author: BECK, Judge:

text:
    594 A.2d 660
    Gwyn A. Faggart FAUST v. Brian K. FAGGART, Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1991.
    Filed July 9, 1991.
    Petition for Allowance of Appeal Denied Nov. 25, 1991.

      John W. Metzger, Lancaster, for appellant.
    Nina B. Shapiro, Asst. Dist. Atty., Lancaster, for appellee.
    Before BECK, POPOVICH and HOFFMAN, JJ.
   BECK, Judge:

This case raises a crucial issue concerning the use of blood tests in rebutting the presumption that a child born to a married woman is the child of the marriage or, as it was formerly known, the presumption of legitimacy.

As is most often the case, the context in which this issue is raised is a support action by the mother, appellee Gwyn Faust, against the alleged father, appellant Brian Faggart. The mother and alleged father were married in either 1982 or mid-1983. They separated in October 1983. Shortly thereafter, the alleged father joined the Navy and went to California. In August of 1984, mother flew to Chicago to meet the alleged father. Both parties testified that they engaged in sexual intercourse at that time. Mother delivered the child, Anthony, on March 31, 1985. She testified that the child was born two months premature. In December 1985, the parties were divorced.

Mother initiated this support action by complaint filed December 6, 1989. A support conference was held on March 8, 1990. Since the alleged father denied paternity, no agreement regarding support could be reached and the Domestic Relations Hearing Officer entered a Recommendation for Support Order in the amount of $75.00 per week. This recommendation was adopted by the trial court and entered as a temporary support order on March 13, 1990. The alleged father timely filed exceptions to the recommendation. He also simultaneously filed a petition to stay the temporary order and a separate petition requesting blood testing of himself, the mother and the child to determine paternity. These petitions were both denied by order dated May 1, 1990. No opinion in support of the denial was authored by the trial court.

On June 8, 1990, the trial court conducted a hearing on the alleged father’s exceptions pursuant to Pennsylvania Rule of Civil Procedure 1910.11. At the hearing, all of the evidence presented related to the paternity of the child. As expressed by the trial court, the hearing was a limited one, addressing only whether the alleged father could rebut the presumption that the child was his since it was conceived and born during his marriage to mother. At the conclusion of the hearing the court held that the alleged father had not produced sufficient evidence to rebut the presumption and ordered the alleged father to pay support at the recommended level.

Although the support order entered at the conclusion of the hearing was a final order, to which no post-trial motions may be filed, see Pa.R.C.P. 1910.11(k), the alleged father nevertheless filed a post-trial motion in which he renewed his claim that blood testing should be ordered to enable him to rebut the presumption that the child was his. The trial court promptly denied the motion and this timely appeal from the final order of support followed.

On appeal, appellant-alleged father does not argue that he succeeded in rebutting the presumption through evidence of non-access or impotency, as required by the common law. See Cairgle v. American Radiator and Standard Sanitary Corp., 366 Pa. 249, 77 A.2d 439 (1951). Rather, appellant argues that he was prevented from ob-taming and submitting the best evidence available to him to rebut the presumption, namely, exclusionary blood test results. Appellant strenuously contends that he has a statutory right to obtain and employ such evidence under the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S.A. §§ 6131-37 (1982) (the “Act”), recodified at, 23 Pa.C.S.A. § 5104 (1990).

Had this case arisen only a few years ago, the correct disposition of the issue presented would have been obvious. Under both the clear language of the Act and cases construing it, appellant would have been found to have a right to obtain blood tests of himself, the mother and the child and to use the results of those tests to attempt to rebut the presumption and avoid a support obligation. Id. § 6137; Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986); Parenti v. Parenti, 263 Pa.Super. 282, 397 A.2d 1210 (1979); Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962). It is only because of certain more recent developments in our case law that the issue posed has become more difficult to resolve. See, e.g., Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990). Despite these more recent cases, however, we conclude that appellant was improperly denied the opportunity to obtain blood tests under the Act and that the trial court must, therefore, be reversed.

The right to obtain blood testing to determine paternity is provided by statute. Therefore, our task in this case is fundamentally statutory construction. The statutory language we must construe is as follows:

§ 6133. Authority for test
In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such party, or enforce its order if the rights of others and the interests of justice so require.
§ 6136. Effect of test results
If the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests are that the alleged father is not the father of the child, the question of paternity, parentage or identity of a child shall be resolved accordingly. If the experts disagree in their findings or conclusions, the question shall be submitted upon all the evidence.
§ 6137. Effect on presumption of legitimacy
The presumption of legitimacy of a child born during wedlock is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.

Id. §§ 6133, 6136-37.

We must determine whether this language provides the alleged father in this case the right to compel blood testing of himself, the mother and the child to enable him to rebut the presumption that the child is his. Shortly after the enactment of the Act in 1961, this court was confronted with the selfsame question. In Commonwealth ex rel. Goldman v. Goldman, 199 Pa.Super. 274, 184 A.2d 351 (1962), a mother sought support for two children. The alleged father was indisputably the mother’s husband when the children were born. The first child was conceived and born when the parties were still living together, whereas the second child was conceived and born after they had separated but were still married. The alleged father denied paternity and sought blood tests to support his denial. Thus, the issue presented was precisely that presented in the instant case, i.e., may an alleged father who is sued for support compel blood testing to attempt to disprove that he is the father of the child where the child was born during the alleged father’s marriage to the mother?

The Goldman court held that in such a case, the Act does provide a right to compel blood tests. The court focussed its attention on the sections of the Act quoted above. Initially, the court examined section 6133 and concluded that an action for support of a child born during wedlock was a proceeding in which paternity was a “relevant fact.” Therefore, such an action satisfied the threshold requirement of section 6133. Although the court carved out an exception to this rule, finding that such an alleged father would be estopped from questioning paternity if he had held the child in question out as his own, the court did not find the estoppel exception applicable to the facts before it. Id., 199 Pa.Superior Ct. at 277-78, 283, 184 A.2d at 352-53, 355.

More importantly for our purposes, however, is the Goldman court’s construction of section 6137, addressing the use of blood test results to rebut the presumption that a child born during wedlock is the child of the marriage. As to this section, the court stated:

There is, of course, a strong presumption of legitimacy in Pennsylvania, but this presumption was held to be rebuttable even before the legislature provided so in § 5 [section 6137], supra. It has been deemed rebuttable by evidence of non-access or lack of sexual intercourse or impotency which is clear, direct, convincing and unanswerable. The legislature has now added another method of rebutting the presumption. Section 5 [section 6137], supra, provides that the presumption is overcome if the court finds that the blood grouping tests of all the experts discloses that the husband is not the father of the child. The courts are not at liberty to ignore this provision.

Id., 199 Pa.Superior Ct. at 280, 184 A.2d at 353-54.

Thus, Goldman established that an alleged father has the right to compel blood tests in a support action to attempt to rebut the presumption that a child born to a woman who was then the alleged father’s wife is the alleged father’s child.

For a period of some years following Goldman, this principle was consistently applied in cases arising under the Act. For example, in Parenti v. Parenti, 263 Pa.Super. 282, 397 A.2d 1210 (1979), the court summarily concluded that the alleged father of a child conceived during marriage had a right to blood tests under the Act in order to attempt to disprove his paternity and avoid a support obligation. Likewise, in Nixon v. Nixon, 354 Pa.Super. 232, 511 A.2d 847 (1986), the court held that an alleged father of a child conceived and born during the alleged father’s marriage to the mother had a right to compel blood tests under the Act to disprove his paternity even though the alleged father could not otherwise rebut the presumption of legitimacy through proof of non-access or impotency. Id., 354 Pa.Superior Ct. at 237, 511 A.2d at 850. The court clearly held that the Act provided an additional means of rebutting the presumption.

Even more recently, in Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397 (1991), a panel of this court again confirmed that blood tests may be used as an additional or alternative means of rebutting the presumption that a child born during marriage is the child of that marriage. In Jones, a mother brought a support action against a man who she alleged to be the father of a child born to her during her marriage to another man. Thus, she sought to disprove the paternity of her husband, the presumptive father, from whom she was later divorced. The Jones court upheld the trial court’s allowance of blood tests, specifically finding that paternity was a relevant fact under the Act even though the presumption of the former husband’s paternity had not already been rebutted by common law means. Id., 402 Pa.Superior Ct. at 66-67, 586 A.2d at 399-400.

If the foregoing were the only pertinent cases, we could end our discussion here with the conclusion that appellant has an unquestionable right to the blood tests he requested in this case. We would find that although he could not rebut the presumption that the child was his through clear, direct and unanswerable proof of impotency or non-access, as was required by the common law, this is irrelevant to his right to blood testing under the Act. As was held in Nixon, supra, the Act provides appellant an alternate means of disproving paternity, i.e., through exclusionary blood tests. Thus, we would find that the trial court’s refusal to accord appellant this opportunity deprived him of his statutory rights.

However, as the trial court noted, these are not the only authorities that need be considered in connection with the issue presented. In the past two years, certain cases have been decided which the trial court interpreted as casting doubt on the continuing viability of Goldman, Parenti and Nixon. We must now determine whether these cases are in fact determinative of our disposition of appellant’s rights in this case.

The two cases in question are John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), and Scott v. Mershon, 394 Pa.Super. 411, 576 A.2d 67 (1990). In John M., the Supreme Court decided that a man who alleged that he was the father of a child born during the marriage of the mother to another man (the “husband”) had no right to compel the husband to undergo blood testing under the Act. The mother and her husband had always and were presently living tojgether with the child in question and their other three children as an intact family. The court based its decision primarily on the fact that section 6133 of the Act only required that the court order blood testing of the mother, child and alleged father. In John M., the petitioner, who was not the mother’s husband, sought to have the court order blood tests of the mother’s husband, the presumptive father, for the purpose of disproving the husband’s paternity. Finding that the husband was not the “alleged father” within the meaning of the Act, the court held that the Act simply did not apply. John M., 524 Pa. at 315, 571 A.2d at 1385. The court further indicated that the interests of the Commonwealth in the stability of the intact family outweighed the interests of the alleged father in establishing his paternity.

