author: OLSZEWSKI, Judge:

text:
    674 A.2d 281
    COMMONWEALTH of Pennsylvania v. Robert Eric HERMANSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted Nov. 27, 1995.
    Filed April 2, 1996.

      Frederick S. Wolf, Lebanon, for appellant.
    David P. Wingert, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
    Before WIEAND, TAMILIA and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

This appeal is from a judgment of sentence entered in the Court of Common Pleas of Lebanon County on May 25, 1995. We affirm.

On September 24, 1994, appellant Robert E. Hermanson was arrested and charged with driving under the influence of alcohol or controlled substances and driving in excess of maximum speed limits. The charges arose from an incident on the same date in which appellant was allegedly driving his vehicle at 56.8 miles per hour in a 35-mile-per-hour zone while intoxicated. Appellant pled guilty to these charges on April 20, 1995. Then, on May 17, 1995, appellant was sentenced to imprisonment of ninety days to two years less one day and a fine of $1,000 plus the costs of prosecution. Specific conditions of his future parole included ordering appellant to attend the Alcohol Safe Driving Program and to enter into a drug and alcohol rehabilitation program upon his release from prison. As a further condition, appellant could “not operate a motor vehicle prior to the expiration of his maximum sentence [, 2 years less one day,] for any reason whatsoever.” Order, 5/17/95 at 2. Appellant’s motion to modify sentence was denied. This timely appeal follows.

Appellant has already served and been released from his minimum sentence of ninety days in prison, and thus does not contest the validity of the imprisonment portion of his sentence. On appeal, appellant claims solely that the lower court abused its discretion in conditioning his parole by prohibiting him from operating a motor vehicle for the period of his maximum sentence. We disagree.

Appellant challenges the discretionary aspects of sentencing, not the legality of the sentence imposed. Accordingly, he is not entitled to an appeal of his sentence as of right, but rather to an allowance of appeal at the discretion of this Court. 42 Pa.C.S.A. § 9781(b). In such case, an appellant has two requirements which must be met before his challenge to the judgment of sentence will be heard on the merits. Commonwealth v. Koren, 435 Pa.Super. 499, 503, 646 A.2d 1205, 1207 (1994). First, the appellant must “set forth in his brief a concise statement of reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f); Koren, 435 Pa.Super. at 503, 646 A.2d at 1207; Commonwealth v. Jones, 418 Pa.Super. 93, 99-101, 613 A.2d 587, 590 (1992), alloc. denied, 535 Pa. 615, 629 A.2d 1377 (1993). Second, the appellant must demonstrate to this Court “that there is a substantial question that the sentence imposed is not appropriate under this [Sentencing] chapter.” 42 Pa.C.S.A. § 9781(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 513, 522 A.2d 17, 20 (1987); Koren, 435 Pa.Super. at 501-03, 646 A.2d at 1207.

In the instant case, appellant did not fulfil the first requirement as he failed to include in his brief a concise statement of the reasons for his appeal. Ordinarily, we would find appellant’s arguments regarding the discretionary aspects of sentencing to be waived, We graciously will review appellant’s arguments, however, as the Commonwealth has failed to object to this defect. Commonwealth v. Martin, 416 Pa.Super. 507, 515-17, 611 A.2d 731, 735 (1992). Next, we find that appellant has raised a “substantial question” because he alleges that his sentencing was inconsistent with specific provisions of the Sentencing Code, namely, 42 Pa.C.S.A. §§ 9755(d) and 9754(e)(13). Koren, 435 Pa.Super. at 503-05, 646 A.2d at 1208; Commonwealth v. Hlatky, 426 Pa.Super. 66, 81-83, 626 A.2d 575, 583 (1993), alloc. denied, 537 Pa. 663, 644 A.2d 1200 (1994).

We now turn to the merits of appellant’s challenge to the discretionary aspects of his sentencing. In such a case, our standard of review is very narrow. We “will reverse only where an appellant can demonstrate a manifest abuse of discretion on the part of the sentencing judge.” Koren, 435 Pa.Super. at 504, 646 A.2d at 1208; Hlatky, 426 Pa.Super. at 83-84, 626 A.2d at 584.

Appellant’s claim, that the trial court abused its discretion in conditioning his parole by prohibiting him from driving a motor vehicle until the expiration of his maximum sentence, is without merit. A sentencing court, in conditioning parole upon release from prison, may “include in its order such of the conditions as are enumerated in section 9754 ... as may be reasonably related to the sentence.” 42 Pa.C.S.A. § 9755(d). Since the specific condition of prohibition from driving is not expressly mentioned in the first part of section 9754, such condition is reviewed under that section’s “catch-all” provision allowing a court, as a condition of its order, to require a defendant:

(13) To satisfy any other conditions reasonably related to the rehabilitation of defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

42 Pa.C.S.A. § 9754(c)(13). Further, we have previously stated on the topic of parole conditions:

“The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence.” Morrissey [v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484, 492 (1972) ]. Parolees are in a position different from the general population because they are still subject to an extant term of imprisonment and are the focus of society’s rehabilitative efforts. Id.; Commonwealth v. Edwards, 400 Pa.Super. 197, 583 A.2d 445 (1990). Accordingly, parolees are subjected to certain conditions which restrict “their activities substantially beyond the ordinary restrictions imposed by law on private citizens.” Edwards at 201, 583 A.2d at 447. Although the offender’s freedom may be substantially restricted, the sentencing judge is vested with broad powers to fashion appropriate conditions of parole where they are intended to effectuate his rehabilitation and reintegration into society as a law-abiding citizen. Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990) (relating to probation).

Commonwealth v. Homoki, 423 Pa.Super. 320, 326, 621 A.2d 136, 140 (1993).

