author: TAMILIA, Judge:

text:
    486 A.2d 441
    COMMONWEALTH of Pennsylvania v. Alan A. BROWN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1984.
    Filed Dec. 14, 1984.
    Reargument Denied Jan. 28, 1985.

      Irene H. Cotton, Philadelphia, for appellant.

      Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

Appellant was arrested on June 23, 1980 and subsequently charged with attempted burglary, criminal conspiracy, possessing an instrument of crime and prohibited offensive weapons. On November 20 and 24, 1980, appellant, represented by a public defender, was tried along with co-defendant, Theodore Skalski, before the Honorable Judith J. Jami-son, sitting without a jury. On November 24, 1980, appéllant was found guilty of attempted burglary, criminal conspiracy and possessing a prohibited offensive weapon for his participation in a scheme to burglarize a house. No post-verdict motions were filed and on April 2, 1981, Judge Jamison imposed concurrent sentences of eighteen months to ten years for the attempted burglary conviction and eighteen months to five years for the conspiracy conviction. Sentence -was suspended on the remaining conviction of possessing a prohibited offensive weapon. Appellant thereafter filed a pro se petition for reconsideration of }sentence which was denied.

While represented by new counsel, appellant filed an appeal from the judgment of sentence. However, on May 26, 1982, this Court remanded the matter to the lower court without prejudice to appellant’s right to raise issues in appropriate post-conviction proceedings. On August 12, 1982, appellant filed a petition under the Post-Conviction Hearing Act (hereinafter PCHA) and subsequently, on January 6, 1983, a hearing was held before the Honorable Edward J. Blake. On January 17, 1984, the PCHA court denied appellant’s petition and the instant appeal followed.

Appellant first argues that he was denied a fair trial when, during the jury trial waiver colloquy, the trial judge asked appellant if he was a drug addict. In the course of the colloquy, the trial judge asked the appellant:

Q. Are you addicted to drugs or alcohol?
A. Not right now I am not. I had a drug problem at one time.
Q. Have you had any drugs or alcohol or any intoxicants within the past twelve hours?
A. No, Your Honor.

(N.T. 6). Appellant contends that this exchange denied him the right to be tried by an impartial judge since it established a motive for the attempted burglary and implied the existence of a prior criminal record. We disagree with appellant’s claim and deny it for the following reasons.

First, appellant’s answer does not indicate that he was addicted to drugs at the time of the incident in question. Our review of the record leads us to conclude that the trial judge asked the above question in an attempt to guarantee that the appellant was of a sound and competent mind during the jury trial waiver colloquy. Contrary to appellant’s contentions, the answer at issue was elicited to ensure the fairness of the proceedings and reflected the trial judge’s concern that the appellant be capable of making a valid jury waiver. Moreover, even assuming that the above question was prejudicial, the degree of prejudice was insufficient to merit relief. We point out that appellant was tried before the court without a jury and trial judges, sitting as fact finders, are presumed to ignore prejudicial evidence. Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Moody, 295 Pa.Super. 106, 115 n. 1, 441 A.2d 371, 375 n. 1 (1982). Furthermore, in light of the overwhelming evidence of guilt, we fail to see how appellant’s answer to the above question would have contributed to the verdict. Commonwealth v. Thornton, 494 Pa. 260, 431 A.2d 248 (1981). As this claim has no merit, trial counsel cannot be deemed ineffective for failing to preserve it. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Finally, under the recent United States. Supreme Court decision in Strickland v. Washington, 466 U.S. —, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984) (cited favorably by this Court in Commonwealth v. Garvin, 335 Pa.Super. 560, 485 A.2d 36 (1984); also cited favorably and quoted extensively in Commonwealth v. Litzenberger, 333 Pa.Super. 471, 482 A.2d 968 (1984)), not only possible prejudice, but prejudice such as would undermine the integrity of the verdict must be clearly demonstrated. Here, the appellant has failed to establish the necessary degree of prejudice to satisfy this requirement.

Appellant next contends that there was insufficient evidence to convict him of attempted burglary. The trial evidence, viewed in a light most favorable to the Commonwealth as verdict winner, established the following. On June 23, 1980, at approximately 9:00 p.m., members of the Philadelphia Police Department were conducting a surveillance of appellant, co-defendant Skalski and Marlene Papa as they sat in a car parked in a store lot. The police witnessed Skalski go to the front door of an unlit house and knock on the door for about five minutes. Skalski returned to the car and the appellant went to the back of the house. A detective stationed near the rear of the house saw appellant break the glass in the back door and kick and bang on the door. About ten minutes later, appellant returned to the car, talked to Skalski, removed a shiny object from the trunk and returned to the back of the house. About ten minutes later, appellant again returned to the car. Appellant and Skalski then pulled out of the lot, drove away briefly, and then came back to the lot. For the third time, appellant went to the rear of the house for another ten or fifteen minutes and then returned to the car. Immediately thereafter, the police arrived and placed all of the occupants of the car under arrest. The officers found a bent screwdriver and hammer in the car, and, while searching appellant, discovered a nine inch switchblade in his pocket. The detective who examined the rear of the house testified that he found glass from the door on the pavement and that the doorknob and a strip of molding from the side door were also on the ground. Additionally, there were pry marks in the wood next to the door locks. Appellant stipulated to the owner’s testimony that the door was intact when she left in the morning and that no one had permission to enter her house.

The test for determining the sufficiency of the evidence in a criminal case is whether, viewing all of the evidence admitted at trial in a light most favorable to the Commonwealth, and drawing all proper inferences therefrom, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt. Commonwealth v. Tribble, 502 Pa. 619, 467 A.2d 1130 (1983). Moreover, any element of the crime may be established wholly by circumstantial evidence, Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980), and issues of credibility are left to the trier of fact for resolution. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976).

So viewed, we find that the testimony of the four police officers who were present at the scene of the crime and the stipulated testimony of the homeowner provided sufficient evidence to sustain appellant’s conviction for attempted burglary. See, e.g., Commonwealth v. Lewis, 319 Pa.Super. 33, 465 A.2d 1038 (1983). Here, appellant’s repeated trips to the unoccupied house, his banging and kicking the back door and breaking its glass, and his possession of a hammer and bent screwdriver, taken together with the physical evidence (i.e., the pry marks on the door and the broken doorknob), clearly provide sufficient evidence to establish the crime of attempted burglary. Additionally, trial counsel cannot be deemed ineffective for failing to raise sufficiency of the evidence motions where the claim has no merit. Commonwealth v. Brown, 320 Pa.Super. 80, 466 A.2d 1071 (1983).

Appellant’s final claim for relief is that he was improperly sentenced for more than one inchoate crime under Section 906 of the Crimes Code which provides:

Section 906. Multiple Convictions Barred
A person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.

18 Pa.C.S.A. § 906. As this statute bars multiple convictions for inchoate offenses, we find that the sentences imposed on the attempted burglary and conspiracy convictions must merge under existing law as both offenses were the result of “conduct designed to commit or to culminate in the commission of the same crime.” 18 Pa.C.S.A. § 906. See Commonwealth v. Martinez, 293 Pa.Super. 260, 438 A.2d 984 (1981). Consequently, we vacate the sentence on the conspiracy conviction.

Regarding the sentence imposed on the prohibited offensive weapon conviction, our review of the record indicates that appellant’s possession of a switchblade was not designed to commit or to culminate in the commission of a burglary since the burglary tools were discovered separately in the car (N.T. 90-93). Moreover, mere possession of a prohibited offensive weapon is sufficient to sustain a conviction without any proof of an intent to employ such item criminally. Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975). Furthermore, in Commonwealth v. Zappacosta, 265 Pa.Super. 71, 401 A.2d 805 (1979), this Court held that Section 906 was intended to apply only to the offenses of conspiracy, solicitation and attempt. Thus, Section 906 does not bar appellant’s multiple convictions for attempted burglary and possessing a prohibited offensive weapon.

Accordingly, the judgment of sentence for conspiracy is vacated. Judgments of sentence for attempted burglary and possessing a prohibited offensive weapon are affirmed. The Order denying appellant’s petition for post-conviction relief is affirmed.

      . 18 Pa.C.S.A. § 901.

      . 18 Pa.C.S.A. § 903.

      . 18 Pa.C.S.A. § 908.

      . 42 Pa.C.S.A. § 9541 et seq., formerly 19 P.S. § 1180-1 et seq.

      . It should be noted that a defendant could deny taking drugs within a twelve hour period and still be incapable of making a valid jury trial waiver due to the pain and trauma of withdrawal from drug addiction.

      . Since the trial judge imposed concurrent sentences on these crimes of the same degree, we conclude that a remand for resentencing is not necessary as it would not result in a change in the sentence. See Commonwealth v. Watts, 319 Pa.Super. 137, 465 A.2d 1267 (1983.)


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    486 A.2d 445
    COMMONWEALTH of Pennsylvania v. Robert A. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 15, 1984.
    Filed Dec. 14, 1984.