In a separate concurrence by Justice Nix, in which four members of the court joined, Justice Nix described the effect of the Act on the presumption regarding children born in wedlock as follows:

The Act does not relax the presumption that a child born to a marriage is a “child of the marriage;” it merely provides a mechanism through which an alleged father can accumulate evidence of paternity. This Act cannot be used by a third party, seeking to rebut the presumption, to compel a presumed father to submit to a blood test. Whatever interests the putative father may claim, they pale in comparison to the overriding interests of the presumed father, the marital institution and the interests of this Commonwealth in the family unit. These interests are the cornerstone of the age-old presumption and remain protected by the Commonwealth today.

Id., 524 Pa. at 322-23, 571 A.2d at 1388.

Unlike in John M., where a party outside a marriage sought to disprove the paternity of a presumptive father, in Scott v. Mershon the question presented was whether a mother had a right to obtain blood tests of herself, her child and a man other than her husband to prove that the other man was the child’s father even though the child had been born during her marriage. The issue arose in the context of a support action by the mother against the other man. A panel of this court found that the Act did not give the mother a right to compel blood tests because in the context of the action before it, paternity was not a relevant fact and, thus, the threshold requirement of section 6133 was not fulfilled. The court reached this conclusion through two routes, only one of which is pertinent here. First, the court concluded that since the mother had not rebutted the presumption that her child was a child of her marriage through common law means, i.e., proof of impotency or non-access, the paternity of the child was established (by the unrebutted presumption) in her husband. Thus, paternity was not a relevant fact and blood tests could not be used to rebut the presumption.

The Scott court did not base this holding on a close analysis of the language of the Act or cases construing it. It cited to no authority mandating that the presumption be rebutted before blood tests be ordered. Rather, the Scott court imposed this requirement in the case before it on policy grounds. It reasoned that the policies underlying the presumption that a child born in wedlock is the child of the marriage outweighed the interests of the mother in obtaining blood tests to disprove her husband’s paternity and receive support from another man. The court stated:

... the Supreme Court ... in John M. treat[ed] the presumption as a rule established to carry out important social policy that cannot be easily abrogated, if at all____ the court[s] concluded that the presumption prevailed against arguable countervailing rights of one asserting paternity. The present case diverges factually ... in an important respect that only serves to strengthen the operation of the presumption. The third party to the marriage ... is not asserting his own paternity and seeking to be accorded rights. It is [the mother] who attempts to destabilize her own family by claiming that her husband is not the father.

Id., 394 Pa.Superior Ct. at 417, 576 A.2d at 70.

The Scott court also found that the mother was estopped from questioning her husband’s paternity since she had lived with him and the child and allowed her husband to support the child, thereby holding the child out as being her husband’s.

We find both John M. and Scott to be completely distinguishable from the instant case, which still must be decided under the rubric of Goldman, Parenti, Nixon and Jones. Both John M. and Scott involved factual situations that are not at all analogous to the facts of this case. In John M., the Court found the Act to be completely inapplicable on the facts of the case because the person whose blood was sought was not one of the parties the Act referred to. In the instant case, in contrast, the appellant seeks blood tests of precisely those parties to whom the Act does refer, i.e., himself (the alleged father), the mother and the child.

Of greatest importance, however, is the fact that both John M. and Scott involved an attempt to disrupt an intact family by obtaining blood tests to prove that the presumed father of the child in question was not really the father, but rather that a third party outside the marriage was the true father. This case involves no such attempt. Here, there is no intact family to protect nor has there ever been one. Mother testified that the child in question does not even know appellant, the alleged father. Therefore, the concerns expressed by the Supreme Court in John M. and by a panel of this court in Scott regarding the interests of the Commonwealth in preventing the disruption of a marriage and an intact family are inapposite to our analysis of the rights of the parties to this case. Clearly these concerns motivated the court in both of those cases to prevent the party seeking blood tests to use the Act in a manner that undermined these interests.

The limited applicability of John M. and Scott to situations where an intact family is threatened by the allegation that the husband-presumptive father was not the biological father of a child in that family was also confirmed in Jones, supra. Although the facts in Jones were highly similar to those presented in Scott, the pertinent distinction between the cases was that in Scott the mother, her husband and the child were living together as an intact family, whereas in Jones the mother and her husband were divorced and there was no intact family including the child in question. The Jones court found this factual distinction crucial, opining that since there was no intact family in need of protection from attacks on the paternity of the presumptive father, and since there was no issue of estoppel (as had been present in Scott), paternity was a relevant fact and blood tests were appropriate to determine that fact.

The instant case is, of course, even more distinct from both John M. and Scott than was Jones. This case is a classic situation where there is not and never has been an intact family and where the Act does and should apply to permit the alleged father to disprove his paternity by rebutting the presumption in the manner set forth in section 6137. To hold otherwise would be to ignore the manifest legislative intent underlying section 6137, as expressed by Justice Nix in his concurrence to John M., to allow alleged fathers to amass evidence to rebut the presumption through blood tests. A contrary holding would also contradict the principle established in Goldman that this use of blood tests applies equally to support actions against presumptive fathers of children born during wedlock. Thus, the trial court erred in refusing to order the blood tests requested by appellant.

Prior to concluding, we must also address the trial court’s statement that even if it had ordered blood tests, the results of the tests could not have changed the court’s conclusion that appellant had failed to rebut the presumption that the child in question is his because blood tests are only some, but not conclusive, evidence regarding paternity. The court suggested that even if it had committed error in refusing appellant’s request for blood tests, that error was harmless. We disagree.

It is true that the results of blood tests are not conclusive in every case. See John M., supra; Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986) (tests showing 99.99% probability that party is father are not conclusive). However, the trial court erred in deciding that blood tests results can never be conclusive. The trial court completely ignored the fact that while the results of blood tests used affirmatively to prove paternity are not conclusive, the Act itself makes the results of blood tests used to exclude the paternity of a particular individual conclusive. Section 6137 expressly states that the presumption of legitimacy “is overcome if the court finds that the conclusions of all the experts as disclosed by the evidence based upon the tests show that the husband is not the father of the child.” 42 Pa.C.S.A. § 6137 (emphasis added). See also Jones v. Trojak, 402 Pa.Super. 61, 586 A.2d 397, 399 (1991); Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983). If appellant had been given the opportunity to obtain blood tests and the results of those tests completely excluded appellant as the father of this child, that evidence alone would conclusively rebut the presumption.

The trial court erred in refusing to allow appellant to exercise his statutory right to obtain blood tests to attempt to rebut the presumption under the circumstances of this case.

The order of the trial court is reversed. The case is remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.

      . In John M. v. Paula T., 524 Pa. 306, 314, n. 2, 571 A.2d 1380, 1383-84, n. 2 (1990), the Supreme Court directed that the phrase "presumption of legitimacy” no longer be used in our jurisprudence. In its place, the Court substituted the phrase " 'the presumption that a child born to a married woman is a child of the marriage,’ and therefore of the woman’s husband."

      . The record is unclear on this point. The mother testified that the parties married in 1983 whereas the trial court opinion states that they were married in 1982. The exact date of marriage is not relevant to our disposition of this case.

      . The alleged father did not contest the level of support. He conceded that if he were found to be the child’s father, $75.00 per week was a reasonable amount.

      . This issue arose in Goldman because in 1957 the Supreme Court had held that the prior version of the Act, enacted in 1951, did not apply to actions brought for the support of children born during wedlock. See Commonwealth ex rel O’Brien v. O’Brien, 390 Pa. 551, 136 A.2d 451 (1957). Upon repeal of the 1951 Act and replacement of it by the 1961 Act, the question of the applicability of the Act to children born during wedlock once again arose.

      . In the instant case, the mother does not seriously allege that appellant is estopped to deny paternity, nor would we credit such an argument had it been fully argued. This record does not reveal that appellant has ever held this child out as his own.


source: Caselaw Access Project

author: HESTER, Judge:

license: Public Domain

text:
    594 A.2d 666
    COMMONWEALTH of Pennsylvania v. John C. SMOUSE, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 25, 1991.
    Filed July 10, 1991.

      Kim W. Riester, Pittsburgh, for appellant.
    Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and HESTER, JJ.
   HESTER, Judge:

John C. Smouse appeals from the judgment of sentence entered in the Court of Common Pleas of Allegheny County on August 15, 1990, following his conviction at a bench trial of third-degree murder. He was sentenced to a term of imprisonment of six to twelve years. In this timely appeal, appellant questions the adequacy of his criminal complaint and challenges the propriety of its authorization for the issuance of process. In addition, appellant asserts that he improperly was denied a preliminary hearing, that the trial court erroneously refused a requested demurrer, and that the evidence presented at trial was insufficient to support his conviction. We find that these issues are without merit and, accordingly, affirm.

The procedural history of this case may be summarized as follows. On September 12, 1989, shortly after David Piergalski’s badly beaten body was discovered in Pittsburgh’s Schenley Park, appellant was arrested and, by a complaint issued by a deputy coroner of Allegheny County, charged with criminal homicide. Two weeks later, the Allegheny County Coroner’s Solicitor conducted an inquest into Piergalski’s death and ordered appellant to stand trial on the charged offense. Following the denial of appellant’s omnibus pretrial motion and the waiver of his right to a jury trial, proceedings on the matter began.

On July 18, 1990, appellant was convicted of third-degree murder. One month later, following the denial of post verdict motions, the court imposed the described sentence and recommended that it be served in a minimum security facility. This appeal followed.