In the instant case, the trial judge sentenced appellant to a term of imprisonment combined with the specific parole condition, which prohibited driving for two years less one day, in order “to mend his ways,” ie., for rehabilitative purposes. Trial court opinion, 7/14/95 at 3. Appellant had two previous convictions for driving under the influence of alcohol in 1982 and 1987. In addition, he has had numerous other vehicle code violations in the past thirteen years, including several reckless driving violations. We agree that this condition of parole will aid in appellant’s rehabilitation by impressing upon him the importance of the absence of alcohol or other controlled substances in one’s body when driving an automobile on our highways. In upholding the constitutionality of 75 Pa.C.S.A. § 3731(a)(4), the statute under which appellant was sentenced, our Supreme Court stated that the purpose of the statute was “an attempt to halt, or at least to retard, the wanton and senseless slaughter and injury to innocent people upon our highways caused by drunk drivers.” Commonwealth v. Mikulan, 504 Pa. 244, 248, 470 A.2d 1339, 1341 (1983). Further, our brethren noted that in 1982, over 19,000 people were seriously injured and 800 people died in over 12,000 accidents related to alcohol. Id. Hence, the seriousness of such problem calls for parole conditions like those placed upon appellant to rehabilitate and protect them and to protect the citizenry of our fair Commonwealth.

Further, in Commonwealth v. Crosby, 390 Pa.Super. 140, 568 A.2d 233 (1990), we discussed approvingly a condition similar to the one placed upon appellant. In Crosby, the defendant was convicted of driving under the influence of alcohol and sentenced to a term of imprisonment to be followed by a period of probation. As a condition of probation, the sentencing court ordered that appellant’s truck, which was involved in the driving under the influence of alcohol incidents, be forfeited. We held that the forfeiture of the truck was not a permissible condition of probation since it did not constitute rehabilitation. Id. We did note, however, that

[t]he trial court had available to it, under § 9754, the means of effectively restricting the behavior by precluding him from driving during the probationary period, thereby in a more realistic manner assisting in the rehabilitation of the [defendant],

Crosby, 390 Pa.Super. at 145-46, 568 A.2d at 236. Therefore, we have recognized that a specific condition prohibiting driving for a period of time after a person has been convicted and served time in prison for driving under the influence of alcohol is “reasonably related to the rehabilitation of [a] defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.” See id.; 42 Pa.C.S.A. § 9754(c)(13). In addition, we have held parole conditions designed to prevent a defendant from harming himself or others, given a history of substance abuse, to be valid. See Homoki, supra (holding parole condition valid which prohibited defendant from taking additional medication for a preexisting condition where he had twenty-year history of heroin abuse). Consequently, we hold that the trial court did not abuse its discretion in ordering the specific parole condition which prohibits appellant from driving for the maximum sentence period, given his prior history of driving under the influence of alcohol violations. 42 Pa.C.S.A. §§ 9755(d), 9754(c); Homoki, supra; Koren, supra.

For the foregoing reasons, we affirm appellant’s judgment of sentence.

JUDGMENT OF SENTENCE AFFIRMED.

      . 75 Pa.C.S.A. § 3731(a)(1), (4), (5)(i).

      . 75 Pa.C.S.A. § 3362(a)(1).

      . Appellant’s blood was tested at a hospital within 3 hours of the operation of his automobile and found to have a blood-alcohol level of .129%.

      . Note that conditions of probation are examined under the same standards as conditions of parole. See 42 Pa.C.S.A. §§ 9755(d) and 9754.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    674 A.2d 284
    COMMONWEALTH of Pennsylvania v. Earl GILBERT, Appellant.
    Superior Court of Pennsylvania.
    Argued Nov. 29, 1995.
    Filed April 2, 1996.

      Lisa B. Harris, Cookeville, Tennessee, for appellant.
    James R. Gilmore, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
    Before DEL SOLE, BECK and JOHNSON, JJ.
   BECK, Judge:

The issue is whether the Commonwealth proved appellant’s intent to engage in disorderly conduct. We find that the Commonwealth has not produced sufficient facts to establish intent. We, therefore, vacate the judgment of sentence.

Appellant Earl Gilbert appeals his conviction for the summary offense of disorderly conduct. Gilbert was arrested and charged with disorderly conduct, making unreasonable noise, 18 Pa.C.S. § 5503(a)(2), when he openly disagreed with a police officer who intended to tow his neighbor’s car.

The record, viewed in the light most favorable to the Commonwealth, establishes that a police officer went to the home of appellant’s neighbor to tow the neighbor’s car. The neighbor did not want his car towed and according to the officer, a “ruckus” started. The officer then decided to go back to his own vehicle “to clear the scene.” As the officer headed back to his car, he saw appellant and his son standing on the sidewalk next to their house.

Appellant said nothing to the officer until the officer approached him. The officer stated he opened a dialogue with appellant to do some police department public relations work by explaining what the “ruckus” was all about. According to the officer, appellant expressed his opinion that the police should not tow his neighbor’s car, and that police resources should be used for other purposes. Appellant then yelled to his neighbor across the street that the police were wrong for trying to tow the car. Appellant was arrested because he refused three police requests to “quiet down.” The evidence does not reveal that appellant was especially loud, or that his remarks incited the neighbors or endangered the police. The record does not show that appellant was involved in the “ruckus” or that he interfered with the officer’s efforts to tow the car.

Appellant was charged and convicted under 18 Pa.C.S. § 5503(a)(2) which provides:

(a) offense defined. — A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: ...
(2) makes unreasonable noise.

The mens rea requirement of this statute demands proof that appellant by his actions intentionally or recklessly created a risk or caused a public inconvenience, annoyance or alarm. Commonwealth v. DeLuca, 528 Pa. 290, 597 A.2d 1121 (1991); Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54 (1980); Commonwealth v. Weiss, 340 Pa.Super. 427, 490 A.2d 853 (1985); Commonwealth v. Navarro, 251 Pa.Super. 125, 380 A.2d 409 (1977). No evidence was produced that appellant acted with the kind of culpable intent which the statute requires. Under the statute the Commonwealth must prove the intent of the actor.