      Robert A. Smith, in propria persona.
    Daniel J. McDevitt, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WICKERSHAM, JOHNSON and HOFFMAN, JJ.
   PER CURIAM:

Appellant, Robert A. Smith, appeals pro se from the order of the Court of Common Pleas of Lebanon County dismissing his petition for writ of habeas corpus.

Appellant was charged with robbery and criminal conspiracy in April of 1979. He pleaded guilty on June 27, 1979 as part as a plea bargain. He was subsequently sentenced to concurrent sentences, of one (1) to three (3) years imprisonment at Lebanon County Prison, and to pay costs, $500.00 in fines, and restitution of $371.00 to Giant Foods, the site of the robbery. At some point, which is unclear from the record, appellant was recommitted to the Lebanon County Prison by the State Parole Board for various infractions of his parole, with a new maximum to January 13, 1984.

On February 22, 1983, appellant filed a pro se petition for a writ of habeas corpus against Robert Raiger, the Warden of the Lebanon County Prison. Basically, appellant alleged a violation of the due process clause of the fourteenth amendment, in that he lacked access to an adequate law library. Following a hearing on February 25, 1983, at which an attorney from the Public Defender’s Office was present, appellant’s petition was refused. On March 4, 1983, appellant filed another pro se petition for a writ of habeas corpus, this time concerning his pre-release status. This petition was likewise refused three days later. On March 25, 1983, appellant filed this timely appeal from the February 25, 1983 order.

Appellant asks us to determine whether he is entitled to relief due to the lack of an adequate law library. However, presently before us is the Commonwealth’s motion to dismiss the appeal. The Commonwealth contends that this appeal has been rendered moot by the fact that appellant is no longer a prisoner at the Lebanon County Prison and thus no longer suffers from the alleged lack of an adequate law library.

The general rule is 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); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976). Because 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 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 had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way — changes in the facts or in the law — which allegedly deprive the litigant of the necessary stake in the outcome. The mootness doctrine requires that “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” G. Gunther, Constitutional Law 1578 (9th ed. 1975).

In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978). It is well established that the appellate courts of this Commonwealth will not decide moot or abstract questions. Id.; Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., 407 Pa. 230, 180 A.2d 1 (1962); Wortex Mills, Inc. v. Textile Workers Union, 369 Pa. 359, 85 A.2d 851 (1952); Graziano Construction Co., Inc. v. Lee, 298 Pa.Super. 311, 444 A.2d 1190 (1982). As explained in the above quotation, a legal issue can become moot on appeal as a result of. an intervening change in the facts of the case, or an intervening change in the applicable law. See generally In re Gross, supra, 476 Pa. at 209-210, 382 A.2d at 119-120.

There are, however, exceptions to this mootness doctrine. One such exception is when the question presented is one of great public importance. In re Gross, supra; Meyer v. Strouse, 422 Pa. 136, 221 A.2d 191 (1966); Ridley Park Shopping Center, Inc. v. Sun Ray Drug Co., supra; Wortex Mills, Inc. v. Textile Workers Union, supra; Graziano Construction Co., Inc. v. Lee, supra; Janet D. v. Carros, supra; Commonwealth ex rel. Watson v. Montone, supra. As a reading of the case law cited above indicates, however, our appellate courts have infrequently invoked the “great public importance” exception. Another exception is when the question presented is one capable of repetition yet escaping judicial review. Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); Roe v. Wade, supra; In re Gross, supra; Wiest v. Mt. Lebanon School District, 457 Pa. 166, 320 A.2d 362, cert. denied, 419 U.S. 967, 95 S.Ct. 231, 42 L.Ed.2d 183 (1974); Devlin v. Osser, 434 Pa. 408, 254 A.2d 303 (1969); Graziano Construction Co., Inc. v. Lee, supra; Janet D. v. Carros, supra. Another exception occurs when one of the parties to the controversy will continue to suffer some detriment from the lower court’s decision. In that case, the appeal will usually be heard, despite its mootness. Janet D. v. Carros, supra.

The question presented in this appeal is clearly moot. By its very nature, a petition for a writ of habeas corpus is appropriate only where the relator is in custody. Where a relator has been released on bail and is no longer in the custody of the superintendent of the county prison, a habeas corpus proceeding against the superintendent is moot, and an appeal from the refusal of the writ will be dismissed. Commonwealth ex rel. Maisels v. Baldi, 172 Pa.Super. 19, 92 A.2d 257 (1952). Accord, Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760, cert. denied, 442 U.S. 918, 99 S.Ct. 2841, 61 L.Ed.2d 286 (1979); Commonwealth ex rel. Yambo v. Jennings, 220 Pa.Super. 186, 286 A.2d 909 (1971). Appellant’s appeal is rendered moot by the intervening change in the facts of his case, i.e., his release from the custody and control of the Lebanon County Prison in January of 1984. Thus, appellant no longer suffers from any alleged unconstitutional inadequacy of the Lebanon County Prison law library. Appellant no longer has any stake in the outcome of this case.

Furthermore, no exception to the mootness doctrine applies herein. Neither party to the controversy (appellant and Warden Raiger) continues to suffer any detriment from the lower court’s decision. While the question of the adequacy of law libraries available to indigent county prisoners is certainly important, we do not feel that it is a question of great public importance as required in cases such as Janet D. v. Carros, supra. Additionally, our courts are even more reluctant to decide moot questions which raise constitutional issues. In re Gross, supra. “Constitutional questions are not to be dealt with abstractly.” Wortex Mills, Inc. v. Textile Workers Union, supra 369 Pa. at 370, 85 A.2d at 857.

Finally, while at first glance, the instant case appears to fall within the exception of cases capable of repetition yet evading judicial review, upon closer examination we find it does not.. Appellant was originally sentenced in 1979 to concurrent terms of one to three years in the Lebanon County Prison. He did not raise this issue until 1983, near the end of his term (which had been extended somewhat due to parole violations). Due to the present realities and caseload of the appellate courts, he was released from custody before his case came up on appeal. While appellant does not argue that he might again some day be a prisoner in Lebanon County or that other Lebanon County prisoners wishing to use the law library face the same time problems he did, we have carefully considered the possibility that this same situation may reoccur in the future. However, we do not find that this is an issue that necessarily evades review. The Sentencing Code provides that a convicted person sentenced to a maximum term of two years or more, but less than five years, may be committed to a county prison. 42 Pa.C.S. § 9762(2). Therefore, there are situations in which enough time would be available for a county prisoner to petition for a writ and then appeal a denial of that writ. Thus, we conclude that the instant appeal does not present a question that necessarily evades review.

Since appellant seeks relief through a habeas corpus proceeding on the basis of an inadequate law library for a prisoner of the Lebanon County Prison, and since appellant no longer suffers from this alleged unconstitutional condition, we find that the matter before this court is moot, and we dismiss the appeal under Pa.R.A.P. 1972(4).

Appeal dismissed.

      . For some unexplained reason, the petition for writ of habeas corpus was mistakenly docketed under appellant’s criminal action number in the original robbery-conspiracy case, and was thus referred to the District Attorney's Office of Lebanon County.

      . Actually, appellant raises two issues, the remaining one being whether he was entitled to judgment against the Warden as a matter of law. However, other than its bare listing under "Statement of Question Involved," this issue is never again mentioned or addressed in the rest of the brief; therefore we do not address it either. In any case, it appears to be simply a rephrasing of the other issue, which, due to the result of this case, we do not address on its merits.

      . The Commonwealth advises us that on September 22, 1983, six months after his appeal was filed, appellant was furloughed from the Lebanon County Prison for an indefinite period of time. That' indefinite furlough expired on January 13, 1984, when appellant had "maxed out.” This is substantiated by a copy of a court order attached to the motion to dismiss, directing the furlough and termination. The Commonwealth’s last information is that appellant had moved back to - his mother’s home in Dauphin County.

      . However, the relator need not be incarcerated to be in custody. See Commonwealth ex rel. Ensor v. Cummings, 420 Pa. 23, 215 A.2d 651 (1966) (parole); Commonwealth ex rel. Stevens v. Myers, 419 Pa. 1, 213 A.2d 613 (1965) (sentenced imposed but not yet served); Commonwealth ex rel. Paulinski v. Isaac, infra (bail). The consensus of these cases is that, to be in custody, the relator must be subject to conditions and restrictions which restrain his freedom and which are not shared by the general public.


author: HESTER, Judge:

text:
    486 A.2d 449
    Kenneth L. GONZALEZ, Appellant, v. Mary Elizabeth GONZALEZ. Mary E. AFF v. Kenneth L. GONZALEZ, Appellant.
    Superior Court of Pennsylvania.
    Argued October 31, 1984.
    Filed Dec. 28, 1984.

      David McGlaughlin, Media, for appellant; Kathryn L. Hilbush, on brief.
    Richard C. Tinucci, Media, for appellees.
    Before MONTEMURO, BECK and HESTER, JJ.
   HESTER, Judge:

In this appeal, we are asked to review an Order of Court awarding custody of the parties’ minor daughter, Katherine, to her mother, appellee herein. Appellant, Katherine’s father, received liberal visitation rights. However, appellant seeks to be the primary custodian and thus pursues this appeal. Having closely scrutinized the record, we hereby reverse the order of the court below.