Initially, we examine appellant’s challenge to the adequacy of the criminal complaint. Appellant contends that the complaint improperly failed to set forth the facts relating to the charged offense in sufficient detail. This contention is without merit.

While it is clear that a criminal complaint need not set forth the facts relating to an offense with the particularity of an indictment, see Commonwealth v. Taraschi, 327 Pa.Super. 179, 475 A.2d 744 (1984); Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), a minimum amount of detail is required. According to Pa. R.Crim.P. 132(6)(a), a complaint in a court case must contain a summary of facts that is sufficient to advise the defendant of the nature of the offense charged. However, neither the statute allegedly violated nor the evidence demonstrating such violation need be set forth. Id. Furthermore, a citation to the statute in question, by itself, is insufficient to support a complaint. Id.

In the present case, the contested complaint accused appellant of committing the offense of criminal homicide in Pittsburgh on September 10, 1989, while acting with Mark A. Glusic. In addition, it stated that appellant intentionally, knowingly, recklessly or negligently caused the death of David Piergalski by beating him about the head and neck. Although the complaint did not identify the precise situs of the killing, the exact time that it occurred, or facts supporting a conclusion that appellant committed the offense in the manner described, there can be no question that by the information set forth, it generally advised appellant of the nature of the crime for which he was charged. Consequently, we conclude that appellant’s claim does not entitle him to relief.

Appellant also questions the propriety of the complaint’s authorization for the issuance of process. He contends that since a coroner generally lacks the power to act as an issuing authority, the deputy coroner’s signature on the complaint rendered the proceedings void ab initio. This issue is frivolous. It long has been clear that in cases involving either violent or suspicious deaths, a coroner or his properly authorized designee may act as an issuing authority. See Commonwealth v. Prosdocimo, 331 Pa.Super. 51, 479 A.2d 1073 (1984). Such power was extant at common law, see Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967), vacated on other grounds, 392 U.S. 647, 88 S.Ct. 2277, 20 L.Ed.2d 1344 (1968), and contrary to appellant’s assertions, survived both the enactment and the amendment of the Judicial Code. See Section 27 of Act 1976, July 9, P.L. 586, No. 142, as affected by Act 1982, Dec. 20, P.L. 1409, No. 326, § 316 [42 P.S. § 20076] (nothing in Title 42 shall impair or limit the existing rights, powers, functions or immunities of any district attorney, sheriff, register of wills or coroner).

We now turn to appellant’s contention regarding the denial of his right to a preliminary hearing. Appellant asserts that since the inquest conducted after his arrest was presided over by the Allegheny County Coroner’s Solicitor, an official allegedly lacking the authority of a committing magistrate, it did not amount to a preliminary hearing. Although appellant fails to further clarify his argument on this point, he implies that as there is no indication in the record of any proceeding satisfying the requisites of a preliminary hearing, his due process rights under the constitutions of both the United States and Pennsylvania were violated. This claim is devoid of merit.

Initially, we note that appellant does not argue that the coroner’s solicitor did not have the power of a deputy coroner and, consequently, could not properly act in the coroner’s place. Accordingly, for the purposes of argument, we will assume the existence of such power. Thus, resolution of the issue posed hinges upon whether the Coroner of Allegheny County possessed the authority of a committing magistrate.

In Commonwealth v. Prosdocimo, supra, we indicated that in cases of violent or suspicious death, a coroner or his properly authorized designee may act as a committing magistrate and conduct an inquest in lieu of a preliminary hearing. Since the coroner’s solicitor, the coroner’s properly authorized designee, conducted an inquest in the matter following appellant’s arrest for criminal homicide, we conclude that his preliminary hearing rights were not violated. Consequently, appellant’s claim of error must fail.

Appellant also asserts that the trial court erroneously refused his demurrer with respect to the crimes of first and second-degree murder, offenses falling within the ambit of the general charge of criminal homicide. See 18 Pa.C.S. § 2501. However, since a defendant waives his right to challenge a trial court’s denial of a demurrer by presenting his case, see Commonwealth v. Burns, 390 Pa.Super. 426, 568 A.2d 974 (1990), and our review of the record reveals that appellant presented evidence following the trial court’s decision, we find that he is not entitled to relief on his claim.

Finally, we turn to appellant’s challenge to the sufficiency of the evidence supporting his conviction. In support of this challenge, which we find is without merit, appellant asserts that the evidence failed to demonstrate beyond a reasonable doubt that he inflicted the fatal blows upon Mr. Piergalski, that he committed the killing with malice, that the killing was not the result of a sudden passion or a mistaken belief as to the necessity of acting in self-defense, and that he did not act in self-defense.

Preliminarily, we note that our standard for reviewing challenges to the sufficiency of the evidence is well-established. In Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988), our Supreme Court discussed that standard and stated:

The test for determining the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the [fact-finder] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Syre, 507 Pa. 299, 489 A.2d 1340 (1985). This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Sullivan, 472 Pa. 129, 150, 371 A.2d 468, 478 (1977); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976).

See also Commonwealth v. Scott, 376 Pa.Super. 416, 546 A.2d 96 (1988). Keeping these principles in mind, we must examine the evidence presented at trial and, thereafter, consider each of appellant’s claims. Our review of the record reveals the following facts.

On the morning of September 10, 1989, while Jerome Freundlich was walking his dogs in an area of Schenley Park often frequented by members of the gay community, he discovered the body of David Piergalski. After determining that Piergalski, who had suffered numerous injuries, including abrasions, hemorrhages, and fractures of the facial skull, was not breathing, he requested a passing motorist to summon the police. Two days later, as the investigation into the beating death was proceeding, appellant, whose blood had been discovered on Piergalski’s shirt, surrendered to the police and was charged with criminal homicide.

On the evening prior to Freundlich’s grisly discovery, appellant, who resided with both his mother and a cousin, Robert Borowski, woke Borowski and inquired as to whether he would care to accompany him to the Oakland section of Pittsburgh so that they could “party.” After Borowski declined that invitation, appellant drove away in their jointly-owned van.

The following morning, when Borowski awoke, appellant requested him to examine the interior of the van. Borowski complied with this request and discovered a large amount of blood on its carpet and walls. Borowski asked about the blood. Appellant, who sometimes drove to Schenley Park to harass homosexuals, admitted that while in the park with a friend, Mark Glusic, he permitted a gay man to enter the van. Appellant told Borowski that when the man made sexual advances toward him, a scuffle ensued, and that during the course of this altercation, he punched the man several times. Appellant stated that he suffered a minor cut on the leg, but was able to throw the victim out of the van. Appellant then indicated that he drove away.

Appellant later attempted to clean the van. Although he scrubbed the carpet with soap and water, he was unable to remove all traces of the previous evening’s activities. While appellant removed enough blood to render enzyme testing of it impossible, subsequent analysis determined that the blood matched Piergalski’s general type. In addition, examination of fibers extracted from the carpet containing the blood were found to be consistent with those discovered on the decedent. Appellant’s shoes also were stained with blood matching Piergalski’s type.

On September 11, 1989, after news of the discovery of Piergalski’s body began to spread, appellant telephoned his cousin and inquired as to whether he had informed anybody of the previous day’s events. Appellant then amended his tale regarding those events by indicating that he saw no injuries on the gay man following the altercation. In addition, he mentioned that the confrontation occurred in Tarentum.

Appellant initially asserts that the evidence presented at trial did not demonstrate that he caused the death of Piergalski. Thus, he contends that the evidence failed to establish that he committed the killing necessary to support his conviction for third-degree murder. This claim is frivolous. From the circumstantial evidence set forth above, it is clear that the fact-finder properly could have concluded beyond a reasonable doubt that appellant inflicted blows that resulted in Piergalski’s death. Although the evidence does not exclude all possibility that a third party may have committed the crime, we note that the Commonwealth was under no obligation to do so. See Commonwealth v. Akers, 392 Pa.Super. 170, 572 A.2d 746 (1990).

Next, appellant asserts that since Piergalski’s death was caused by blows inflicted by fists rather than a deadly weapon, the Commonwealth failed to demonstrate that he acted with malice. Even if we assumed the factual premise of appellant’s assertion, he would not be entitled to relief.

It long has been clear that malice is an essential element of third-degree murder and is the distinguishing factor between murder and manslaughter. Commonwealth v. Austin, 394 Pa.Super. 146, 575 A.2d 141 (1990). “Malice in its legal sense exists not only where there is particular ill will, but also where there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Id., 394 Pa.Super. at 153, 575 A.2d at 145 (quoting Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230 (1981)). In cases where fists, rather than a weapon, are utilized to commit a killing, malice may not be presumed. Commonwealth v. Petrino, 332 Pa.Super. 13, 480 A.2d 1160 (1984). However, it may be inferred from certain circumstances. Id. Among the circumstances that should be considered when determining the existence of malice in a case where fists are used to cause a death are the size of the assailant, the ferocity of the attack, its duration, the provocation for it, and the manner in which the fists were used. See Commonwealth v. Buzard, 365 Pa. 511, 76 A.2d 394 (1950); Commonwealth v. Dorazio, 365 Pa. 291, 74 A.2d 125 (1950).

Instantly, in light of the numerous injuries suffered by Piergalski, including fractures of the skull, it is clear that appellant’s assault upon Piergalski was both ferocious and unrelenting. Furthermore, since the evidence demonstrated that on previous occasions appellant had gone to Schenley Park for the express purpose of harassing homosexuals, we find that the trial court properly could have determined that appellant hated homosexuals and that he had gone to Schenley Park on the fatal evening with the intention of attacking a homosexual. Thus, even though the record demonstrates that appellant was smaller than Piergalski and is silent on the duration of the incident, the court correctly could have found that Piergalski’s conduct on that evening did not act as the catalyst for the attack. Consequently, appellant’s claim of error in this regard must fail.