The Commonwealth proved only that the arresting officer was annoyed by appellant’s expression of disagreement with the police’s intention to tow the car. Nothing in the record supports the inference that appellant acted “[w]ith intent to cause [or risk] a public inconvenience, annoyance or alarm.... ” See and compare Commonwealth v. DeLuca, 528 Pa. at 292, 597 A.2d at 1123 (appellant’s loud, abusive, and obscene language, coupled with his action of knocking away a police officer’s hands, supported disorderly conduct conviction where appellant’s conduct occurred in close proximity to an unruly crowd and near the focal point of a recent stabbing of a police officer). Intent cannot be inferred from the officer’s annoyance with appellant for disagreeing with him and for shouting his disagreement to his neighbor.

Although we decide this case based strictly on an interpretation of the intent element in the disorderly conduct statute, we note that in upholding the constitutionality of the disorderly conduct statute, our Supreme Court has made clear that the crime of disorderly conduct “may not be used to punish anyone exercising a protected First Amendment right.” Mastrangelo, supra at 261, 414 A.2d at 58. While not all speech is protected by the First Amendment, see, Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), appellant’s right as a citizen in a democracy to disagree with a police officer is not unprotected. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” City of Houston v. Hill, 482 U.S. 451, 462-463, 107 S.Ct. 2502, 2510, 96 L.Ed.2d 398 (1987).

In addition to failing to adduce evidence from which intent could be inferred, the Commonwealth failed to show that appellant’s conduct was unreasonably noisy under 18 Pa.C.S. § 5503(a)(2). See Model Penal Code and Commentaries § 250.2 commentary at 346 (Official Draft and Revised Comments 1980) (prohibition against unreasonable noise is directed at volume of speech not its content). Pennsylvania law defines unreasonable noise as “not fitting or proper in respect to the conventional standards of organized society or a legally constituted community.” Mastrangelo, supra at 261, 414 A.2d at 58; Commonwealth v. Greene, 410 Pa. Ill, 113, 189 A.2d 141, 143 (1963); Commonwealth v. Cowan, 399 Pa.Super. 477, 582 A.2d 879, 882 (1990); Commonwealth v. Alpha Epsilon Pi, 373 Pa.Super. 178, 540 A.2d 580, 583 (1988).

The record does not support an inference that the noise was such that it violated “the conventional standards of organized society or a legally constituted community.” It was not unreasonable, loud, boisterous, or unseemly. At most, the record reflects that appellant spoke to the officer and yelled across the street to his neighbor. The arresting officer testified that half the neighbors eventually came out to the street to view the “ruckus.” However, no evidence was produced that that the level of noise was inconsistent with neighborhood tolerance or standards. See and compare, Alpha Epsilon Pi, supra at 183-86, 540 A.2d at 583-584 (late night music from fraternity house was unreasonably noisy where fraternity sound system could be heard in residential neighborhood a block away); Commonwealth v. Koch, 288 Pa.Super. 290, 431 A.2d 1052 (1981) (continuous dog barking in rural community does not support disorderly conduct charge). See also: Weiss, supra at 432-34, 490 A.2d at 856 (even vulgar language intended to insult police does not become a crime because people standing nearby stop, look and listen).

In reversing appellant’s conviction for disorderly conduct we emphasize that the disorderly conduct statute must not be used as a catchall or dragnet for the prosecution of conduct that is uncivil, annoying or irritating. Id. Accord, Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161 (1990).

Accordingly, we find that the Commonwealth failed to sustain its burden of proof on the disorderly conduct offense. We therefore vacate the judgment of sentence.

      . The officer testified that police had earlier received a call concerning an assault by four men that had occurred a few blocks away. The officer stated that an unidentified witness gave information that the vehicle was registered to someone who lived on appellant’s street. Police talked to the owner of the vehicle, who knew nothing about the assault. The police nonetheless intended to tow the vehicle.

      . Although under prior law an individual who had no intent to disrupt could be prosecuted because his speech provoked others to unruly behavior, under the current statute the focus is on the actor’s intent. See Mastrangelo, supra at 259-61, 414 A.2d at 57; Commonwealth v. Young, 370 Pa.Super. 42, 535 A.2d 1141, 1144 n. 1 (1988) (Beck, J., dissenting). See Model Penal Code and Commentaries § 250.2 commentary at 348 (in every version of the disorderly conduct provision, "the Model Code requires that the actor initiate the disturbance rather than merely provide an occasion for disorder by others.”)

      . The trial court appeared to be impatient with appellant’s assertion of his constitutional claims. The trial court expressed its reluctance to elevate appellant’s "conversation” with the arresting officer "into a Daniel Webster argument in the Dartmouth College case.” See Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819).


text:
    674 A.2d 287
    COMMONWEALTH of Pennsylvania v. Charles OLIVER, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed April 3, 1996.

      Thomas J. Nolan, Scranton, for appellant.
    William P. O’Malley, Assistant District Attorney, Scranton, on oral argument; Eugene M. Talerico, Jr., Assistant District Attorney, Scranton; Andrew J. Jarbola, III, First Assistant District Attorney, Scranton on briefs for the Commonwealth, appellee.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On the frigid afternoon of February 16, 1986, the lifeless body of Edward “Ned” Tracy was discovered laying amongst scattered debris on the floor of a dilapidated shed in Lackawanna County. The shed was a concrete structure with large wooden doors. The roof was partially collapsed and there was no glass in the window frames. Blood covered the walls.

