse Broadcasting Co., 411 Pa. 167, 191 A.2d 662 (1963).

With respect to the compensatory damage awards, appellant urges that the court below improperly charged the jury. Appellant takes issue with the following instruction:

If you find the the Defendant acted either negligently or with reckless disregard in publishing a false and defamatory communication, you may presume that the Plaintiff suffered both injuries to his reputation and the emotional distress, mental anguish, and humiliation such as would result from such a communication. This means you need not have proof that the Plaintiff suffered emotional distress, mental anguish and humiliation in order to award him damages for such harm because such harm is presumed by the law when a defendant publishes a false and defamatory publication with the knowledge that it is false or in reckless disregard of whether it is true or false.

N.T. November 9, 1984, at 227 (emphasis added).

The Civil Instructions Subcommittee proposed the following pertinent instruction, defining, in part, defamation damages:

B. If you find that the defendant acted either intentionally or recklessly in publishing the false and defamatory communication you may presume that the plaintiff suffered both injury to his reputation and the emotional distress, mental anguish and humiliation such as would result from such a communication. This means you need not have proof that the plaintiff suffered emotional distress, mental anguish and humiliation in order to award him damages for such harm because such harm is presumed by the law when a defendant publishes a false and defamatory communication with the knowledge that is false or in reckless disregard of whether it is true or false.

Pa.S.S.J.I. (Civ) 13.10(B). As is evident, the instruction provided by the court below mirrors, in all material respects, that proposed by the subcommittee, and both are in complete accord with the Supreme Court’s decision in Gertz v. Robert Welch, Inc., 418 U.S. 823, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (recovery of presumed damages is constitutionally permissible where liability is based on a showing of “actual malice”). With regard to this issue, we are of the opinion that further comment is unnecessary.

Finally, appellant argues that the compensatory damage awards were excessive. In Baird v. Dun & Bradstreet, 446 Pa. 266, 285 A.2d 166 (1971), our supreme court observed:

[T]he grant of a new trial because the verdict was excessive (or inadequate) lies within the sound discretion of the trial Court and will be sustained by an appellate Court in the absence of a clear abuse of discretion or an error of law which controlled the verdict or the outcome of the case. Black v. Ritchey, 432 Pa. 366, 248 A.2d 771; Tranter v. Mandelbaum, 427 Pa. 326, 234 A.2d 845; Connolly v. Philadelphia Transportation Company, 420 Pa. 280, 216 A.2d 60.

Id., 446 Pa. at 276, 285 A.2d at 172. The trial court herein concluded, “It is the opinion of the Court that the awards of compensatory damages to Nick A. Frisk, Jr. and Ricardi C. Gatto is [sic] not excessive and should not be reduced.” Lower court opinion, at 10.

Having carefully considered appellant’s brief and the evidence adduced, we are of the opinion that, in so concluding, the trial court neither abused its discretion nor erred with respect to the pertinent law.

In light of the foregoing, we affirm the judgments entered below.

Judgments affirmed.

      . We note that, at 69 pages of conventional typographical printing, appellant’s brief grossly violates Pa.R.A.P. 2135. However, given the duration and complexity of the proceedings below, we will invoke Pa.R.A.P. 105 and accordingly “disregard the requirements or provisions” of Rule 2135.

      . With respect to appellant’s cross-examination of Mr. Gatto, the court below permitted appellant to utilize portions of a letter written to the Ellwood City Ledger by Mr. Gatto in which he attributed to certain Ellwood City Ledger articles damages herein claimed as resulting from appellant’s articles. However, in all other respects, the limitations on the use of unrelated articles in the cross-examinations of both Mr. Frisk and Mr. Gatto were identical.

      . Appellant additionally argues that the court below erred in not permitting the use of articles published prior to the May 4th, 1979, unfavorable to appellees, for the purpose of demonstrating appellant’s “state of mind”, i.e., appellant’s reason to believe in the truth of its accusations. In so far as appellant appears not to have raised this issue at trial and to have failed to suggest it instantly in appellant’s "Statement of the Questions Involved,” the issue would seem waived. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974); Pa.R.A.P. 2116. Nevertheless, appellant’s contention is patently untenable in that the articles, which appellant allegedly relied upon in presuming the truth of its own accusations, bore no substantive similarity to appellant’s accusations. See Sharon v. Time Inc., 103 F.R.D. 86 (S.D.N.Y.1984)

      . Appellant has additionally argued that punitive damages are constitutionally impermissible in "public figure" libel actions. Again in so arguing appellant has violated Pa.R.A.P. 2116. Nevertheless, we readily dispose of this argument by quoting Mr. Justice Harlan in Curtis Publishing Co. v. Butts, 388 U.S. 130, 161, 87 S.Ct. 1975, 1994, 18 L.Ed.2d 1094 (1967), wherein he stated with respect to libel actions:
      We would hold therefore, that misconduct sufficient to justify the award of compensatory damages also justifies the imposition of a punitive award, subject of course to the limitation that such award

        ís not demonstrated to be founded on the mere prejudice of the jury.