Appellant also asserts that since the Commonwealth failed to disprove that he acted under a sudden passion resulting from serious provocation or the mistaken belief that he was entitled to use deadly force to defend himself, matters that would lower his culpability to that of voluntary manslaughter, see 18 Pa.C.S. § 2503, his conviction for third-degree murder may not stand. This assertion is without merit.

We first consider the question of whether the evidence disproved that appellant acted under a sudden passion resulting from serious provocation. As stated earlier, the trial court, based upon the fact that appellant previously had gone to Schenley Park to harass homosexuals, properly could have determined that appellant had not been provoked into committing the assault by Piergalski’s conduct. Thus, the evidence clearly negated any inference that the crime committed was the result of a sudden passion.

We now turn to the issue of whether the evidence disproved that appellant acted under a mistaken belief that he was entitled to use deadly force to defend himself. It long has been clear that in order to utilize such a mistaken belief to lower the culpability for a killing to voluntary manslaughter, the killing, but for the mistaken belief, must have been justified under the general principles of self-defense. See 18 Pa.C.S. § 2503(b). One of the most important principles in any discussion of self-defense as it relates to a killing is that of retreat, which is mentioned in 18 Pa.C.S. § 505(b)(2)(ii). That subsection indicates that a killing is not justifiable if “the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take.”

In the present case, even if we assumed that Piergalski were the aggressor in the scuffle, an assumption belied by both appellant’s prior conduct and the extensive injuries suffered by Piergalski, the evidence fails to establish that appellant attempted to retreat prior to utilizing deadly force. In view of Piergalski’s injuries, appellant must have known that he could have retreated with complete safety. Since appellant failed to comply with the duty of retreat, we conclude that the evidence clearly demonstrated that he had not committed unreasonable belief voluntary manslaughter.

Appellant’s last contention is that the Commonwealth failed to disprove that he acted in self-defense. In light of our previous discussion concerning unreasonable belief voluntary manslaughter, we find that the evidence clearly demonstrates the contrary. Accordingly, appellant is not entitled to relief on this matter.

Judgment of sentence affirmed.

      . Our decision is unaffected by either Whitely v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), or Commonwealth v. Flowers, 245 Pa.Super. 198, 369 A.2d 362 (1977). In those cases, unlike the one presently before us, the question at issue concerned whether the complaint contained sufficient information from which a determination of probable cause could be made for purposes of securing a warrant. Although the facts set forth in each case clearly demonstrate that the complaints contained information that was sufficient to advise the defendants of the nature of the offenses for which they were charged, the respective courts concluded that the complaints, by themselves, would not support a finding of probable cause.

      . Although appellant, by his argument, does not challenge the power of the deputy coroner to act in the coroner’s stead, we note that such authority is set forth in 16 P.S. § 1231.

      . We note that appellant also asserts that the coroner’s solicitor, which he at times confuses with the coroner, engaged in ex parte communication with police officers in connection with the preparation of the complaint. In addition, he contends that the coroner’s solicitor was a material witness with respect to the autopsy report. Consequently, he implies that the solicitor properly could not have conducted the preliminary hearing. However, as our review of the record reveals no evidence indicating that the solicitor participated in the preparation of either the complaint or the autopsy report, we conclude that appellant’s claims are unsupported by the record and afford him no basis for relief.

      . In an attempt to obtain review of this issue, appellant relies upon authority indicating that in cases where a defendant presents a defense following the denial of a demurrer, his challenge to the court’s decision will be treated as one relating to the sufficiency of the evidence. See Commonwealth v. Burns, supra. However, as a challenge to the sufficiency of the evidence logically presupposes a conviction for the offense to which it relates and the trial court, by its decision, acquitted appellant of both first and second-degree murder, this principle has no impact upon our resolution of the matter.

      . We note that appellant essentially reiterated this story in his testimony.

      . We note that the testimony of the forensic pathologist who conducted the autopsy, Dr. Leon Rozin, seems to indicate that Piergalski’s injuries may have been caused by something other than fists.

      . In addition, we note appellant’s brief contains no allegation indicating that he attempted retreat.


author: JOHNSON, Judge:

text:
    594 A.2d 672
    COMMONWEALTH of Pennsylvania v. Douglas GELBER, Appellant.
    Superior Court of Pennsylvania.
    Argued May 7, 1991.
    Filed July 10, 1991.

      Dennis J. Cogan, Philadelphia, for appellant.

      Kathy Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee.
    Before ROWLEY, President Judge, and CIRILLO and JOHNSON, JJ.
   JOHNSON, Judge:

Following a jury trial, Douglas Gelber was convicted of Murder in the Third Degree and Possession of Instruments of Crime. Post-verdict motions were heard and denied, and Gelber was sentenced to seven to fifteen years’ imprisonment. We affirm.

On appeal, Gelber presents five issues for our review which may be stated as follows:

I. Whether sufficient evidence was presented at trial to support a finding of malice and a finding that the defendant had not acted in self-defense.
II. Whether a statement made to police was the result of an illegal arrest or a denial of the defendant’s right to counsel.
III. Whether the admission of evidence regarding defendant’s prior drug related activities constituted prejudicial error.
IV. Whether the statement in the prosecutor’s closing argument that the defendant was a “stone-cold drug addict” who was “strung out on drugs” at the time of the killing was supported by the record.
V. Whether the trial court abused its discretion by refusing to grant a new trial based upon recanted testimony.

Initially, Gelber contends that the Commonwealth failed to establish by sufficient evidence the element of malice, a necessary element to a conviction for murder. He also contends that the Commonwealth failed to prove, beyond a reasonable doubt, that the killing was not in self-defense. When reviewing an attack upon the sufficiency of the evidence, our standard of review is well established. The sufficiency of the evidence must be evaluated upon the entire trial record. Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977). All of the evidence must be read in the light most favorable to the Commonwealth, and the Commonwealth is entitled to all reasonable inferences arising therefrom. Id. An attack upon the sufficiency of the evidence admits all the facts which the Commonwealth’s evidence tends to prove, but contends that such facts fail to establish, beyond a reasonable doubt, the elements of the crimes for which the defendant has been convicted. Id. So viewed, the record reveals the following:

Doug Gelber had been involved with the use of drugs since high school, and, in the later years, he became involved in the sale of drugs. During this period, he became friendly with one Michael Wallace with whom he used and sold drugs.

Throughout 1986, both Gelber and his wife were unemployed. That year and during the first several months of 1987, Gelber's father tried to help Gelber through financial difficulties, contributing between $35,000 and $40,000. Mrs. Gelber started to work early in 1987, and became more insistent that Gelber also find a job. Consequently, Gelber lied to his wife and told her that he had found work. For three weeks, Gelber left the house each morning, telling his wife that he was going to work when, in fact, he was spending time with Wallace consuming and selling drugs. Gelber had told Wallace recently that, because of pressing financial problems, he wanted to purchase cocaine for resale to “his customers.” Wallace had tried unsuccessfully to help Gelber borrow the necessary money to make such a purchase.

Jesus Jimenez, the victim, had moved from New York to Philadelphia in the Summer of 1987. He met Wallace, and Wallace promised to help him sell drugs. In late June, Jimenez returned to New York and borrowed several thousand dollars so that he could purchase two ounces of cocaine to sell to a “blancito,” i.e., a white man, in Philadelphia.

On July 1, Wallace was arrested on unrelated charges. Prom jail, he arranged a conference telephone call between himself, Jimenez and Gelber. Gelber and Jimenez discussed prices for the cocaine which Jimenez was to sell to Gelber.

Later that evening, Gelber went to the home of Wanda Singleton, Wallace’s girlfriend, to meet Jimenez. Gelber purchased a small amount of cocaine from Jimenez but expressed dissatisfaction with its quality. Jimenez assured Gelber that he had a better grade of cocaine available, and they agreed to meet on a street corner five to six blocks from Gelber’s home the next day for a transaction.

Gelber and Jimenez met at the appointed time, and Gelber suggested that they complete the transaction at his home as it was raining. Gelber knew that his son and the babysitter, based on their daily routine, would be out of the house for several more hours.

Jimenez was killed shortly after arriving at Gelber’s home. He died from multiple stab wounds to the areas of the face, shoulder, chest, ribs, spinal column, lung, liver and back. There were also numerous defensive wounds to his hands and arms. Gelber dragged Jimenez’ body to the basement and wrapped and tied it with various fabrics and clothesline. He then cleaned up the blood and straightened the furniture so that no one would be aware of what had transpired.

Jimenez’ dead body remained in Gelber’s basement for about a week. Gelber decided to dispose of the body by dumping it in Cianfrani Park where it was found by workers the following morning. The police were notified. Detectives followed drag marks from where the body was found through several streets. The marks ended at a gate which opened onto a common yard for several houses, one of which was Gelber’s. The gate to the yard was ajar, and the detectives observed a woman and a child inside the yard. The officers identified themselves and asked to see the man of the house. The woman called into the house and a man’s voice replied that he would be right down.

Gelber appeared, asked the detectives to be seated and offered them a drink. He professed no knowledge of the drag marks or of any dead person. He did suggest that the owner of one of the other houses sharing the common yard might be a good person to question. At various times during the day, police detectives returned to Gelber’s yard to speak with him. By that afternoon, Mrs. Gelber returned home and expressed concern that her husband was being interviewed.

A detective canvassing the area for evidence recovered a piece of rope from a nearby trash can. The rope resembled the rope which bound the body and appeared covered in blood, but it had not been discovered when the can was checked several hours earlier.