The large doors stood partially open and several sets of footprints were visible in the snow. Tracy lay on his back, his face and hands frozen in blood. While the body’s frozen state prohibited an autopsy from being immediately performed, it was ultimately determined that Tracy had been bludgeoned to death.

Charles Montione, Frank Montione, and appellant Charles Oliver were subsequently arrested and charged in connection with Tracy’s murder. Oliver, who had a separate jury trial, was ultimately convicted of first-degree murder and criminal conspiracy. On January 26, 1995, The Honorable James M. Munley sentenced Oliver to life imprisonment. On appeal, Oliver raises a host of issues for our review. None have merit.

Oliver initially claims that he was not brought to trial within the mandates of Pa.R.Crim.P. 1100. Rule 1100 provides, in pertinent part, that

(a)(2) Trial in a court case in which a written complaint is filed against the defendant where the defendant is incarcerated on that case, shall commence no later than 180 days from the date on which the complaint is filed.
sf: # Hí *
(e) No defendant shall be held in pre-trial incarceration on a given case for a period exceeding 180 days excluding time described in subsection (c) above. Any defendant held in excess of 180 days is entitled upon petition to immediate release on nominal bail.
* * * * * *
(g) For defendants on bail after the expiration of the 365 days, at any time before trial, the defendant or the defendant’s attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a certain date.... If, at any time, it is determined that the Commonwealth did not exercise due diligence, the court shall dismiss the charges and discharge the defendant.

Additionally, we note that Rule 1100 is tolled during any period of delay which has resulted from “the unavailability of the defendant or the defendant’s attorney” and “any continuance granted at the request of the defendant or his attorney.” Pa.R.Crim.P. 1100(c). Included among such delays is the time between a defendant’s filing pre-trial motions and the trial court’s dispensing of such motions. Commonwealth v. Riffert, 379 Pa.Super. 1, 549 A.2d 566 (1988), alloc. denied, 522 Pa. 602, 562 A.2d 825 (1989); Commonwealth v. Chilcote, 396 Pa.Super. 106, 578 A.2d 429 (1990), alloc. denied, 527 Pa. 615, 590 A.2d 756 (1991). See also Commonwealth v. Montione, 449 Pa.Super. 239, 673 A.2d 923 (1996).

Instantly, the clock started to run on August 13,1993, when the Commonwealth filed a written complaint against Oliver. It was tolled, however, on numerous occasions. From August 16, 1993 to August 26, 1993, Oliver contested extradition from New Jersey to Pennsylvania (10 days excluded). From September 3,1993 to October 8,1993, Oliver’s preliminary hearing was continued at his request (35 days excluded). On December 13, 1993, Oliver filed pre-trial motions which were not ■decided until January 28, 1994 (46 days excluded). On March 24, 1994, a hearing pertaining to the Commonwealth’s motion to consolidate Oliver’s case with those of Frank and Charles Montione was continued, at Oliver’s request, until April 28, 1994 (35 days excluded). On June 13, 1994, Oliver filed additional pre-trial motions which were decided on July 5, 1994 (22 days excluded). Oliver filed a motion to dismiss pursuant to Rule 1100 on November 30, 1994, and said motion was denied on December 30, 1994 (30 days excluded). Oliver’s jury trial finally commenced on January 17, 1995. Thus, a total of 343 untolled days had passed before Oliver was brought to trial. The Commonwealth concedes that Oliver was incarcerated during this entire period.

Rule 1100(a)(2) requires the Commonwealth to prosecute a case within 180 days of the complaint when the defendant is incarcerated. Moreover, this provision has been applied to defendants, like Oliver, charged with capital offenses. See Commonwealth v. Wilson, 543 Pa. 429, 672 A.2d 293 (1996); Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176 (1993). As such, we find that Rule 1100(a)(2) was clearly violated in the instant case. Our question thus becomes: to what relief, if any, is a defendant, who is charged with a capital offense, entitled for a violation of Rule 1100(a)(2). This is an issue of first impression in our Commonwealth.

Oliver invites us to find that Rule 1100(e) applies equally to defendants charged with capital and non-capital offenses. We decline this invitation. Rule 1100(e) states that any defendant held in pre-trial incarceration in excess of 180 days is entitled upon petition to immediate release on nominal bail. Under our State’s Constitution, however, bail is not available to certain defendants charged with capital offenses. Pa. Const. art. 1 § 14. See Commonwealth v. Martorano, 535 Pa. 178, 186, 634 A.2d 1063, 1066 (1993) (“the framers of our constitution recognized the virtual certainty of flight in face of a possible death penalty”). Further, “[i]t is well settled that the particular terms of Rule 1100 ‘are neither directly granted by nor required by the Constitution.’ ” Commonwealth v. Sadler, 301 Pa.Super. 228, 232, 447 A.2d 625, 627 (1982) (quoting Commonwealth v. Myrick, 468 Pa. 155, 161, 360 A.2d 598, 600 (1976)). Thus, to the extent that Rule 1100(e) is in conflict with our state constitution concerning defendants charged with capital offenses, we find that Rule 1100(e) must give way.

The defendant in Spence, supra, claimed that the remedy in such a case should be dismissal of the charges, pursuant to Rule 1100(g). We do not agree. Rule 1100, as written, only provides for dismissal of charges in cases where the defendant has not been brought to trial within 365 days. No such remedy is prescribed for defendants incarcerated past 180 days. Moreover, our Supreme Court has recently stated that

the only situation under Rule 1100 which provides for dismissal of the charges is where a defendant on bail is not brought to trial within 365 days of the date on which the complaint against him is filed.... Rule 1100(g) does not provide a remedy for violation of Rule 1100(a)(2).... Because Appellant. was brought to trial within 365 days, Appellant was not entitled to have the charges against him dismissed.