The parties were married on June 18,1977, and Katherine was born on May 17,1978. On August 15,1981, the parties separated, with the mother leaving the marital abode. Katherine remained behind with her father. The mother initially moved in with her current husband’s parents, and then into an apartment where her present husband joined her a short time later.

Approximately three weeks after his wife’s departure in 1981, appellant filed a petition for custody. Appellee signed a stipulation dated September 21, 1981, granting custody of Katherine to her father, and requesting visitation of one weekend a month. In 1983, appellee requested and received an increase of visitation to two weekends per month.

Appellee was married in September, 1983, and immediately thereafter, filed a petition seeking custody of Katherine. Two evidentiary hearings were held on May 18, 1984, and June 19, 1984. An Order was entered on June 21, 1984, awarding custody of Katherine to appellee during the school year and for approximately one-half of certain enumerated holidays. This appeal ensued.

The guiding principle in a child custody matter is to reach a decision which serves the “best interests” of the child. Brooks v. Brooks, 319 Pa.Super. 268, 466 A.2d 152 (1983). This interest encompasses the child’s physical, intellectual, emotional, and spiritual well-being. Commonwealth ex rel. Newcomer v. King, 301 Pa.Super. 239, 447 A.2d 630 (1982). In order to achieve this goal, an appellate court must closely scrutinize the factual findings of the lower court. If we ascertain, on review, that those factual findings are not supported by competent evidence, said findings are not binding upon us. Commonwealth ex rel. Springs v. Carson, 470 Pa. 290, 368 A.2d 635 (1977) (Plurality opinion by (now Chief) Justice Nix). Of course, an appellate court has never been bound by deductions or inferences made by a trial court from the facts found. Id. However, where we perceive a gross abuse of discretion by the trial judge, we are duty-bound to interfere with that decision. Id.

Herein, appellant alleges that the lower court abused its discretion in transferring primary care of Katherine to appellee. For the following reasons, we agree with appellant that the lower court abused its discretion by awarding custody to appellee.

The lower court based its decision to award custody to appellee on its finding that appellee never intended to relinquish custody of the child when she departed from the marital domicile. She permitted the child to remain with appellant because she was uncertain as to her immediate plans, and she was unable to afford proper care, insurance, and a home for Katherine. The court concluded that appel-lee had finally established a stable and strong home environment which best served the interest of the child.

We hold that the evidence fails to support the lower court’s conclusion. Our review of the record convinces us that appellee fully intended to relinquish custody of her child to appellant when she departed in August, 1981. At that time, she was employed fulltime, earning $15,000.00 and owned an automobile. Her husband was earning $14,-400.00. She immediately entered into an agreement awarding custody of Katherine to appellant, and adhered to that agreement for two years. Appellee’s sister testified that appellee stated the reason she left her husband was to “have some fun” and that appellee thought the child would be better off with appellant. These facts evince a settled intent on the part of appellee to relinquish her custodial control over Katherine.

In cases of existing custody agreements, the party seeking to modify that agreement must meet the burden of proving a substantial change of circumstances which would warrant such a change. English v. English, 322 Pa.Super. 234, 469 A.2d 270 (1983); Daniel K.D. v. Jan M.H., 301 Pa.Super. 36, 446 A.2d 1323 (1982). Once that substantial change is proven, however, both parents share equally the burden of establishing with which parent the child’s interests would be best served. Id.

Herein, appellee has remarried and currently resides in a single residence dwelling situated on a one and one-half acre tract in Schwenksville, Pennsylvania. Appellee submits that her present lifestyle and environment reflect a substantial change of circumstances which justifies an award of custody to her.

However, as stated above, the scope of inquiry remains a determination of which placement would best serve the child. One vitally important factor to be considered is the effect upon the child of her removal from a known physical environment with an established parental figure.

This Court has repeatedly recognized that a child “becomes strongly attached to those who stand in parental relationship to it and who have tenderly cared for it.” Commonwealth ex rel. Jordan v. Jordan, 302 Pa.Super. 421, 425, 448 A.2d 1113, 1115 (1982), quoting Commonwealth ex rel. Children’s Aid Society v. Gard, 362 Pa. 85, 97, 66 A.2d 300, 306 (1949). When a child receives love, guidance, companionship, and direction from a parent on a consistent basis, a firm foundation is being laid for the child’s future healthy development. Id. The need for a sense of continuity can, in certain cases, be controlling in the custodial decision. English v. English, supra 322 Pa. Super, at 240, 469 A.2d at 273; Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981).

The lower court, in awarding custody to appellee, failed to consider the impact of such a move upon the child. The father’s ability to provide loving care for the child, as proven by his successful record of parenting Katherine for the last three years, was unquestioned. Although there was some discussion about an incident where Katherine contracted lice, we cannot conclude that this isolated incident adversely reflected upon appellant’s ability to care for the child, especially in view of his immediate treatment of this condition.

In the past three years, the father tended to Katherine’s physical needs and exhibited love, affection and concern for the well-being of his daughter. Immediately after appellee departed, appellant engaged the services of a child psychiatrist to alleviate Katherine’s emotional distress. Katherine experienced recurring nightmares, constant crying, and a fear that her father would also leave her and not return. Appellant spends all of his leisure time with his daughter, pursuing activities suitable for a child her age. The Parenting Institute, an organization comprising approximately 20,-000 parents, recently recognized appellant as an outstanding single parent. He was chosen as “parent of the week” and received a regional family award. Finally, appellant expressed a firm belief that Katherine needed stability in her life and that removing her from his custody could lead to emotional trauma and a sense of insecurity in her young life.

The trial judge conceded that both parties were fit parents. At one point he stated that he had “no cause for concern as to the character or fitness of the respective parents in this case, of their respective abilities to adequately care for the child, or of their respective abilities to financially provide for the child.” The lower court further opined that it was not dissatisfied with the school and child care arrangements made by appellant.

In such cases, the trial court must give positive weight to the parent who has been the primary caregiver. See Hugo v. Hugo, 288 Pa.Super. 1, 430 A.2d 1183 (1981). However, this well-enunciated legal principle was not considered by the lower court.

Finally, Katherine expressed a strong preference for remaining with her father. Although the preference of a young child is not controlling, it does constitute an important factor which must be carefully weighed in reaching the custodial decision. In re Custody of Pearce, 310 Pa.Super. 254, 261, 456 A.2d 597 (1983). In response to questioning by the court, Katherine stated repeatedly, “I want to live with Daddy____ Because I love my daddy and I want to stay with him.” Moreover, Katherine made it clear that she did not care for her mother’s husband, although she did express affection for her father’s girlfriend.

A similar situation was before this Court in In re Custody of Pearce, supra. Therein, custody of three year old Tara was transferred from her mother, with whom she had resided since birth, to her father, in spite of her desire to remain with her mother. On appeal, we reversed, having observed:

The record indicates that both parties are fit parents and can provide a suitable home for Tara. Therefore, in this case maintenance of the status quo, along with Tara’s strong preference for remaining with [her mother] should have been decisive.

Id., 310 Pa.Superior Ct. at 262, 456 A.2d at 601. We find this reasoning persuasive and applicable to the case at bar.

Accordingly, we hold that the lower court’s inferences are not supported by the facts; thus, its decision to award custody of Katherine to appellee constitutes an abuse of discretion. The best interests of the child will be served by returning her to the custody of her father. We reverse and remand to the trial court and direct that court to enter an order in accordance with this opinion. The trial court may establish appropriate provisions for partial custody for ap-pellee.

This order granting custody to appellant is, of course, subject to the right of either party to seek a modification of the order and to present evidence to the trial court of a substantial change in circumstances since the date of the last evidentiary hearing.

Jurisdiction is relinquished.

BECK, J., concurred in the result.

      . Appellant also argues that the opinion of the lower court contains insufficient reasons and justification for its order, and warrants a remand for further findings. However, in light of our disposition, we need not address that issue.


text:
    486 A.2d 453
    Kevin Murray SMITH, Appellant, v. Tara Ward SMITH.
    Superior Court of Pennsylvania.
    Argued Sept. 19, 1984.
    Filed Dec. 28, 1984.

      Hubert X. Gilroy, Carlisle, for appellant.
    Thomas J. Williams III, Carlisle, for appellee.
    Before WICKERSHAM, WIEAND and HESTER, JJ.
   HESTER, Judge:

In this appeal, we are asked to review an Order of Court, awarding custody of the minor subject of these proceedings, Kevin Murray Smith, Jr., to the mother during the school year and to the father during summer vacation and certain holidays. The father, appellant herein, contends that the lower court erred in finding that the best interests of the child were met by granting custody to the mother during the academic year. In the alternative, appellant argues that the trial judge should have awarded joint custody whereby the child lived with each parent for six months and attended two different schools each year. We hold that the lower court properly rejected appellant’s contention and we affirm the order granting custody to the mother during the period the child attends school.