The detectives sent for a search warrant for Gelber’s house. While awaiting the delivery of the warrant, Gelber started to enter the house and was told he could not do so unless accompanied by a detective. Detective Dougherty entered the house with Gelber, at which time Mrs. Gelber told Gelber not to say anything until he talked with an attorney. Mrs. Gelber also entered the house and, while she was attempting to locate an attorney, Gelber indicated that he wanted to go to the bathroom upstairs. Gelber, accompanied by Detective Dougherty, went upstairs where both he and the detective used the bathroom.

While upstairs, Gelber indicated that he did not want to talk in his wife’s presence but wanted to give a statement to the detective. Following Miranda warnings, Gelber admitted to having killed Jimenez. Gelber claimed that Jimenez had attempted to rob him with a knife, and that he was merely defending himself. In explaining the killing, Gelber stated that “coke was a big problem for him, that he had no job and it had gotten to be very expensive.” N.T., September 21,1989, at 49. He also stated that “he needed help for the coke problem that he had because it was costing so much money.” Id. at 51. Mrs. Gelber finally located an attorney who talked with Gelber and the detectives. Shortly thereafter, Gelber was arrested.

It is undisputed that Gelber killed Jimenez. Gelber maintains, however, that the killing was committed in self-defense and was, therefore, justifiable. He argues that the evidence presented was insufficient to establish either that the killing was done with malice, a required element in a prosecution for murder, or that the killing was not done in self-defense. The relationship between malice and self-defense has recently been addressed by our Supreme Court.

“[I]n a prosecution for murder, evidence of provocation or self-defense tends to negate the malice required to prove murder.” Commonwealth v. Heatherington, 477 Pa. 562, 568, 385 A.2d 338, 341 (1978). Further, in order to meet its burden of proof on the element of malice, the Commonwealth must exclude self-defense beyond a reasonable doubt. Id.

Commonwealth v. Carbone, 524 Pa. 551, 560, 574 A.2d 584, 589 (1990). It is therefore appropriate that we consider Gelber’s arguments on these issues together.

Gelber asserts first that the only evidence “which dealt specifically with the killing came either directly or indirectly from the defendant.” Appellant’s Brief at 46. He notes that it was the Commonwealth that introduced his statement that he had killed Jimenez in self-defense. He asserts that, although “malice may be inferred from the intentional use of a deadly weapon on a vital part of the body, that inference is not permitted where it is negated by other evidence presented by the Commonwealth.” Appellant’s Brief at 48 (emphasis by Appellant).

In support of this proposition, we are directed to Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975). In that case, Caye shot and killed a man who had forced his way through a padlocked door into a residence where Caye was staying. In reversing Caye’s murder conviction, our Supreme Court recognized the well established principle that an inference of malice may be drawn from the fact that a deadly weapon had been used upon a vital part of another’s body, Id., 465 Pa. at 101, 348 A.2d at 137, but held that the inference of malice would not be permitted “where the direct evidence presented in the Commonwealth’s case proves the contrary.” Id., 465 Pa. at 101, 348 A.2d at 137 (emphasis added.) The Court further concluded that there was no justification for a finding of malice in that case.

Gelber’s reliance upon Caye is misplaced. Here, unlike Caye, substantial physical and circumstantial evidence was presented to undermine Gelber’s version of the incident, and his self-serving claim of self-defense simply falls short of proving an absence of malice. Gelber’s claim depends upon a determination of credibility properly left to the jury; it follows that, if the jury disbelieved him, the inference of malice was free to arise from the nature of the killing. “It has long been the law of this Commonwealth that ‘the use of a deadly instrument on a vital part of the body is sufficient to establish the specific intent to kill required for a conviction of murder.’ ” Carbone, 524 Pa. at 562-63, 574 A.2d at 590, (quoting Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972)). “[Wjhere there is evidence from which a jury can reasonably infer malice, the Commonwealth has met its burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Carbone, 524 Pa. at 562, 574 A.2d at 590 (citation omitted.)

Gelber argues separately that the Commonwealth failed to carry its burden of disproving self-defense. It is true that “when there is evidence at trial from whatever source that a killing may have been done in self-defense, the burden is upon the Commonwealth to prove beyond a reasonable doubt that the defendant was not acting in self-defense.” Commonwealth v. Eberle, 474 Pa. 548, 554, 379 A.2d 90, 93 (1977) (citing Commonwealth v. Cropper, 463 Pa. 529, 537-38, 345 A.2d 645, 649 (1975)). This burden is met where the evidence establishes at least one of the following:

(1) that the defendant did not reasonably believe it was immediately necessary to kill in order to protect himself against death or serious bodily harm, or that the defendant used more force than was necessary or reasonably appeared to him to be necessary to save himself from death, great bodily harm or the commission of a felony,
(2) that the defendant provoked the use of force, or
(3) that the defendant had a duty to retreat and that retreat was possible with complete safety.

Commonwealth v. Fisher, 491 Pa. 231, 420 A.2d 427 (1980) (citations omitted.)

Gelber argues that the Commonwealth’s evidence failed to establish any of these elements, and thereby failed to rebut his claim of self-defense. He directs us to the facts of Eberle in support of this conclusion. In Eberle, the defendant was attacked in her apartment by a friend whom she stabbed a single time, killing him. The trial judge, sitting without a jury, expressly found that Eberle “believed that she was in danger of great bodily harm or death.” Eberle, 474 Pa. at 554, 379 A.2d at 93. On review, the Court stated that “[i]n so finding, the trial court accepted the version of the incident related by [Eberle] from the witness stand.” Id. The conviction was reversed, however, because the Court disagreed with the trial court’s determination that such a belief was unreasonable. Unlike the defendant in Eberle, Gelber does not have the benefit of a finding that his version of the incident was, in fact, what occurred. Nor does he have the benefit of a finding that he actually believed himself to be in danger of death or serious bodily harm. Although the jury was instructed that it was free to so find and that such a finding would be a complete defense to the charges, a verdict of guilty was rendered.

Gelber also directs us to the facts of Fisher, supra. Fisher’s testimony, corroborated by both Commonwealth witnesses and uncontradicted by any physical evidence, was as follows: Fisher and the victim met to settle a disagreement. The decedent exited his vehicle and shot Fisher in the thigh, causing him to fall to the ground. The decedent then approached, aimed the gun at Fisher’s head and a struggle for the gun ensued. Fisher managed to grab the gun and began hitting the decedent about the head with it. Although the decedent was found alive at the scene, he died shortly after at a hospital. Fisher was convicted of voluntary manslaughter and appealed. Our Supreme Court concluded that the second and third elements of self-defense were inapplicable, and thus reviewed the evidence only to determine whether the Commonwealth had proven, beyond a reasonable doubt, that Fisher did not reasonably believe himself to be in danger of death or serious bodily injury. In so doing, the Court concluded that the evidence did not support such a finding, and reversed.

As discussed, the Commonwealth here, unlike in Fisher, presents sufficient evidence from which a finder of fact could conclude that Gelber was the aggressor. By his own admission, Gelber had sole possession of the knife and Jimenez was unarmed when the stabbing began. Jimenez was stabbed twenty times, including fourteen times in the back. The Commonwealth’s expert witness testified that the back wounds were likely inflicted from behind based upon their location and the angles at which they were inflicted. The jury may have found significant the fact that Gelber suffered no injuries in the struggle. Finally, expert testimony established that the wounds inflicted upon Jimenez’ hands were consistent with the Commonwealth’s theory that Jimenez was defending himself against a knife attack with empty hands. We believe that this evidence, if believed, is sufficient to support a finding that Gelber was not acting in self-defense.

Next, Gelber contends that the suppression court erred by admitting the statement that he made to Detective Dougherty. When reviewing an suppression court’s denial of a motion to suppress evidence, our standard of review is well established.

Our responsibility is to “determine whether the record supports the factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Hubble, 318 Pa.Super. 76, 78, 464 A.2d 1236, 1237 (1983). Additionally, we must consider the prosecution’s evidence and so much of the defendant’s evidence as remain uncontradicted. Commonwealth v. Mancini, 340 Pa.Super. 592, 490 A.2d 1377 (1985).

Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564 (1990).

In this case, we note that the suppression court denied the motion to suppress but did not make findings of fact or conclusions of law on the record, although such is required by Pa.R.Crim.P. 323(i). Both this court and our Supreme Court have expressly disapproved of this practice and have, when necessary, vacated judgment of sentence and remanded for a new suppression hearing. See, e.g., Commonwealth v. Jackson, 483 Pa. 101, 394 A.2d 930 (1978); Commonwealth v. Spaulding, 275 Pa.Super. 261, 418 A.2d 712 (1980); Commonwealth v. DeSantis, 337 Pa.Super. 70, 486 A.2d 484 (1984). Where possible, however, we have looked to the trial court’s resolution of post-trial motions, as well as the record, in order to determine the propriety of suppression orders in these situations. See, e.g., Commonwealth v. Guinther, 290 Pa.Super. 441, 434 A.2d 834 (1981); Commonwealth v. Haynes, 395 Pa.Super. 322, 577 A.2d 564 (1990). We do so again today.

Gelber contends initially that his arrest was unconstitutional and that the resulting statements were, therefore, unlawfully obtained. He asserts that he was effectively arrested outside his home when he was told that he would not be permitted to reenter unaccompanied by a police escort.

In denying post-trial motions, the trial court stated that Gelber:

was not at anytime prior to or during the meeting, ever told that he was under arrest. In fact, he was not restricted as to his movements, but was only informed that if he desired to go into the house he would have to be accompanied by a police officer to ensure the preservation of possible evidence.

Opinion of November 19, 1990, at 26.

Our review of the suppression transcript reveals that Detective Dougherty’s testimony supports this finding. Suppression Transcript, April 26,1989, at 85, 91-92. Gelber contends, however, that he was effectively arrested when he was denied access to his home unescorted. Even were we to agree with Gelber that this action constituted an arrest, a conclusion we need not reach, Gelber fails to state how this would constitute an illegal arrest. Accordingly, this argument affords Gelber no relief.