Commonwealth v. Abdullah, 539 Pa. 351, 354-55, 652 A.2d 811, 813 (1995). See also Commonwealth v. Thomas, 394 Pa.Super. 316, 575 A.2d 921 (1990); Commonwealth v. Shaffer, 387 Pa.Super. 234, 563 A.2d 1270 (1989).

Thus, in light of the plain strictures of Rule 1100, we find that a defendant who has been charged with a capital offense, as prescribed by Article 1, Section 14 of the Pennsylvania Constitution, is entitled to neither dismissal of charges nor nominal bail. The only remaining remedy, that is consistent with both Rule 1100 and our State’s Constitution, would be to allow the defendant to petition the trial court for an immediate trial. In the instant case, Oliver failed to file such a petition. Accordingly, Oliver’s first contention fails.

Oliver next alleges that Judge Munley erred in allowing into evidence a pipe which was recovered by the police in November of 1994. Oliver claims that the eight-year lapse, between the time of the murder and the actual discovery of the pipe, rendered this evidence irrelevant and overly prejudicial. We disagree. There is no requirement that the item sought to be introduced into evidence is the actual weapon used in the attack. Commonwealth v. Brown, 467 Pa. 512, 520, 359 A.2d 393, 397 (1976). The only burden is to justify, from the circumstances of the finding, “an inference of the likelihood of its having been used.” Id. (citations omitted).

Presently, the Commonwealth offered an abundance of evidence to establish that the pipe which was recovered by the police was the actual murder weapon. Frank Montione testified that as he picked Oliver up, on the night of the murder, Oliver emerged from his house carrying a silver pipe, about one inch in diameter and one foot in length. N.T. 1/20/95 at 24-25. Oliver explained to Montione that he had access to the pipe because his father was a plumber. Id. at 25-26. Montione then picked up Tracy and drove the three men to a forested area. As the men exited the car, Montione noticed that Oliver was carrying the pipe. Id. at 36. After walking for a few minutes, the three men came upon a shed and entered. Id. at 35. Uneasy, Montione exited the shed, leaving Oliver alone with the victim. Id. at 36-37. Montione heard a “crack.” Id. at 38. After a few moments, he heard another striking sound. Id. Eventually, Oliver emerged from the shed with the pipe in his right hand. Id. at 39-40. Montione asked, “[Did] you do it?” Id. at 40. Oliver “nodded his head yes.” Id. Oliver and Montione then returned to the car and drove a “short distance.” Id. at 40-41. After Montione pulled the vehicle over on the right hand side of the road, Oliver “opened the door and tossed [the pipe] out.” Id.

Trooper Thomas E. Pavlick, of the Pennsylvania State Police, testified that, after Montione’s arrest in the fall of 1993, Montione described how Oliver had disposed of the pipe and accompanied the police to the “approximate area of where the pipe had been thrown from the vehicle.” N.T. 1/23/95 at 179. Subsequently, the police searched the area and found a piece of pipe which was consistent with Montione’s description. The pipe was discovered two-tenths of a mile from the murder scene, located “30 feet off the [right hand side of the] road and 16 feet into the woods.” Id. at 180.

Moreover, Dr. Isadore Mihalakis testified that the recovered pipe was consistent with the wounds inflicted upon Tracy. N.T. 1/19/95 at 105. Dr. Mihalakis explained the basis of this determination as follows:

[F]irst of all, [the pipe has] an abraded, at least, a non-smooth surface, and we have an abrasion of the margins of the wound. Second, I said [the murder weapon] was rounded. [The recovered pipe] is rounded. Third, I said the instrument had to have had at least one to one and a half inch area of contact. [The recovered pipe,] when I measured it at an earlier time[,] ... has one and a quarter inch diameter.

Id.

In light this evidence, we find that the Commonwealth clearly established an “inference of the likelihood” that the recovered pipe was used by Oliver in murdering Tracy.

Oliver makes much of the eight-year lapse between the time of the murder and the pipe’s recovery. We acknowledge that our research has failed to uncover a Pennsylvania case in which a weapon discovered after a longer period of time was held to be properly admitted into evidence. Remoteness, however, “generally goes to the weight to accorded the evidence, rather than its admissibility.” Commonwealth v. Davenport, 462 Pa. 543, 556, 342 A.2d 67, 73 (1975). See also Commonwealth v. Ross, 266 Pa. 580, 110 A. 327 (1920); Commonwealth v. Kinnard, 230 Pa.Super. 134, 142-44, 326 A.2d 541, 545 (1974); Commonwealth v. Manns, 229 Pa.Super. 21, 323 A.2d 262 (1974). Moreover, “[a]bsent an abuse of discretion on the part of the trial judge, his determination that evidence was not too remote in time to be admissible will not be overturned.” Kinnard, 230 Pa.Super. at 142, 326 A.2d at 545.

Instantly, the pipe was discovered in “a wooded area,” located a short distance from the lawn of a warehouse. N.T. 1/23/95 at 180. Moreover, even the police who searched the area were forced to take precautions, as they were leery of “snakes, bees, [and] things of that nature.” Id. at 194. Thus, it appears that the area was effectively inaccessible, and the pipe would naturally go undisturbed for a number of years. As such, we find that Judge Munley did not abuse his discretion in admitting the pipe into evidence. Davenport, supra; Ross, supra.

Oliver next alleges that Commonwealth’s closing argument contained overly prejudicial statements, thus necessitating a mistrial. First, Oliver directs our attention to the following prosecutorial remark:

And [defense counsel] wants to say that well, geez, we didn’t hear from these people, these people, these people. He has every right to subpoena them if he thinks they’re going to say something different. He can do that.

N.T. 1/25/95 at 105.