Kevin, Jr., was born February 16, 1978. The parties resided in Connecticut, Virginia, and finally Carlisle, Pennsylvania, as the father attempted to find permanent employment. In July of 1981, the parties separated and the mother returned to her hometown of Myrtle Beach, South Carolina. A consent Order was entered on July 21, 1982 establishing a shared custody arrangement which provided that custody of the child was divided equally between the parties throughout the year. The Order explicitly recognized that “the child is not now of school age and will not be entering school until the Fall of 1983, at which time some modification may be necessary.”

On June 27, 1983, the mother petitioned the court for modification of the custody order, alleging that the child was about to enter school and that the periods of custody permitted to the father during the winter months would interfere with the child’s schooling. Following a hearing on August 10, 1983, the court issued a joint custody order whereby the mother was awarded custody of the child throughout the school year and the father received custody during the summer months. Liberal visitation for the noncustodial parent was also provided. The father thereafter pursued this appeal.

Our standard of review in custody cases has recently been clarified by the Pennsylvania Supreme Court in Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). Therein, the Court stated:

an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings[,] ... and, thus, represent a gross abuse of discretion...

Id., 505 Pa. at 237, 478 A.2d at 806 (citation omitted; emphasis in original). The burden rests upon appellant, and not this Court, to demonstrate that the trial court’s decree is manifestly erroneous or constitutes a gross abuse of discretion. Id. In the absence of such proof, we must affirm the decision of the trial judge, who has the singular advantage of observing the demeanor of the parties and hearing the testimony of the witnesses.

Initially, the lower court addressed appellant’s suggestion that the child’s school year be split so that he attended classes for six months in Myrtle Beach and six months in Carlisle. The court reviewed appellant’s testimony that, as a son of an Army officer, he moved frequently as he was growing up and that his constant change of schools caused him no harm. However, the trial judge observed that, in appellant’s case, he had the benefit of a stable family environment and the automatic friendship and companionship of other children in military families.

The trial court agreed with the mother’s belief that attending school in the same system for the full school year was in the best interests of the child. In addition to administrative problems which would be posed by appellant’s proposition, the trial judge cited the extensive literature submitted by both parties on their relative school systems as revealing different teaching materials, methods, and learning paces. Consequently, tracking the child’s educational progress would be a complicated process, filled with gaps in one area and overlapping coverage in others.

Having duly considered the many problems inherent in such a program, the trial judge ruled that the need for stability and force of continuity in the child’s life outweighed the ideal of spending precisely equal time with each parent. Therefore, he determined that the child should attend only one school throughout the academic year. This decision having been made, the lower court went on to determine which parent should have custody of the child during the academic year.

In his excellent 10-page opinion, Judge Hoffer fully and completely reviewed the testimony adduced at trial. The court observed that both parents were fit and loving parents, and constituted sources of great comfort and guidance to their young child. Moreover, the judge noted that both parents enjoyed the support of their parents and extended families in their respective communities. Neither party challenged the other’s fitness as a parent and each admits that their son maintains a good relationship with the other.

Thus, the court was faced with an extremely difficult decision as to where to place the child during the greater portion of the calendar year.

After scrutinizing the record, the trial judge ruled that the mother was in a slightly better position to offer the child more continuity and stability of routine than the father. In reaching this decision, he relied upon the fact that the mother had worked at her present job for several years and had regular hours, whereas the father had recently started a new business, requiring long, although flexible, hours. The trial judge considered this fact and held that appellant’s flexibility, which the mother did not possess in her job, would enable him to visit his son often. In addition, the mother’s family owns several vacation homes in Myrtle Beach, which they have made available to appellant so as facilitate frequent visits. Finally, the factor which tipped the scale in favor of the mother was the spirit of cooperation and freedom from bitterness which the trial judge discerned from his observations of her during the hearing.

Our examination of the record reveals no abuse of discretion on the part of the trial judge. His conclusions were reasonable in light of his factual findings and were fully supported by the testimony adduced at trial. Cases such as this, where two loving competent parents each desire to share in the intimate moments of a child’s life, are the most emotionally rending matters before our courts today, and would have given Solomon pause. An order of shared custody is often employed in these instances, but cannot truly answer the charge of unequal treatment when the child must perforce reside in one locality during the ten month school year. Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984); Ellingsen v. Magsamen, 337 Pa.Super. 14, 486 A.2d 456 (1984).

The court herein sought to ensure frequent and continuing contact with both parents by drafting a joint custody arrangement, by authorizing frequent visitations by the noncustodial parent throughout the year, and by providing that the parties share in the decision-making process with respect to all matters of major concern. We conclude that the trial court’s decision is fully supported by the record and may not be disturbed on appeal.

Order affirmed.

      . The parties are now divorced.

      . The father had written a letter, which was admitted into evidence, directing several derogatory comments at the mother and her upbringing.


text:
    486 A.2d 456
    Karen ELLINGSEN v. Charles F. MAGSAMEN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed Dec. 28, 1984.

      Edward R. LeCates, York, for appellant.
    Harry M. Ness, York, for appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   HESTER, Judge:

This case involves a traditional custodial dispute between the mother and the father of two young children. Rebecca Ann was born on August 24, 1975, and Christopher Scott was born on January 14, 1977. The parties separated on September 20,1977 and were divorced one year later. Since that time, the children have lived for extended periods of time with each parent and have been “snatched” at various times by the non-custodial parent. The order currently presented for our review awards shared legal and physical custody of the children to both parents, with physical custody of the minors to be retained by the mother during the academic school year, and custody to be transferred to the father during the summer months. Visitation is alternatively provided to the other parent during weekends and holidays. From this decision, the father appeals.

It is apparent from the procedural history and the past custodial arrangements in this case that both parties are concerned, loving parents who each desire very much to reside with their children. The children initially lived with their mother following their parents’ separation. The father, who is domiciled in York, Pennsylvania, refused to surrender custody after a period of visitation, and caused the mother to institute legal proceedings to regain her children. By Order of Court dated April 20, 1978, custody of Rebecca and Scott was awarded to their mother with visitation rights granted to the father.

In February of 1981, the father violated the court order and retained custody of the children after a period of visitation. A Petition to Establish Custody was immediately filed by the father and served upon the mother who had moved to Baltimore, Maryland. Having unsuccessfully sought legal redress for the father’s unlawful retention of the children, the mother ignored the hearing and planned to simply retain physical custody as soon as practical. The father was, in fact, awarded legal custody with visitation rights vested in the mother, and the mother thereafter refused to return the children after a visit in June of 1981.

Although the father attempted to enforce the court order, the mother had fled her residence and moved with the children about the country. When he discovered their presence in Baltimore during the Christmas holidays, he regained custody of the children.

From January, 1982, until December, 1982, there was little contact between the children and the mother, who spent that year furthering her education so as to enhance her employment prospects. In December, 1982, she filed a Petition for Custody, and was immediately awarded temporary visitation rights. Following a full hearing in June, 1983, the court entered the shared custody award which is the subject of this appeal.

The father, appellant herein, advances two issues for our review. He initially challenges the lower court opinion as lacking a thorough and comprehensive analysis of the record and specific reasons for its ultimate decision. Secondly, he questions whether the lower court’s decision serves the best interests of the children. For the reasons that follow, we affirm the Order of the lower court.

Appellant is quite correct in his assertion that the trial judge is mandated to develop a complete record and to file a comprehensive opinion detailing the specific reasons relied upon in reaching his decision. This Court has consistently emphasized the unwavering need for the lower court “to conduct a penetrating and comprehensive inquiry in custody matters so as to insure a complete record upon which we can base our review.” Commonwealth ex rel. Bowers v. Widrig, 318 Pa.Super. 198, 202-03, 464 A.2d 1299, 1301 (1983); In Re Donna W., 325 Pa.Super. 39, 472 A.2d 635 (1984); In Re Custody of J.S.S., 298 Pa.Super. 428, 444 A.2d 1251 (1982). From our reading of the record, we are satisfied that the lower court fully considered and analyzed the salient points of this matter in its opinion.

The hearing in the case at bar occurred over a two-day period and encompassed approximately 200 pages of testimony. Nine witnesses testified, including the parties, the maternal grandmother, two elementary school teachers, a social worker, the mother’s sister-in-law, the mother’s roommate, and the father’s present wife. The trial judge also interviewed the children in chambers as to their preference. The record thus contains testimony on the occupations of both parents, their respective living arrangements, their current family ties, the children’s socialization skills, and their educational performance. Indeed, appellant does not aver that the record itself is less than complete. Rather, he asserts that the lower court failed to sufficiently analyze the relevant facts included therein.

We must disagree. It is clear from the opinion of the trial judge, the Honorable John F. Rauhauser, that he carefully considered this matter and all pertinent testimony adduced at the hearing. In a nine-page opinion, he reviewed the procedural history of this longstanding custody dispute and the testimony proffered by each side explaining their motivation in seeking custody.