Gelber argues in the alternative that, if in fact he was arrested once inside the house, as held by the suppression court, the arrest was an illegal violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). While Payton stands for the proposition that the Fourth Amendment prohibits a warrantless and nonconsensual entry into a suspect’s home in order to make a routine arrest, Payton, 445 U.S. at 576, 100 S.Ct. at 1374-75, 63 L.Ed.2d at 644, it does not prohibit warrantless arrest from occurring within a home. Furthermore, we know of no reason to conclude that the arresting officer entered the home for the purpose of arresting Gelber. Indeed, the record reflects that Officer Dougherty could have arrested Gelber outside the home had he so desired; rather, he entered the home with Gelber for the purpose of preserving any evidence that might be present while allowing Gelber to use the bathroom. Payton simply does not apply to the facts before us.

Gelber also contends that the statement was obtained in violation of his right to counsel. In support of this position, Gelber states that he invoked the right by placing a telephone call to his brother-in-law to get a referral to an attorney, and that the statement was obtained following that call. Although the trial court did not specifically find that Gelber had or had not made the call, nor did the court conclude whether this would constitute an invocation of the right to counsel, the trial court did find that Gelber later reinitiated the conversation with Dougherty which led to the statement. The court also found that Miranda rights were read to Gelber immediately prior to the statement and that these rights were voluntarily waived. Again, this finding is sufficiently supported by the record, and therefore this argument provides Gelber no relief.

Next, Gelber contends that the trial court committed reversible error by admitting evidence of his prior involvement with cocaine as both a user and seller. He argues that those transactions are unrelated to the instant case and are therefore inadmissible.

Gelber correctly states that evidence of a separate, unrelated crime is generally inadmissible to prove the crime for which a defendant is on trial. Commonwealth v. Hall, 523 Pa. 75, 85, 565 A.2d 144, 149 (1989) (citing Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986)). Where the evidence is relevant, however, “the mere fact that testimony of another crime may be prejudicial will not prevent its introduction into evidence.” Hall, 523 Pa. at 85, 565 A.2d at 149, (quoting Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975)). For example, prior crimes or bad acts are admissible where such evidence tends to establish any of the following: 1) motive; 2) intent; 3) absence of mistake or accident; 4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or 5) the identity of the person on trial as the person who committed the crime in issue. Commonwealth v. Bond, 261 Pa.Super. 311, 316, 396 A.2d 414, 416 (1978). Further, such evidence may be admitted to rebut statements in a defendant’s confession which creates inferences especially favorable to him. Commonwealth v. Roots, 452 Pa. 535, 540, 306 A.2d 873, 876 (1973); Commonwealth v. Saxton, 516 Pa. 196, 207, 532 A.2d 352, 357 (1987).

Here, the Commonwealth’s theory of the case was that Gelber was having severe financial difficulties. It introduced evidence that Gelber had been a dealer of cocaine previously and that he sought to pay his present debts by selling cocaine. The Commonwealth also introduced Gelber’s statements that he had a “big problem” with cocaine, in part, because it was so expensive. The Commonwealth presented evidence that Wallace had introduced Gelber and Jimenez in order that Gelber might purchase cocaine from Jimenez for resale, but that Gelber had no money with which to make such a purchase. Evidence was introduced to show that Jimenez and Gelber agreed to a substantial cocaine sale the day of the killing. Finally, the Commonwealth introduced the evidence, including the confession, that Gelber had killed Jimenez.

By contrast, Gelber’s “confession” included a claim of self-defense. Gelber contends that he contacted Jimenez in order to purchase a small amount of cocaine for personal use, and that Jimenez attempted to rob him during the transaction.

In determining whether the evidence of prior drug dealing was properly admitted, we are guided by two decisions of our Supreme Court. In Roots, supra., the defendant claimed that she had killed a man in self-defense. She claimed that she had seen him rob a bar, and that he had returned to retaliate, believing that she had identified him to the bar owner. The prosecution introduced evidence that the defendant had participated in the robbery with another individual, and that the decedent was not involved. Our Supreme Court stated:

Appellant first argues that it was prejudicial error to permit the prosecuting attorney to make such remarks, since the Commonwealth failed to prove that she had in fact, participated in the robbery and any attempt to prove that he was a participant in the robbery would violate the rule that evidence of other crimes is generally not admissible, unless it indicates a common scheme or design. However, there is another rule which permits the Commonwealth to introduce evidence to rebut statements in a defendant’s confession which creates inferences especially favorable to him. See Commonwealth v. Rush, 277 Pa. 419, 121 A. 111 (1923). In the instant case, appellant, in her statement, claimed that she killed in self-defense when the decedent threatened to kill her for reporting his involvement in a robbery. It was entirely appropriate under such circumstances for the Common■wealth to rebut these inferences by offering evidence to show that the decedent was not a robber and that the appellant was not a good Samaritan.

Roots, 452 Pa. at 540, 306 A.2d at 876.

In Hall, supra., the Court held that evidence had been properly admitted where it “established that the victims were known drug dealers; further that the victims recently cheated the appellant in a drug deal and, finally that the appellant had killed the victims in revenge for cheating him. The prosecution’s questions were designed to establish the appellant’s motive for the killings.” Id., 523 Pa. at 85, 565 A.2d at 149.

Guided by these cases, we hold that the evidence in the instant case was properly introduced to rebut Gelber’s self-defense theory, and to show that his motivation in killing Jimenez was not self-defense, but to procure cocaine for resale. Further, any prejudicial effect that might result from the references to Gelber’s previous dealings in drugs was minimized when the Honorable Eugene H. Clarke, Jr., instructed the jury as follows:

You have heard evidence in this case tending to prove that the defendant was guilty of other misconduct for which he is not on trial. I’m speaking of the testimony to the effect that he participated in drug use and drug sales. This evidence is before you for a limited purpose. That is for the purpose of tending to show motive and to show the natural development of the facts. This evidence must not be considered by you in any way other than for the purposes I have just stated. You must not regard this evidence as showing that the defendant is a person of bad character or has criminal tendencies from which you might be inclined to infer guilt. If you find the defendant guilty it must be because you are convinced by the evidence that he committed the crimes charged and not because you believe he’s wicked or has committed other offenses.

Notes of Testimony, October 6, 1989, at 11-12. Cautionary instructions may suffice to eradicate any prejudice which might result from reference to prior criminal activity by the defendant, Commonwealth v. Morris, 513 Pa. 169, 175, 519 A.2d 374, 376 (1986) (collecting cases), and we believe that the instructions provided here were sufficient.

Gelber next complains that, in closing arguments, the prosecutor referred to him as a “stone-cold addict” who was “strung out on drugs” at the time of the incident. Gelber contends that he was prejudiced by these statements on the basis that the record fails to support such characterizations.

Our Supreme Court has addressed the extent to which the Commonwealth may argue its theory to the jury:

The district attorney must limit his remarks to facts in evidence and legitimate inferences therefrom. The district attorney may not ask the jury to draw unwarranted deductions from the evidence. During summation, the district attorney must present the facts in a manner which allows the jury to dispassionately and objectively evaluate the testimony in a sober frame of mind and which produces a verdict warranted by the evidence, not one inspired by emotion.

Commonwealth v. Anderson, 490 Pa. 225, 229, 415 A.2d 887, 888-9 (1980) (citations omitted).

At trial, Detective Dougherty testified that, after Gelber asked to speak to him upstairs, Gelber stated that “coke was a big problem for him, and that he had no job and it had gotten to be very expensive.” N.T., September 21, 1989, at 49. Detective Dougherty also testified that Gelber stated that “he needed help for the coke problem that he had because it was costing so much money.” Id. at 51. Gelber testified that he had been using cocaine since high school. N.T., October 4, 1989, at 10. Even though he had serious financial problems, and testified that cocaine was a problem because “among other things it costs too much,” Id. at 70, Gelber also testified that he continued to use cocaine once or twice monthly. Id. at 10. Gelber testified that he had bought and used cocaine the evening before the murder and was attempting to get more from Jimenez when the incident occurred. Id. at 19-20. Finally, Gelber testified that his wife “may have” told him that she was going to leave him if he did not get into a drug treatment program. Id. at 70.

The prosecutor is not limited in a closing argument to reiterating the testimony and evidence presented; indeed, a function of the closing argument is to permit counsel to attempt to persuade the finder of fact as to the conclusions they should draw from the evidence produced at trial. Commonwealth v. Brown, 332 Pa.Super. 35, 480 A.2d 1171 (1984), is instructive. In that case, we stated:

It is well established that a district attorney must have reasonable latitude in presenting a case to the jury and that he must be free to present his arguments with “logical force and vigor.” Commonwealth v. Smith, 490 Pa. 380, 416 A.2d 986 (1980), quoting Commonwealth v. Cronin, 464 Pa. 138, 143, 346 A.2d 59, 63 (1975). His remarks to the jury may contain fair deductions and legitimate inferences from the evidence presented during the testimony. Commonwealth v. Fairbanks, 453 Pa. 90, 306 A.2d 866 (1973); Commonwealth v. Stevens, 276 Pa.Super. 428, 419 A.2d 533 (1980).

Brown, 332 Pa.Super. at 44, 480 A.2d at 1176. While the evidence presented would not necessitate the inference that Gelber was addicted to cocaine or that his desire for the drug played a part in the motivation for the murder, we believe that the prosecution was free to argue in favor of that inference.