Oliver claims that this remark improperly placed the upon him the burden to prove his innocence. The record reveals, however, that upon sustaining defense counsel’s objection to the above comment, Judge Munley issued the following curative instruction:

Members of the jury, I sustained the objection, and I’m standing up here because I can’t see some of the jurors with the board. I’ve sustained the objection. There’s no burden on the defendant to produce any evidence in his own case. Can every juror follow my instruction?

Id. at 106.

We find that any prejudice that may have been created by the prosecutor’s comment was sufficiently eliminated by Judge Munley’s curative instruction. See Commonwealth v. Young, 524 Pa. 373, 394, 572 A.2d 1217, 1227-28 (1990) (“these cautionary statements more than sufficiently untarnished the possible prejudice of the opinion of the prosecutor.”). In light of Judge Munley’s instruction, we find that Commonwealth’s remark clearly did not have the unavoidable effect of creating in the jurors’ “minds a fixed bias and hostility toward appellant, so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Johnson, 516 Pa. 527, 533, 533 A.2d 994, 997 (1987) (citation omitted).

Oliver also alleges that the Commonwealth’s closing argument exceeded the bounds of propriety with the following remarks:

Ladies and gentlemen, these people came in and told you, as I said in my opening, pieces of the puzzle. A piece here, a piece here, another piece here, and you put it together. And I submit to you when you do that the puzzle paints a clear picture, Chuck Oliver is a killer, the one who brutally, viciously murdered Ned Tracy.

N.T. 1/25/95 at 118-19.

We find, however, that these remarks “merely summarized the evidence presented at trial with the oratorical flair permitted during argument.” Commonwealth v. Chester, 526 Pa. 578, 600, 587 A.2d 1367, 1378 (1991). As such, we cannot say that Oliver was overly prejudiced so as to have required a mistrial. See id.

In his final claim, Oliver alleges that the Commonwealth presented insufficient evidence at trial to warrant his conviction. In reviewing the evidence in the light most favorable to the Commonwealth, we find that this contention is meritless. Testimony at trial, particularly that of Frank Montione, established overwhelmingly that the Commonwealth had proved every element of the charged offenses beyond a reasonable doubt. As such, Oliver’s final contention must join his others in failure.

Judgment of sentence affirmed.

      . In Spence, our Supreme Court never addressed whether discharge was an appropriate remedy, as it found that the prosecution’s due diligence excused the fact that the defendant was not brought to trial within the prescribed time period. We find no such diligence in the instant case.

      . We note that, even if Oliver had petitioned for immediate trial, he would be entitled to no relief at this time. See Abdullah, supra (improper denial of non capital defendant’s request for nominal bail could not be remedied on appeal post-trial).


author: SAYLOR, Judge:

text:
    674 A.2d 293
    In re the C. Robert AUSTIN TRUST PNC Bank National Association and Chester K. Reichert, Trustees (Two Cases). Appeal of Charlotte S. AUSTIN.
    Superior Court of Pennsylvania.
    Argued Feb. 28, 1996.
    Filed April 4, 1996.

      Daniel J. Pastore, Erie, for appellant.
    Mark A. Pacella, Assistant Attorney General, Pittsburgh, for Charitable Trusts & Organization Section Western Regional Office, participating party..

      Before CIRILLO, President Judge Emeritus, and SAYLOR and EAKIN, JJ.
   SAYLOR, Judge:

The fundamental issue in these consolidated appeals is whether the Court of Common Pleas of Erie County acted within its authority when, on August 1, 1995, it corrected its order of January 25, 1995, to conform to the opinion that had accompanied the earlier order. Finding that the court possessed the authority to act as it did, we affirm.

The matter before the court involved objections filed by Charlotte S. Austin (“Appellant”) and by the Commonwealth of Pennsylvania (“the Commonwealth”) to the First and Partial Account and the Audit Statement of the trustees of the C. Robert Austin Trust (“the Trust”). Appellant is the income beneficiary of the Trust, which had been established by her late husband, C. Robert Austin (“Settlor”). At issue here is Appellant’s Objection No. 3, which the trial court addressed as follows in its opinion of January 25, 1995:

Objection 3 of [Appellant] — itself contested by [the Commonwealth] — challenges the charging of trustee fees to income rather than dividing those fees between principal and income.... [Appellant] contends that the language of the trust document and its amendment which limits the compensation of the trustees to no more than ten percent “of the annual net income of the trust” should be viewed as a limitation on the amount and not as a specification regarding the source of the fees. We cannot agree.
Had [Settlor] intended the meaning suggested, he could have specified the source of the payment or ... could have utilized [specific language to that effect]. We view the language of the provisions executed by [Settlor] to be specific in mandating that the fees shall be paid from the net income and, at least as to fees incurred to date, that direction will be followed by the court.

After considering the question of prospective fees, the court concluded that they, too, “shall be charged to income absent an agreement by [Appellant], the remaindermen!,] and [the Commonwealth] that an allocation of those fees between principal and income should occur.”

Although the trial court effectively dismissed Appellant’s Objection No. 3 in its opinion, the order accompanying the opinion stated in pertinent part as follows:

January 25, 1995: For the reasons stated in the accompanying Opinion, the Objections of [Appellant] and [the Commonwealth] to the First and Partial Account filed August 10, 1994 and the Audit Statement filed September 12, 1994 are disposed of as follows:
Objection 3 is sustained....

Neither Appellant nor the Commonwealth took any action concerning the discrepancy between the opinion and the order. In fact, it appears from the record that the discrepancy went unnoticed, at least by Appellant. In a letter to the trustees’ counsel dated February 17, 1995, counsel for Appellant observed that

[s]ince the time for filing Exceptions has expired, and the trustees have not objected to my Affidavit of Fees ..., I think it is now time to have the trustees prepare a Second and Final Account.
The only real issue remaining[,] then, is to determine the maximum trustee fee permitted. I have enclosed my Fee Limitation Analysis which was previously submitted to you and to the court. Since the court has concluded that all trustee fees must be charged to income, and that trustee fees must be deducted in determining net income, then based upon the enclosed analysis, trustee fees cannot exceed 9.0909% of the net income before trustee fees....