The trial judge observed that the mother spent the past year improving her parenting skills at a child development agency and maintains a stable home environment which she shares with another young woman. Together with her parents, who live nearby, she and the children take advantage of the zoos, parks, and museums located in Baltimore. She contended that the children will be able to attend better schools in Baltimore, that they enjoy their visits with her, and together comprise a cohesive family unit. Finally, she argued that her children are better situated with her where they need not face a new spouse and other children who, in various ways, express sibling rivalry.

The father similarly asserted that the children were happy when with him, that his home environment in a rural setting offered them more room to grow and play in, and that the children enjoyed the friendship of many children who lived in the area. Finally, he saw no problem between the children and their stepmother, or between them and his stepdaughters.

Reference was made to home studies submitted by each party, and the trial judge considered his conversations with the children. Most importantly, he weighed the credibility of various witnesses, assigning more credence to those who testified on behalf of the mother. We are satisfied that the trial judge’s opinion was comprehensive and fully supported by the record.

We are likewise satisfied that the trial judge’s decision served the best interests of the children and should not be reversed. We have recently received guidance from our Supreme Court on the scope of our review in custody matters such as the one at hand. In Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 237, 478 A.2d 800, 806 (1984), the Supreme- Court held:

an appellate court is empowered to determine whether the trial court’s incontrovertible factual findings support the trial court’s factual conclusions, but may not interfere with those conclusions unless they are unreasonable in light of the trial court’s factual findings [, ] ... and, thus, represent a gross abuse of discretion...

(citations omitted; emphasis in original).

The trial judge found as a fact that: (1) both parents are fit parents (2) both are sane and capable of making rationale child rearing decisions (3) both have expressed love for their children, and their children for them, and both appear to be willing and able to provide love and care for their children, (4) both desire to have a continuing active involvement in the lives of their children, and (5) both have expressed, in various ways, their willingness and desire to put the interests and welfare of their children above their own.

Based upon these findings, the lower court concluded that, in this instance, a joint custody arrangement was warranted whereby both parents shared the decision-making authority regarding their children. To insure frequent and continuing contact with both parents, the trial judge established a program of shared physical custody, with liberal visitation for the non-custodial parent. Clearly, then, the lower court’s award cannot be viewed as unreasonable in light of its finding that both parents were fit custodians. Although it would have been more equitable for each parent to retain custody of their children for six months each year, such a solution is simply untenable when the children must be enrolled in school for nine months of the year.

Although the father would prefer that the children reside with him during the school year, and he argues that the status quo of the present living arrangements should be maintained, Harner v. Harner, 330 Pa.Super. 343, 479 A.2d 583 (1984), we cannot substitute our determination of what constitutes the best interests of the children in the absence of indications that the lower court committed a gross abuse of discretion. As we have already stated, the lower court’s decision was fully supported by the record and appears to us to be a just and reasonable answer to the extremely difficult question presented by this case.

Order affirmed.

      . The father remarried in April, 1979, and currently resides with his wife and her twin 12 year-old daughters in York, Pennsylvania.

      . The children’s stated preference was to remain with their father, citing as the primary reasons their large yard, their pony, more friends in York, and less noise than their mother’s home in Baltimore. Although the preference of the child is a factor to be considered, it is the responsibility of the trial judge to weight that preference according to the age, intelligence, and maturity of the child. Commonwealth ex rel. Pierce v. Pierce, 493 Pa. 292, 426 A.2d 555 (1981). Our review confirms the trial court’s determination that the children’s preferences lacked a sufficient basis to be accorded controlling weight.

      . Although appellant claims that the hearing judge committed error by considering an investigative report introduced by appellee when the caseworker was not available for cross-examination, see Commonwealth ex rel. Bowers v. Widrig, 318 Pa.Super. 198, 464 A.2d 1299 (1984), appellant raised no objection at the time it was admitted into evidence. Consequently, he cannot now complain that the lower court improperly considered it.


author: WATKINS, Judge:

text:
    486 A.2d 460
    COMMONWEALTH of Pennsylvania, Appellant, v. Roger BRANCH.
    Superior Court of Pennsylvania.
    Argued Oct. 2, 1984.
    Filed Dec. 28, 1984.
    Petition for Allowance of Appeal Denied Aug. 13,1985.

      Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
    Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellee.
    Before MONTEMURO, BECK and WATKINS, JJ.
   WATKINS, Judge:

This is a Commonwealth appeal from the grant of a motion to dismiss pursuant to Pa.R.Crim.Pro. 1100(f) by the Philadelphia Court of Common Pleas. On appeal, the Commonwealth contends the trial court erred in granting appel-lee’s pre-trial application to dismiss because of the Commonwealth’s failure to bring him to trial within 180 days of the complaint’s filing.

The complaint was filed and an arrest warrant was issued on May 12, 1980. The run date, therefore, was November 10, 1980. Appellee was not apprehended on the present charges of recklessly endangering another person and simple and aggravated assault until July 8,1988. At a hearing held ten days later, defendant was held for court on all charges. On .July 21, 1983, the Commonwealth petitioned to extend the time for trial under Pa.Rule Crim.Pro. 1100(c) based upon the premise that defendant’s unavailability from the filing of the complaint until defendant’s arrest was excludable time under Rule 1100, thereby automatically extending the time for trial until January, 1984. After hearing, the trial court denied the Commonwealth’s request for an extension and granted appellee’s application to dismiss.

The critical issue is whether the Commonwealth’s application for an extension of time was filed prior to the expiration of the mandatory period of 180 days. See, Common wealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976); Commonwealth v. O’Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975). This, in turn, depends upon whether the entire three year period between the filing of the complaint and appellee’s arrest is excludable. The appellee argued and the lower court found the pre-arrest period involved two stages, one during which due diligence was exercised and one during which it was not. The latter stage being greater than 180 days, the motion to dismiss was granted. We are constrained to disagree.

Pa.Rule Crim.Pro. 1100(d) provides in part that “(i)n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant...” The comment to the Rule suggests that a defendant is unavailable “for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence.”

The Commonwealth has the burden of proving, by a preponderance of the evidence, that the police exercised due diligence in trying to locate the accused. Commonwealth v. Dorsey, 294 Pa.Superior Ct. 584, 440 A.2d 619 (1982); Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981); Commonwealth v. Mitchell, 472 Pa. 553, 564 n. 5, 372 A.2d 826 (1977). The Commonwealth’s evidence of diligence consisted solely of the testimony of the assigned detective, Sergeant Daniel Farley. Detective Farley testified he made approximately thirty separate attempts to arrest the defendant from May 13, 1980 until August of 1982, as well as bimonthly surveillances of defendant’s neighborhood which he conducted for the next ten months. Defendant’s family had filed an harrassment complaint with the police department claiming defendant did not live at the home address. Sergeant Farley contacted defendant’s employer who told him the defendant had not picked up his last pay check. In addition, Sergeant Farley made various record checks which included entering defendant’s name into the national crime information computer on June 5, 1980, contacting the Bureau of Motor Vehicles in Harrisburg, checking with voter registration, and making a criminal record check through the police department records division. In August, 1982, Detective Farley was transferred to another division and the actual police search for defendant, actively conducted for more than two years, was apparently discontinued. Despite evidence of Sergeant Farley’s continuous and thorough search for defendant during the twenty-seven months from May, 1980 until August, 1982, the lower court concluded:

“In this case although the Commonwealth attempted to locate the defendant from May 12, 1980'to August of 1982, it failed to met its burden, because from August of 1982 until July of 1983 a period well in excess of 180 days, nothing was done to serve the warrant or locate the defendant. Therefore, the time between August of 1982 and July of 1983 cannot be excluded since the Commonwealth presented no evidence showing that the defendant’s whereabouts were unknown and could not be determined during that period.”

The critical issue presented by this appeal is whether the Commonwealth, in order to establish due diligence under Pa.Rule Crim.Pro. 1100, was required to show the police continuously and actively pursued defendant for the entire three years that defendant managed to avoid arrest. We hold Rule 1100 contains no such continuous search requirement.

When asked to decide whether the police have acted with due diligence, a court must engage in a balancing process, which may become quite awkward. Commonwealth v. Winn, 327 Pa.Superior Ct. 296, 475 A.2d 805 (1984). On the one hand, this determination must be based on a common sense approach to law enforcement which recognizes that the police department, not the court, is the best judge of how to deploy limited police personnel. Commonwealth v. Dorsey, 294 Pa.Superior Ct. 584, 440 A.2d 619 (1982); Commonwealth v. Martofel, 248 Pa.Superior Ct. 206, 209, 375 A.2d 60 (1977); In Commonwealth v. Mitchell, 472 Pa. 553, 566, 372 A.2d 826, 832 (1977), the Supreme Court said:

“It is not the function of our courts to second-guess the police methods used by the police to locate accused persons ... Deference must be afforded the police officer’s judgment as to which avenues of approach will be fruitful.”