Finally, Gelber argues that he is entitled to a new trial based upon the recantation of testimony by Wallace. At trial, Wallace’s testimony included the statement that he had never seen Jimenez with a weapon. After trial, he sought to recant that one aspect of his testimony.. At a hearing on the issue, Wallace testified that Detective Dougherty and the prosecutor had instructed him to lie regarding whether he had ever seen Jimenez with a weapon. In denying post-trial motions, Judge Clarke stated that, having observed Wallace’s testimony both at trial and at the hearing, he was not convinced of Wallace’s truthfulness at the latter proceeding. Opinion at 29.

Our standard in reviewing the denial of a new trial based upon recanted testimony is set forth as follows:

The well-established rule is that an appellate court may not interfere with the denial or granting of a new trial where the sole ground is the alleged recantation of state witnesses unless there has been a clear abuse of discretion.
Recanting testimony is exceedingly unreliable, and it is the duty of the court to deny a new trial where it is not satisfied that such testimony is true. There is no less reliable form of proof, especially when it involves an admission of perjury.

Commonwealth v. Anderson, 466 Pa. 339, 341-42, 353 A.2d 384, 386 (1976) (citations omitted.) The trial court, having had the opportunity to observe and judge the demeanor and credibility of the witness cannot be said to have abused its discretion in denying a new trial.

Judgment of sentence affirmed.


author: MONTEMURO, Judge:

text:
    594 A.2d 682
    Joseph R. BARRON v. Margaret T. BARRON, Appellant.
    Superior Court of Pennsylvania.
    Argued June 13, 1991.
    Filed July 15, 1991.

      Donald J. Martin, Norristown, for appellant.
    John D. Conroy, Doylestown, for appellee.
    Before MONTEMURO, BECK and CERCONE, JJ.
   MONTEMURO, Judge:

Appellant, Margaret T. Barron, (“mother”) appeals from a custody order in this action brought by appellee, Joseph R. Barron (“father”) for custody of the parties’ daughter, Christine. We remand for further proceedings.

The parties were married on July 3, 1971 and separated on June 13, 1990. Christine, their only child, was born on December 26, 1984. Following a hearing, the trial court granted joint legal custody in both parents. The order provides that father is to have primary physical custody of Christine during the school year; during this period, mother has partial physical custody every other weekend, from 9:00 a.m. Saturday until 8:00 p.m. Sunday, and every Wednesday evening from 6:00 to 8:00. During the summer, mother is to have primary physical custody of Christine from the time school lets out until August 1st, while father has partial custody every other weekend during this period. Each parent has an uninterrupted two-week period of vacation with Christine each year. The custody order also sets forth a holiday schedule by which each parent has Christine on three holidays per year; in addition, the parents alternate between Christmas Eve and Christmas day from year to year.

On appeal, mother argues that the factual findings of the trial court are unsupported by the record. Mother seeks a remand of the case for further development of the record, specifically for a determination of the extent of father’s “alleged drinking problem” and its effect on Christine, and for a determination of the effect of mother’s lesbian relationship on Christine.

Our primary concern in this case, as in all custody cases, is that the best interests of the child be served.

“(O)ur law has long recognized that the scope of review of an appellate court reviewing a custody matter is of the broadest type ... Thus, an appellate court is not bound by deductions or inferences made by a trial court from the facts found; ... nor must a reviewing court accept a finding which has no competent evidence to support it ... ******
However, we have also taken great care to stress:
‘... (T)his broader power of review was never intended to mean that an appellate court is free to nullify the factfinding function of the hearing judge ... ’ ******
(but, instead is to remain) within the proper bounds of its review and (base a decision) upon its own independent deductions and inferences from the facts as found by the hearing judge. (Citations omitted; emphasis added.).” ******
“ ‘(W)e have recognized that the trial judge is in a position to evaluate the attitude, sincerity, credibility, and demeanor of the witness. Because we are not in such a position, we have recognized that a trial judge’s determination of custody should be accorded great weight. Only where we are constrained to hold that there was a gross abuse of discretion should an appellate court interfere with the decisions of the hearing judge ...’ (Citation omitted; emphasis added.).”

Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 236, 478 A.2d 800, 806 (1984), quoting Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 295-96, 368 A.2d 635, 637 (1977). See also Lombardo v. Lombardo, 515 Pa. 139, 147, 527 A.2d 525, 529 (1987).

At trial, both parties presented testimony on their lifestyles, past and present, and their involvement with Christine. The parties had been married for nineteen years prior to their separation. Mother had moved out of the family home six weeks before the trial which was held on July 30, 1990. Between the initial date of separation and the time of trial, the parties had been sharing physical custody of Christine, with each having custody on alternate weeks.

Father lives in a working-class neighborhood in Levittown in the marital residence previously shared by the parties. N.T. July 30, 1990 at 3. For the past 15 years, he has worked as a painting supervisor at a firm located in Feasterville roughly seven miles from his home; his hours are 8:00 a.m. to 4:30 p.m., and thus he is available during the evenings and weekends to care for Christine. Id. at 4-5. As of the time of the hearing, Christine was scheduled to begin kindergarten in the upcoming fall of 1990. Father had arranged for a longtime friend of the family, Linda Crosby, to provide child care during the hours that father is working and Christine is not at school, including escorting the child to the dance classes in which Christine has been enrolled for three years. Id. at 9, 14. In the event Ms. Crosby is unavailable to baby-sit, Ms. Crosby’s husband Bob or sixteen-year-old daughter Bernadette will fill in for her. In fact, the Crosbys had already done some babysitting for father during those weeks before trial in which father had custody of Christine. Linda Crosby testified at the trial and concurred in father’s testimony as to the child care arrangement; Bob Crosby also testified and indicated that he was supportive of the arrangement.

Father shares numerous activities with Christine, including bike-riding, swimming, fishing, camping, and walks to the park. Id. at 11. Mother’s mother and siblings have homes near father’s neighborhood; father testified that he is very supportive of Christine continuing her relationship with her maternal relatives. Father characterized his relationship with Christine as “very close.” Id. at 13. He described the child as somewhat confused by mother and father’s recent separation.

On cross-examination, father testified that mother was the primary caretaker of the child prior to the separation.

Mother testified that six weeks before the trial she had moved out of the marital residence to a duplex in Clark, New Jersey, a residential suburb of Edison, New Jersey; her new home is approximately an hour drive away from Levittown. Mother shares her new home with her lesbian partner, Ms. Sally Bell, and Ms. Bell’s seven year old daughter, Meghan. Although Sally Bell had been living in the Clark area prior to mother’s moving there, mother stated that her primary reason for moving to Clark was the prospect of a good job, as she had formerly held a good-paying management position with a firm in that area before she had given birth to Christine. Her former employer had expressed an interest in rehiring her when Christine starts first grade. In the meantime, mother works as a cashier at a foodstore during the evenings from 7:00 p.m. to 11:00 p.m. As the store is located directly across the street from her home, mother comes home during her nine o’clock break to put Christine to bed. Mother’s partner, Sally, cares for Christine when mother is working, and mother cares for Christine and Sally’s child Meghan while Sally is at work during the day. This child care arrangement had been in effect during the weeks in which mother had Christine since the parties had separated in June of 1990. Mother planned to send Christine to the local kindergarten in the upcoming fall and in fact had applied to work as an assistant teacher in the kindergarten, in addition to her job as a cashier. Mother had investigated the school that Christine would be attending if she lived primarily with mother and reported that the school was ranked very high nationally for academics. Mother had also located a local dance academy equivalent to the dancing school which Christine attended in Levittown.

Mother and Sally Bell take the children to local parks and playgrounds, as well as swimming, fishing and rollerskating. As of the July, 1990 hearing, mother had been romantically involved with Ms. Bell for four to five months, although Ms. Bell had been friendly with mother and father for about eight years, as Ms. Bell’s parents were friends and neighbors of mother and father in Levittown. N.T. July 30, 1990 at 44-47.

Mother testified that Christine was unaware of the nature of the relationship between mother and Ms. Bell, as mother and Sally Bell were not open about their relationship with Christine, they were not publicly affectionate and the sleeping arrangements were such that mother had her own bedroom set up in the new home. Mother testified that although she spends the night with Sally, the children are in bed asleep by the time mother goes to bed around midnight, and mother is up early in the morning before Christine wakes up. Mother opined that she would not want her daughter to develop a lesbian lifestyle, although she would be supportive if Christine chose such a lifestyle as an adult. Id. at 50, 56. Mother stated that after the custody issue was resolved, she intended to take Christine to a psychologist for assistance in determining the proper time for, and way of, explaining her lifestyle to Christine. Id. at 53. Mother decided to wait until Christine’s life stabilizes in terms of mother and father separating and getting divorced before broaching the topic of mother’s lifestyle. Mother noted that as a five year old child, Christine’s knowledge of adult relationships, be they heterosexual or homosexual, is very limited. Id. at 62.

Sally Bell testified that she works as an air-conditioning/refrigeration engineer at the University of Medicine and Dentistry, located an approximate twenty minute ride away from home. Her description of a typical day with Christine, Meghan and mother was consistent with mother’s testimony regarding the child care arrangement, the work schedules and the activities shared with the girls. She testified that she had known and socialized with mother and father for about seven years, as mother and father were friends and neighbors of Sally’s mother. Id. at 110-111. Sally described her own daughter as a straight-A student who is well adjusted socially. Sally noted that she is not openly gay in the community, and indicated that she would not want her daughter, Meghan, to opt for a lesbian lifestyle. Sally’s testimony was consistent with mother’s testimony to the effect that they are not openly affectionate with each other beyond the usual kiss and hug associated with hello and good-bye. Sally indicated that she and mother had discussed that right now was not the appropriate time to try to make Christine understand lesbianism and mother’s relationship with Sally. Sally also testified that she had told her own daughter not to discuss the topic with Christine.