(Emphasis added.)

In June of 1995, as the final Account was being audited, the trial court learned of the discrepancy. After informing counsel of its intention to enter a corrective order, the court scheduled argument on the matter. At argument, counsel for Appellant argued that the trial court lacked the authority to modify the earlier order with regard to Objection No. 3 and, in addition, that there was a conflict between the order of January 25, 1995 and the accompanying opinion as to Appellant’s Objection No. 5, which concerned the appointment of Integra Trust Company as successor trustee. On July 24, 1995, the trial court entered a decree nisi which read in pertinent part as follows:

1. [Appellant’s] Objection No. 3 is dismissed.
2. [Appellant’s] Objection No. 5 remains sustained regarding the appointment of Integra but that appointment and future trustee fees are limited by the conditions of the trust, our January 25, 1995 Opinion and Order and the present Opinion and Order.

Appellant filed exceptions to the decree nisi, as did the trustees. On August 1, 1995, the trial court entered an order denying Appellant’s exceptions and making final the decree nisi. Appellant has filed an appeal from this order at No. 1654 Pittsburgh 1995. On September 13, 1995, the trial court entered an order dismissing the trustees’ exceptions and, again, stating that the decree nisi of July 24, 1995 was made final. Appellant has filed an appeal from this order at No. 1768 Pittsburgh 1995. The appeals have been consolidated, and the parties have briefed and argued them as if they were a single appeal.

Appellant argues that where there is an inconsistency between an order and an accompanying opinion, it is the order which controls. According to Appellant, because the order of January 25, 1995 sustained her Objection No. 3, she had no reason to challenge the order. The Commonwealth did have such a reason, Appellant asserts, but waived any challenge by failing to request reconsideration of the order within 30 days. Therefore, Appellant argues, under 42 Pa.C.S.A. § 5505, the trial court lacked the authority to modify its original order more than 30 days after entry of the order. Section 5505 reads as follows:

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

While acknowledging that the courts have created an “extraordinary cause” exception to the general rule, Appellant contends that no such extraordinary cause has been shown to exist in the present case. Alternatively, Appellant argues that even if the trial court possessed the authority to modify its order of January 25, 1995, it erred in doing so because Appellant’s Objection No. 3 should in fact have been sustained.

First, we consider Appellant’s claim that the responsibility for challenging the order of January 25, 1995, lay with the Commonwealth as the aggrieved party. As made clear by Appellant’s counsel’s letter of February 17, 1995, quoted supra, Appellant understood that the trial court had ruled against her with regard to the source of the trustee fees: “[T]he court has concluded that all trustee fees must be charged to income[.]” It was therefore Appellant, not the Commonwealth, who was aggrieved by the trial court’s ruling. Appellant’s assertion to the contrary — that the order controls the opinion, and “[accordingly, since the [trial] court’s January 25, 1995 order unambiguously sustained [her] objections, she was not aggrieved” — is specious. Appellant will not be heard to argue that the Commonwealth’s reading of the opinion and order of January 25, 1995 should have been more careful than her own.

Turning to Appellant’s claim that the trial court lacked the authority to clarify its earlier order when it did, we find that the claim is meritless. The 30-day limitation of section 5505, upon which Appellant relies, applies only to final, appeal-able orders. Key Automotive Equipment Specialists, Inc. v. Abemethy, 431 Pa.Super. 358, 636 A.2d 1126 (1994); Commonwealth v. Nicodemus, 431 Pa.Super. 342, 636 A.2d 1118 (1993); Hutchison by Hutchison v. Luddy, 417 Pa.Super. 93, 611 A.2d 1280 (1992), appeal granted, 533 Pa. 660, 625 A.2d 1193 (1993), appeal dismissed, 538 Pa. 484, 649 A.2d 435 (1994); Daywalt v. Montgomery Hospital, 393 Pa.Super. 118, 573 A.2d 1116 (1990). Thus, despite the passage of more than 30 days, trial courts have been permitted to reconsider an order denying preliminary objections, Key, supra; an order granting pretrial motions to dismiss criminal charges, where the Commonwealth had never been given notice of the motions, Nicodemus, supra; a pre-trial order directing that the record remain sealed until further order court or until the commencement of trial, Hutchison, supra; and an order denying a motion for summary judgment, Daywalt, supra.

Generally a final order is one which ends the litigation or disposes of the entire case. Nicodemus, supra. See also, Pa.R.A.P. 341(b)(1) (final order disposes of all claims or of all parties). The trial court’s order of January 25, 1995, did not do this. To the contrary, the order itself, by directing the trustees to “file a Second and Final Account and Audit Statement pursuant to the provisions of this Order and accompanying Opinion[,]” makes clear that the litigation has not been concluded. As the trial court noted in the opinion accompanying its order of July 24, 1995,

the trustee’s account is still on audit and no decree of distribution has been issued. None of the parties have changed their position in reliance on the Court’s mis-stated Order; no distribution of the estate has been made; the new trustee has not assumed its duties; and no party would be prejudiced by the correction of the Order at this stage.

Therefore, because the order of January 25, 1995, was not final, the trial court retained the authority to correct it.

Moreover, a court possesses “the inherent power ... to correct obvious and patent mistakes in its orders, judgments, and decrees.” Commonwealth v. Cole, 437 Pa. 288, 293, 263 A.2d 339, 341 (1970). In Cole, the trial court entered an order on March 3, 1969, which stated that “defendant’s motion for a new trial and arrest of judgment is granted.” Id., 437 Pa. at 290, 263 A.2d at 340. On June 18, 1969, three and one-half months later, the court modified the order so that it read “defendant’s motion for new trial is granted; motion in arrest of judgment is dismissed.” Id. The Superior Court, reasoning as follows, held that it was within the trial court’s power to do so.