The “due diligence” required of police does not demand perfect vigilance and punctilious care, but rather a reasonable effort. Commonwealth v. Polsky, 493 Pa. 402, 426 A.2d 610 (1981). Commonwealth v. Mitchell, supra. On the other hand, the interest of the accused in receiving a prompt trial is a precious interest which it is the court’s responsibility to protect. Commonwealth v. Winn, supra.

The lower court, rather than focusing on the considerable police efforts made to locate the defendant from May, 1980 to August, 1982, incorrectly focused only on what was not done during the ten months from August, 1982 until defendant’s July, 1983 arrest. The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done. (Emphasis in original) Commonwealth v. Faison, 324 Pa. Superior Ct. 406, 471 A.2d 902 (1984) allocatur denied; Commonwealth v. Hinton, 269 Pa.Superior Ct. 43, 409 A.2d 54 (1979).

In the instant case, Sergeant Farley had already diligently searched for defendant without success for more than two years, and the police did not unreasonably discontinue their active search for defendant when Sergeant Farley was transferred in August of 1982. The standard of due diligence demands only reasonable efforts. Commonwealth v. Hinton, supra. Police officers must make choices, devoting more attention to some crimes than to others, and foregoing some lines of inquiry that they would pursue if they had more resources. Commonwealth v. Dorsey, supra.

The testimony at the instant Rule 1100 hearing indicates the police made reasonable efforts to constitute due diligence when considering the manpower and investigating means available to the police. In Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981), the Supreme Court, speaking through Justice Kauffman said:

Rule 1100 “serves two equally important functions: (1) the protection of the accused’s speedy trial right, and (2) the protection of society.” Commonwealth v. Brockle-hurst, 491 Pa. 151, 153-154, 420 A.2d 385, 387 (1980); Commonwealth v. Hamilton, 449 Pa. 297, 297 A.2d 127 (172)... The administrative mandate of Rule 1100 certainly was not designed to insulate the criminally accused from good faith prosecution delayed through no fault of the Commonwealth.

Order reversed and case remanded for trial. Jurisdiction is relinquished.

DECK, J., concurred in the result.


text:
    486 A.2d 463
    COMMONWEALTH of Pennsylvania v. Cynthia A. WACHTER, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 18, 1984.
    Filed Dec. 28, 1984.

      Allen H. Smith, York, for appellant.
    William T. Hast, Assistant District Attorney, York, for Commonwealth, appellee.
    Before WICKERSHAM, WATKINS and HESTER, JJ.
   WATKINS, Judge:

This is an appeal by the defendant from her conviction before a District Justice of operating a motor vehicle at an excessive speed. At the hearing de novo, the testimony of the Commonwealth showed that the defendant’s vehicle was travelling at 44 m.p.h. in a 25 m.p.h. speed zone. This speed was determined through the use of an ESP (excessive speed preventor). The defendant demurred to the Commonwealth’s evidence on the ground that the Commonwealth had failed to prove that the West York Borough had enacted an ordinance authorizing the use of ESP and further failed to post the use of such a device. The defense stated that no evidence would be presented and that the case would be decided by the Court of Common Pleas on the demurrer. The lower court overruled the demurrer on October 26, 1983 and found the defendant guilty.

The only question raised on appeal is whether the Commonwealth can sustain its burden of proof in a speeding violation case under the Vehicle Code based on an “ESP” speed timing without proof of a local ordinance authorizing the use of such a device and the posting of signs indicating such enforcement.

' After review of the record and briefs in this appeal, we conclude that the lower court adequately disposed of the question raised.

In its opinion , the lower court stated that:

“Defendant argues that these sections require a municipality to adopt the use of an approved speed timing device by Ordinance and to post a notice of the use of that approved speed timing device. We disagree.
“Defendant’s contention that an Ordinance authorizing the use of the ESP device must be adopted by the municipality prior to its use is supported by the ruling in Commonwealth v. Wickham, 130 P.L.J. 65 (1982); Commonwealth v. Shenkin, (Delaware County, S.A. 3890-81 (8/18/82); and Commonwealth v. Herdman, supra. On the other hand, the trial courts in Cumberland County (Commonwealth v. DePasquale, supra) and in Lycoming County, Commonwealth v. Selleck, 15 Lycoming Rep. 66 (1982), have held that there is no requirement on the Commonwealth to prove the prior adoption of such an Ordinance in order to effectively make use of ESP.
“We find the arguments against the necessity of a prior Ordinance to be more persuasive. Section 6102 relates to the exercise of powers granted under the provisions of Chapter 61 (Section 6101-6153) of the Vehicle Code. The power to time the speed of any vehicle is not granted in Chapter 61, however. That power is granted in Chapter 33, Subchapter F, specifically Section 33.68 of the Vehicle Code which provides in Subsection (c)(1):
‘The rate of speed of any vehicle may be timed on any highway by a police officer using a mechanical or electrical speed timing device.’
“We are therefore satisfied that the power to time the speed of a motor vehicle by means of a mechanical or an electrical speed timing device is granted in that Section to any police officer in the Commonwealth.
“The provisions of Section 6109(a)(10) and (11) together speak to the power to establish and enforce speed restrictions. The term ‘enforcement’ is defined in Black’s Law Dictionary as ‘the execution of a law, to cause to take effect or to make effective’. The enforcement of a speed restriction is authorized in the Ordinance establishing such speed restriction by declaring a violation of the Ordinance to be illegal, and providing for the prosecution of violators with specific penalties prescribed in the Ordinance. ‘Enforcement’ does not mean measuring the speed of a vehicle violating the established speed limit, whether that measurement is by means of a stopwatch, an automobile speedometer, or an ESP device. Such measurement is merely evidence of the violation and is not itself the enforcement.”
“A further reason for our conclusion that Section 6102 does not require a local municipality to enact an Ordinance prior to the use of ESP to measure the speed of the vehicle is found in the first sentence of Section 6109(a) which reads as follows:
‘The provisions of this title shall not be deemed to prevent ... the local authorities on streets or highways within their physical boundaries from the reasonable exercise of their police powers.’
“Those existing police powers, the exercise of which the provisions of the Code are not ‘deemed to prevent’, are enumerated, and include those set forth in Subsections 10 and 11 as hereinbefore recited. Thus, the enforcement of speed restrictions is reserved to local municipalities, and is uneffected by the other provisions of the Code, including Section 6102. Section 6102 requires an Ordinance only for powers ‘granted in this Chapter’ and does not apply to pre-existing powers such as the existing police powers as enumerated in Section 6109.
“Nor does Section 6109(c) require the posting of signs before ESP devices may be used. Section 6109(c) cannot be read to require the posting of signs for every means of enforcement used; rather, it requires the posting of signs for the general existence and enforcement of speeding regulations, i.e. speed limit signs. Commonwealth v. Heenan, 78 Schuylkill Leg Rec. 13; Commonwealth v. Sellekc, supra. To hold otherwise would be to require signs warning the motorist of every conceivable type of enforcement techniques, all of which would lend itself to confusion and endless litigation as to the exact meaning of every word on the sign.
“We note finally that the Commonwealth produced evidence at the trial to show that the ESP device had been tested for accuracy and that the operator was certified to use it.”

We agree with the lower court’s analysis of the instant situation and, therefore, rule it is not necessary that the Commonwealth prove that a local municipality has adopted a ordinance regarding the use of ESP devices before prosecutions may be brought pursuant to arrests made for speeding where such devices were used. We also agree that it is not necessary that the Commonwealth prove that the use of such devices be posted by warning signs.

Judgment of sentence affirmed.

      . It should be noted that Commonwealth v. DePasquale, cited by the lower court, was affirmed by this Court at Commonwealth v. DePasq-uale, 327 Pa.Superior Ct. 579, 476 A.2d 419 (1984).


text:
    486 A.2d 465
    COMMONWEALTH of Pennsylvania v. James S. DARRAS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1984.
    Filed Dec. 28, 1984.

      Lawrence J. Hracho, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order denying appellant’s petition for relief under the Post-Conviction Hearing Act. Appellant was found guilty by a jury of a veritable cat-alogue of crimes including attempt to commit murder, prohibited offensive weapons, aggravated assault, reckless endangerment, involuntary deviate sexual intercourse, robbery, theft by unlawful taking and kidnapping, for which the consecutive sentences imposed totaled eighteen to forty-two years imprisonment. The offenses stem from a 1976 incident in which appellant telephoned the victim, a car salesperson, for the ostensible purpose of purchasing an automobile. During the course of appellant’s “test drive” of the car, he held the victim prisoner at gunpoint, forced her to perform fellatio on him and then shot her, absconding with the car and leaving her for dead by the side of the roadway.