Several witnesses testified as to father’s drinking habits. Mother testified that father drinks “constantly” when he is not working and becomes nasty and belligerent when he drinks. Id. at 66-67. When drunk, he has become verbally abusive to mother in front of Christine and their friends. Mother testified that there have been some evenings in which father drank in front of Christine, and had even passed out from drinking when mother was at work and the child was still up. Id. at 67. On one occasion, father’s brother tried to reach father by phone and Christine answered, reporting that she could not awaken father. Christine’s maternal grandmother and aunt who lived nearby were contacted by the brother, and they hurried over to the house to stay with Christine until mother returned home from work. At other times during which father had been drinking, friends and neighbors have stayed in the home with Christine until mother returned home from work. Mother also testified that Christine has witnessed father rip doors off their hinges and punch holes in the wall while he was drunk. Id. at 101-102.

Ms. Patricia Chewning, mother’s sister, was called to the stand and testified that she lives in Bristol, a five minute ride away from the parties’ home in Levittown. Ms. Chewning recalled that she had attended a Fourth of July picnic at father’s house a few weeks before the trial; everybody was drinking at the picnic. After most of the guests had left, Ms. Chewning and the few remaining guests discovered that father had drunk so much that he fell asleep on the back patio with the house wide open and could not be awakened. Christine was in a bedroom asleep. Ms. Chewning remained in the home until her friend finally managed to wake father up, at which point father ordered them out of his house. Ms. Chewning also testified that she has seen father fall asleep at the kitchen table on three or four other occasions after drinking, although mother was in the home those times. On cross-examination, Ms. Chewning described father’s relationship with Christine as “obsessive” in that father buys her anything she wants. She further stated that mother disciplines Christine, whereas father permits Christine to “get away with everything.” Id. at 145.

Mr. William M. Schulz, Christine’s godfather, testified that he grew up with mother and had been friends with father since mother and father started dating before their marriage. Mr. Schulz and his wife are very good friends with mother and father and the two families have vacationed and socialized extensively together. Mr. Schulz testified that over the years, he has witnessed father drink to the extent that father fell asleep on several occasions, he has seen father drinking in front of Christine “very often,” and has seen father drive after having some alcohol. Id. at 150. Mr. Schulz stated that father is a very caring father, but is excessive to the point where he dotes constantly on Christine and buys her expensive gifts. Mr. Schulz concurred in Ms. Chewning’s opinion that mother is the disciplinarian, whereas father is not. Id. at 151.

Mr. Schulz’ wife, Debra Schulz, testified at trial that she has seen father drink excessively at times in front of Christine, the last time being at Christine’s birthday party approximately six months before the hearing. On that occasion, father had gotten so obnoxious that several guests left. Mrs. Schulz also testified that she had personally witnessed father drinking while driving, and that Christine has been with him on those occasions. Id. at 159. Mrs. Schulz stated that she had met Sally Bell and Sally’s daughter whom she described as a polite, well-adjusted child.

Ms. Margaret Tomlinson, mother’s mother, testified that she had attended numerous social functions at the home of mother and father. Ms. Tomlinson described father as “[a]t times a heavy drinker.” Id. at 164. She stated that she had also seen father drink so much that he had fallen asleep, although mother was there on those occasions. Ms. Tomlinson related the same story that mother had told of the time when father’s brother had telephoned and Christine was unable to rouse father, so Ms. Tomlinson and her daughter went to the home to watch Christine until mother returned from work.

On rebuttal, father testified that he had never missed a day of work due to drunkenness or a hang-over. Although father admitted that he had drunk excessively at parties, he stated that he did not think he had a drinking problem, that he could go without drinking, and that if he got custody he would probably stop drinking altogether.

Mother challenges the trial court’s decision to award primary physical custody to father, arguing that the trial court’s findings are unsupported by the record. In entering the custody award, the trial court stated:

... I have concerns on both sides. I do think Father has some drinking problems on occasion.
However, I’m more concerned I think with Christine’s psychological well-being at this point. Her parents have just separated ... And I was extremely unimpressed, I must say, by Sally Bell. Not Sally Bell because per se of her lifestyle. This particular individual. And I’d like to emphasize that. Whatever her sexual preference would have been, if she were a man on the stand, I would have been concerned.
At this point, given my various concerns, I am going to opt for what I perceive as the status quo and basically keep the child in Levittown. ... The order I’m entering is specifically under the present circumstances that mother is living in Clark, New Jersey, with Sally Bell. If that changes in the future, that would specifically be considered.

Order of Court, July 30, 1990 at 2. The court then entered the custody order summarized above.

Mother claims that a remand is necessary because the trial court’s credibility determination relative to father’s drinking habits was unsupported by the record. We agree.

In its opinion in support of its order, the court stated that she found father’s testimony regarding his drinking more credible than mother’s testimony because mother testified that she does not drink alcoholic beverages at all. We have carefully reviewed the entire transcript of the hearing, line by line, and must conclude that the trial court’s characterization of mother’s testimony is erroneous. Mother was never questioned about her own drinking habits on either direct or cross-examination, and therefore never even testified as to the matter. In fact, mother’s own witnesses testified that mother was a light drinker. Thus, we conclude that the trial court grossly abused its discretion in concluding that father’s testimony was more worthy of belief.

We are also deeply troubled by the trial court’s utter failure to address the effect of father’s drinking on his ability to provide adequate care for Christine. In addition to mother’s testimony, father’s own friends testified that father was prone to drink intoxicating beverages to the point of getting verbally abusive or falling asleep. The trial court failed to address the issue, beyond duly noting that father “has some drinking problems on occasion.” We do not understand why the court did not perceive this as a significant factor in determining whether Christine’s interests would be best served by living primarily with mother or with father. Although much of the drinking took place in the company of friends in the context of social settings, there was uncontradicted testimony that the excessive drinking went on in the child’s presence and on at least two occasions father had passed out when he was the sole caretaker of Christine. Fortunately for the child, there was a strong support system of relatives and neighbors who were able to compensate for father’s failure to act in a manner appropriate to one charged with the care of a five-year old child. The fact that father has never missed work nor been arrested for drunken driving or some other alcohol-related behavior is not the determinative factor. In Commonwealth ex rel. McNamee v. Jackson, 183 Pa.Super. 522, 132 A.2d 396 (1957), this Court reversed an order awarding a father custody of his children where the testimony of four witnesses showed that the father drank excessively and was very intoxicated on numerous occasions. The Court stated:

The trial court may have been justified in finding that ‘the evidence does not indicate that he is an alcoholic/ but it was not justified in ignoring the overwhelming weight of the evidence establishing that he did drink intoxicating beverages to excess a number of times, including occasions when his children were present.

Id., 183 Pa.Superior Ct. at 528, 132 A.2d at 399. Similarly, given the testimony in this case, we find that the trial court abused its discretion in fashioning the custody award without due regard to father’s drinking habits. We therefore remand the case for a reconsideration of the custody order.

Mother further argues that the trial court erred in concluding that it would not be in Christine’s best interest to be around Sally Bell on a full-time basis. Initially, we note that the trial court did not rest its finding on the basis of mother’s lesbian relationship with Sally. The trial court properly recognized that under our caselaw, the burden is on the parent who is involved in a gay relationship to prove that there will be no adverse effect on the child if exposed to the relationship. Pascarella v. Pascarella, 355 Pa.Super. 5, 512 A.2d 715 (1986); Constant A. v. Paul C. A., 344 Pa.Super. 49, 496 A.2d 1 (1985). After hearing all of the evidence, the trial court held that in this case, mother’s lifestyle did not “create any impediment to the creation of a loving, caring environment” for Christine or render mother unfit for custody. Trial Court Opinion, February 1,1990 at 4. Instead, the court found that mother’s particular partner, Sally, would have a negative impact on Christine.

The court explained that she perceived Sally as hostile to father. This determination falls within the discretion of the trial court, as the trial court is in the unique position to evaluate the attitude and demeanor of the witness. We therefore will not disturb this finding.

The court also indicated that she believed that Sally had isolated mother from her family and friends because none of the friends or relatives who testified on mother’s behalf had visited mother in her new home. This latter finding does appear unreasonable insofar as mother and Sally had only been living in the new home for six weeks, the new home was an hour-long drive from the old neighborhood, and there is nothing in the record to support the conclusion that Sally created an environment in which these people felt unwelcome. In fact, Mrs. Schulz testified that she was aware of the nature of mother’s relationship with Sally; that she had met Sally occasionally at father’s home; that as Christine’s godmother, she was not at all concerned about Christine living in a household with Sally; that she had met Sally’s daughter and described her as intelligent, polite and well-adjusted; and that she believes that if Christine is brought up in the same environment, Christine will have no problem. Ms. Tomlinson testified that although she had not yet been to mother’s new home, she had seen mother and Christine every other week since the separation, as mother had stopped by her mother’s home with Christine for visits. Mr. Schulz testified that he had helped mother move out of the Levittown home; although he stated that he had not been to her new home since the move, he also stated that he had not been to father’s house since the separation. Id. at 148. Although the court’s conclusion that Sally has created an unwelcome environment is not supported by the testimony, a careful reading of the trial court opinion shows that this factor was but one of the many considerations which the court weighed in reaching its determination. We are convinced that this factor alone was not determinative of the court’s resolution of the custody question.

On remand, the trial court should make specific findings as to father’s drinking habits, his attitude thereto, and the resultant danger to the child, and order the appropriate intervention. The court should re-evaluate the custody order in view of its findings, and depending upon its conclusions, either alter or confirm the order.

Remanded for further proceedings. Jurisdiction relinquished.

      . This determination is reflected in the particulars of the custody order. Unlike the homosexual parents in Pascarella and Constant A., overnight visits with mother are permitted every other weekend, and mother has primary physical custody of Christine throughout the summer months.