Appellant, in seeking post-conviction relief, has presented us with a litany of complaints, thirty in all, concerning trial counsel’s stewardship of his case. All, save one, are devoid of merit and to this sole exception we direct our consideration. Appellant has alleged reversible error in the trial court’s imposition of sentence on offenses which were recognized as merged but nevertheless improperly treated. We are informed that: (1) criminal attempt/homicide merges with prohibited offensive weapons, Commonwealth v. Ford, 315 Pa.Super. 281, 461 A.2d 1281 (1983); (2) criminal attempt/homicide merges with aggravated assault, Id.; (3) criminal attempt/homicide merges with reckless endangerment, Id.; (4) unlawful restraint merges with kidnapping, Commonwealth v. Sheffield, 306 Pa.Super. 274, 452 A.2d 550 (1982); (5) theft by unlawful taking merges with robbery, Commonwealth v. Smith, 313 Pa.Super. 138, 459 A.2d 777 (1983); (6) robbery merges with kidnapping. The supporting argument is that all the offenses relate to one crime. We agree with respect to (1) through (5) and accordingly vacate sentence on the merged charges as is our prerogative under Ford, supra and Commonwealth v. Bey, 306 Pa.Super. 288, 452 A.2d 729 (1982) and its antecedents. We note in so doing, however, that the length of the sentence imposed is in no way altered as the sentences vacated were to run concurrently with those for the correlative crimes as was noted by the trial judge during sentencing. The consecutive sentences were for crimes which do not merge. With respect to number 6, we are aware of no precedent which justifies the merger of robbery with kidnapping and appellant offers none. In fact, such consolidation under the facts of this or any case within imagining would be completely improper. His reasoning, that the robbery and kidnapping offenses were actually parts of the single goal, is unpersuasive.

Accordingly, sentence on the following offenses is vacated: prohibitive offensive weapons, aggravated assault, recklessly endangering another person, unlawful restraint and theft by unlawful taking. Otherwise the Order of the Court of Common Pleas of Berks County denying appellant’s application for post-conviction relief is affirmed.

Order affirmed.

      . Trial counsel is faulted not for failure to raise this issue, since it was in fact called to the trial court’s attention and ours on direct appeal, but for his failure to demonstrate sufficient energy in doing so.


author: DEL SOLE, Judge:

text:
    486 A.2d 467
    COMMONWEALTH of Pennsylvania v. Edward Charles RANDALL, Sr., a/k/a Charles Randall, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 13, 1984.
    Filed Dec. 28, 1984.

      Scott D. Keller, Reading, for appellant.
    Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.
    Before McEWEN, DEL SOLE and POPOVICH, JJ.
   DEL SOLE, Judge:

Appellant was convicted of third degree murder and possessing instruments of crime. Following the denial of post-verdict motions, Appellant was sentenced to eight to eighteen years imprisonment and a consecutive term of five years probation. Appellant raises several issues of ineffective assistance of counsel in the instant appeal. Appellant also contends that the trial court erred in allowing the Commonwealth, on rebuttal, to impeach him through use of a prior burglary conviction. After a thorough review of the record, we find that we need not consider the ineffective assistance of counsel issues since we find that the trial court erred in admitting Appellant’s prior conviction for purposes of impeachment. Accordingly, the judgment of sentence is reversed and the case is remanded for a new trial.

At trial, the Commonwealth’s case in chief primarily consisted of the testimony of two eyewitnesses who stated that Appellant and the victim had an argument at a social club. The witnesses testified that Appellant left the club’s premises after the argument but later returned at which time the Appellant and victim again argued resulting in the shooting of the victim by Appellant. The remainder of the Commonwealth’s case in chief was comprised of the testimony of police officers, doctors and other persons involved in the investigation of the shooting.

The sole evidence offered by Appellant was his own testimony. Appellant testified that the shooting was justified because the victim was armed at the time and because the victim had threatened Appellant with a gun during their first argument at the social club. Also, Appellant testified that the butt of a gun was sticking out of the victim’s jacket pocket immediately prior to the shooting. The Commonwealth presented the testimony of a witness on rebuttal who was present at the social club at the time of the shooting but was not an eyewitness. That witness stated that he had seen no guns at the social club prior to the shooting. The Commonwealth also introduced Appellant’s prior burglary conviction which was admitted for impeachment purposes, over objection, by the trial court.

In Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), the Supreme Court ruled that a defendant’s prior conviction could only be used by the Commonwealth on rebuttal solely to attack the credibility of a defendant who has elected to testify in his own behalf. The court found that only crimes involving dishonesty and false statements could be used for impeachment. In addition, the Bighum Court noted that there are certain considerations a trial court must apply in determining the admissibility of a prior conviction. Specifically, the trial court must consider the age and nature of prior crimes, the length of the criminal record, the age and circumstances of the defendant and the extent to which it is more important to search for the truth in a particular case for the jury to hear the defendant’s testimony than to know of prior convictions. As to the latter consideration, the Bighum Court stated:

This last factor is of critical importance. Where the defendant has no other means by which to defend himself, it would be particularly unjust to subject him to prior convictions. Or, where the prior conviction is not so critically important to the Commonwealth’s case e.g., where other adequate means of attacking the defendant’s credibility are available-exclusion of prior convictions is strongly indicated.

452 Pa. at 567, 307 A.2d at 263.

The holding in Bighurn was later reiterated and refined by the Supreme Court in Commonwealth v. Roots, 482 Pa. 33, 393 A.2d 364 (1978). In Roots, the Court more clearly set forth the criteria for admission of a prior conviction for impeachment purposes, but remained firm in the belief that the factor cited above was still the most critical factor in the determination of admissibility.

Appellant’s main argument against admissibility of his prior conviction is that the only means for presenting his defense of justification was his own testimony and the Commonwealth had presented enough testimony exclusive of the prior conviction to cast doubt on his credibility. The trial court found that the relevance of the prior conviction outweighed its prejudicial effect since credibility was the key issue in the case and because the Commonwealth was able to present only one rebuttal witness. However, the trial court did not apparently consider crucial to this credibility determination the testimony of the two Commonwealth eyewitnesses. A review of the record as a whole reveals that the Commonwealth had three witnesses who were present at or near the scene of the crime and who offered testimony in contradiction to Appellant’s version of the events. This is exactly the situation in which the Bighurn and Roots Courts found that a defendant’s prior conviction should not be admitted for impeachment purposes. In the instant case, it was more important to the search for truth that the jury have heard the Appellant’s testimony without knowledge of prior convictions so that the credibility determination could have been made solely on the facts. The Appellant’s testimony was entitled to be judged solely on its truth as contrasted to the testimony of the Commonwealth witnesses unencumbered by the shadow of his prior conviction.

We hold that since the appellant had no means other than his testimony to defend himself and the Commonwealth had other adequate means to attack the Appellant’s credibility the trial court erred in allowing defendant to be impeached through use of his prior burglary conviction. Accordingly, the judgment of sentence must be reversed and the case remanded for a new trial.

Judgment of Sentence reversed. Case remanded for a new trial. Jurisdiction is relinquished.


author: CIRILLO, Judge:

text:
    486 A.2d 469
    Patricia FAIRBANKS, Appellant, v. TRAVELERS INSURANCE COMPANY, and Southeastern Pennsylvania Transportation Authority.
    Superior Court of Pennsylvania.
    Argued Sept. 4, 1984.
    Filed Dec. 28, 1984.

      Claire Newman, Philadelphia, for appellant.
    Steven B. Kantrowitz, Philadelphia, for Travelers Ins., appellee.
    John F. Smith, III, Philadelphia, for SEPTA, appellee.
    Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.
   CIRILLO, Judge:

We decide today that Modesta v. Southeastern Pennsylvania Transportation Authority, 503 Pa. 437, 469 A.2d 1019 (1983), is retroactive. Self-insurers under the Pennsylvania No-Fault Motor Vehicle Insurance Act must therefore pay uninsured motorist benefits to persons whose causes of action against them arose before Modesta was decided, provided that suit on those causes of action is not barred by the statute of limitations.

Appellant Patricia Fairbanks was a passenger on a bus owned by appellee Southeastern Pennsylvania Transportation Authority (hereafter “SEPTA”) when it was struck by an uninsured motorist. She had no applicable insurance, because she did not own nor reside with anyone who owned a motor vehicle. SEPTA paid her basic loss benefits, which it is required to do as a self-insurer under the No-Fault Act. Appellant’s claim was then assigned to appellee Travelers Insurance Company (hereafter “Travelers”) pursuant to the Assigned Claims Plan (hereafter “the Plan”) of the No-Fault Act.

Appellant sought uninsured motorist benefits from SEPTA and Travelers. Both denied her claim. She then sought a declaratory judgment to determine which of appellees was liable to her for these benefits. Both appellees filed preliminary objections, which were denied. SEPTA moved for reconsideration of its preliminary objections; the court granted the motion for reconsideration and SEPTA’s preliminary objections.

After appellant filed her notice of appeal, the Supreme Court of Pennsylvania decided Modesta, supra, in which it overruled Johnson v. Yellow Cab Co. of Philadelphia, 456 Pa. 256, 317 A.2d 245 (1974), and held that the No-Fault Act requires self-insurers to provide coverage for claims under the Uninsured Motorist statute. The question presented is thus whether Modesta should be applied retroactively.

In deciding the applicability of Modesta to the instant case we are mindful that “[a]t common law, an overruling decision is normally retroactive.” August v. Stasak, 492 Pa. 550, 554, 424 A.2d 1328, 1330 (1981). Before holding a decision to be prospective only, the courts

have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed____ Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ... Finally, [the courts] have weighed the inequity imposed by retroactive application, for “[w]here a decision ... could produce substantial inequitable results if applied retroactively, there is ample basis in [the case-law] for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 358, 30 L.Ed.2d 296, 306 (1971) (citations omitted). In Pennsylvania, decisions changing the law are usually applied to cases pending on appeal. If such decisions rely upon statutory interpretations, they relate back to the date the particular statute became effective, because they merely interpret existing legislation. McCloskey v. W.C.A.B., 501 Pa. 93, 98 n. 3, 460 A.2d 237, 239 n. 3 (1983); see also Logan v. Stelmach, 325 Pa.Super. 181, 472 A.2d 708 (1984).

Baker v. Aetna Casualty and Surety Co., 309 Pa.Super. 81, 454 A.2d 1092 (1983), is analogous to the instant case. There, plaintiff’s husband died after a motor vehicle accident. Plaintiff sought work-loss benefits under the No-Fault Act, but the decedent’s insurer denied her claim. We held that plaintiff was entitled to the benefits because of Heffner v. Allstate Insurance Co., 265 Pa.Super. 181, 401 A.2d 1160 (1979), aff'd. 491 Pa. 447, 421 A.2d 629 (1980). Baker, 309 Pa.Super. at 90, 454 A.2d at 1097. In Heffner, our Supreme Court held that the surviving spouse of an insured killed in a motor vehicle accident could recover the insured’s work-loss benefits as if the insured had survived with a permanent disability and recovered them himself. Heffner, 491 Pa. at 459-460, 421 A.2d at 645-46.

Baker held Heffner to be retroactive because the recovery of lost wages by a survivor was not unknown in law. Baker, 309 Pa.Super. at 89, 454 A.2d at 1096. Accordingly, Heffner had created no new right of action nor change in the law; the insurance industry’s expectation that insurers would not have to pay work-loss benefits of deceased insureds was therefore unreasonable. Id. Heffner was retroactive to causes of action which, as was the case in Baker, arose before it was decided, unless recovery was barred by the statute of limitations. Baker, 309 Pa.Super. at 91, 454 A.2d at 1097. See also Fox v. State Farm Mutual Automobile Insurance Co., 322 Pa.Super. 96, 469 A.2d 199 (1983); Tanner v. Allstate Insurance Co., 321 Pa.Super. 132, 467 A.2d 1164 (1983); Rittner v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 114, 454 A.2d 1109 (1982); Freeman v. Allstate Insurance Co., 309 Pa. Super. 108, 454 A.2d 1106 (1982); Thomas v. Aetna Casual ty & Surety Co., 309 Pa.Super. 105, 454 A.2d 1105 (1982); and Keaten v. Aetna Life & Casualty Insurance Co., 309 Pa.Super. 101, 454 A.2d 1102 (1982).

The Baker rationale applies to the instant case. In Modesta, supra, plaintiff was injured when the self-insured bus in which she was riding was struck by an uninsured motorist. Plaintiff sued in equity, seeking, inter alia, uninsured motorist benefits. In holding that self-insurers must provide uninsured motorist benefits under the No-Fault Act, the Supreme Court in Modesta focused on the purpose and language of the motor vehicle insurance laws.

First, the Modesta Court noted the holding of Johnson v. Yellow Cab, supra, that Section 2000’s requirement of uninsured motorist coverage applied only to insurance contracts. Modesta, 503 Pa. at 439, 469 A.2d at 1021, citing Johnson, supra, 456 Pa. at 259, 317 A.2d at 247. The Court then stressed Section 2000’s express purpose of compensating persons injured by the negligence of uninsured motorists: the section must be broadly and liberally construed to fulfill this purpose. Modesta, 503 Pa. at 439, 469 A.2d at 1021. Given this purpose, Johnson’s holding was too narrow and that decision had to be overruled. Id.

The Modesta Court then stated that self-insurance does not change Section 2000’s purpose, but merely relieves the insured of paying premiums to an insurer. Id., 503 Pa. at 441, 469 A.2d at 1022. The No-Fault Act itself gives notice to self-insurers that they must reserve funds sufficient to pay claims for uninsured motorist benefits:

Self-insurance. — Self-insurance, subject to approval of the commissioner and department, is effected by filing with the department in satisfactory form:
(1) a continuing undertaking by the owner or other appropriate person to pay basic restoration benefits and any tort liability required in amounts not less than those required, by subsection (a) of this section, to perform all obligations imposed in accordance with this act, and to elect to pay such added restoration benefits as are specified in the undertaking;
(2) evidence that appropriate provision exists for prompt and efficient administration of all claims, benefits, and obligations provided in accordance with this act; and
(3) evidence that reliable financial arrangements, deposits, resources, or commitments exist providing assurance substantially equivalent to that afforded by a contract of insurance complying with this act for payment of no-fault benefits, any required tort liability, and performance of all other obligations imposed in accordance with this act.

40 P.S. § 1009.104(b) (emphases added), quoted in part in Modesta, 503 Pa. at 443-46, 469 A.2d at 1023-24. The Insurance Commissioner’s approval of self-insurance is “simply a substitute for the policy of insurance”; either approval of self-insurance or a policy

indicate[s] that the vehicle owner intends to comply with the mandatory insurance law, and both indicate that there is security in at least the amounts required by statute covering the vehicle.

Modesta, 503 Pa. at 445, 469 A.2d at 1024. This required security, with which self-insurance must be “substantially equivalent,” includes uninsured motorist coverage as required of policies by Section 2000 and Insurance Department regulations. Id., 503 Pa. at 445 n. 7, 469 A.2d at 1024 n. 7, citing 31 Pa.Code § 66.11. Thus, self-insurance must include uninsured motorist coverage; a contrary holding would mean that self-insurers, despite the terms of Section 1009.104(b), could provide less coverage than that mandated for motor vehicle insurance policies. Modesta, 503 Pa. at 445 n. 7, 469 A.2d at 1024 n. 7.

In Modesta, the Supreme Court held that Section 2000 and the No-Fault Act and its regulations require self-insurers to provide uninsured motorist coverage. Examination of the language of the No-Fault Act reveals that this holding was not unforeshadowed, since Section 1009.104(b) states that self-insurers must “perform all obligations imposed” by the No-Fault Act and provide coverage “substantially equivalent” to that of express policies, which must provide uninsured motorist protection. Decisions interpreting statutes are retroactive to the date of the statute’s effectiveness. McCloskey, Logan, Heffner and Baker, supra.

We conclude that Modesta is retroactive, and that a self-insurer must provide uninsured motorist benefits where the claim for them arose before Modesta was decided, unless recovery on the claim is barred by the statute of limitations.

The order of the Court of Common Pleas granting appel-lee SEPTA’s preliminary objections is reversed.

Order reversed and remanded for trial. Jurisdiction is relinquished.

      . Act of July 19, 1974, P.L. 489, No. 176, as amended 40 P.S. § 1009.101-.701 (hereafter "the No-Fault Act”). The No-Fault Act has been replaced by the Motor Vehicle Financial Responsibility Law, Act of February 12, 1984, P.L. —, No. 11, as amended by Act of February 12, 1984, P.L. —, No. 12, effective October 1, 1984.

      . 40 P.S. § 1009.104. See infra for discussion of Section 1009.104.

      . 40 P.S. § 1009.108.

      . Act of August 14, 1963, P.L. 909, § 1, ay amended by Act of December 19, 1968, P.L. 1254, No. 397, as amended, 40 P.S. § 2000 (hereafter "Section 2000”).

      . The parties originally presented the question of a self-insurer’s duty to provide uninsured motorist coverage. The issue of Modesta's retroactivity arose at oral argument, and we granted the parties time to brief this issue.

        . In Antanovich v. Allstate Insurance Co., 320 Pa.Super. 322, 467 A.2d 345 (1983), petition for allowance of appeal granted (1984), the Superi- or Court en banc overruled the panel’s decision in Baker to the extent that it allowed post-mortem work-loss benefits to be paid in monthly installments rather than one lump sum. Antanovich, 320 Pa.Super. at 340, 467 A.2d at 355. See also Urland v. State Farm Mutual Automobile Insurance Co., 324 Pa.Super. 241, 471 A.2d 554 (1984).

      . We note that our Supreme Court has held that obligors under the Assigned Claims Plan must provide uninsured motorist coverage as well as basic loss benefits. Tubner v. State Farm Mutual Automobile Insurance Co., 496 Pa. 215, 436 A.2d 621 (1981). However, this duty arises when the injured party has no applicable insurance from which to recover uninsured motorist benefits. Id., 496 Pa. at 220, 436 A.2d at 623. Given the Court’s statement in Modesta that self-insurance is a substitute for the traditional policy, Tubner does not affect our decision in the instant case.