In the instant case, the order of March 3 was patently erroneous. The grant of a new trial and the grant of the motion in arrest of judgment were so clearly antagonistic that even the most casual reading of the order would disclose the irreconcilable nature thereof. To grant a new trial and a motion in arrest of judgment simultaneously was contrary to common sense.... What the court did was simply to correct, by its order of June 18, a mistake which was plain on the face of the order and make the order of March 3 speak the truth.

Id., 437 Pa. at 292, 263 A.2d at 341 (emphasis in original).

Appellant attempts to distinguish Cole by noting that in that case there was an inconsistency within the order itself, whereas in the present case there was an inconsistency between the order and the opinion that accompanied it. Given the facts of the present case, however, such a distinction is meaningless. As noted earlier, the order of January 25, 1995 read in pertinent part as follows: “For the reasons stated in the accompanying Opinion, ... Objection 3 is sustained.... ” Thus, the order specifically incorporated by reference the reasons contained in the accompanying opinion. The court’s ruling on Objection No. 3 and the reasons for that ruling were, as the Supreme Court said of the post-verdict ruling in Cole, “so clearly antagonistic that even the most casual reading of the order would disclose the irreconcilable nature thereof.” Accordingly, the trial court properly corrected the order.

Appellant contends that the decision of the Commonwealth Court in Municipal Council of the Municipality of Monroeville v. Kluko, 102 Pa.Commw. 49, 517 A.2d 223 (1986), holds otherwise. The issue in Kluko was

whether a trial court which has entered an order which specifically directs a party to pay its own counsel fees and costs, may, after the appeal period has expired, enter a new order pursuant to a new petition which order directs the opposing party to pay the counsel fees and costs.

Id., 102 Pa.Commw. at 52, 517 A.2d at 224. The Commonwealth Court held that 42 Pa.C.S.A. § 5505 barred the trial court from doing so, regardless of whether, as the appellees maintained, the portion of the first order which concerned counsel fees had been entered by mistake.

In the present case, the trial court did not reverse its initial order. Rather, the trial court corrected an error which, given the reference in the order to the reasons stated in the accompanying opinion, was apparent on the face of the order. Therefore, even if a decision of the Commonwealth Court were binding upon this Court, which it is not, Kluko would not require a different result. In sum, we conclude that the trial court possessed the authority to enter its order of August 1, 1995, correcting its order of January 25,1995.

Order affirmed.

      . Appellant contends that we cannot consider this letter because it does not appear in the certified record. Appellant is mistaken; a copy of the letter is attached as Exhibit B to a brief filed in the trial court by the Commonwealth on July 10, 1995, which brief is included in the certified record.

      . In her Objection No. 5, Appellant had argued that if the trial court accepted the resignations of the existing individual and corporate trustees, the court then needed to appoint only a corporate trustee, for which position Appellant nominated Integra Bank. As the trial couit explained in its opinion of July 24, 1995,
      Attached to [Appellant’s] objections was a fee schedule from Integra proposing future trustee fees in excess of the 10% limitation and providing for an equal allocation of those fees between principal and income.
      In the order of January 25th, this objection was sustained.... [Appellant] now asserts that the Court and the beneficiaries are bound by the fee schedule proposed by Integra because the Order sustained that objection without disallowing the proposed fee schedule .... [W]e cannot agree with this contention.

      . For the same reason, we decline to address Appellant’s claim that even if the trial court possessed the authority on August 1, 1995 to correct its earlier order, it erred in doing so.


author: WIEAND, Judge:

text:
    674 A.2d 297
    EMPIRE PROPERTIES, INC., Appellee, v. EQUIREAL, INC., Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1995.
    Filed April 4, 1996.

      Walter Weir, Jr., Philadelphia, for appellant.
    David A. Scotti, Pittsburgh, for appellee.
    Before WIEAND, DEL SOLE and CERCONE, JJ.
   WIEAND, Judge:

This action was brought by a disappointed purchaser of real property who alleged that the vendor had breached a written agreement of sale, which had been orally modified to extend the date of performance, by repudiating the agreement and selling the land to another buyer. The purchaser, Empire Properties, Inc., filed suit against the vendor, Equireal, Inc., in which Empire alleged that Equireal’s breach of the contract entitled it to recover damages for loss of its deposits, preclosing expenses and lost profits. Following a jury trial, a verdict was returned in favor of Empire in the amount of $250,000.00 for the loss of its deposits, plus $16,028.15 in preclosing expenses. No damages were awarded for lost profits. The verdict was then molded by the trial court to reflect the award of pre-judgment interest at the rate of 6% per annum. Post-trial motions were filed by Equireal, and were denied by the trial court on January 5, 1995. Thereafter, judgment was entered on the verdict and Equireal filed the present appeal. On appeal, Equireal asserts that: (1) an alleged oral modification of a written agreement for the sale of land, which purports to extend the time of performance, is unenforceable under'the Statute of Frauds; (2) such an oral modification of a written contract is unenforceable absent valid consideration; (3) in the absence of proof by Empire that Equireal waived provisions in the contract making time of the essence and prohibiting oral modification, Equireal was entitled to judgment notwithstanding the verdict; and (4) the trial court erred in instructing the jury regarding Empire’s burden of proving the existence of an oral modification of the written agreement and its entitlement to recover damages resulting from Equireal’s alleged breach of the agreement. We will consider these claims seriatim.

On June 3, 1991, appellant and Empire entered into a written contract by which appellant agreed to sell and Empire agreed to buy a one hundred and forty-one (141) acre tract of land in Franklin Park, Pittsburgh, Pennsylvania, which was known as the Schneider Farm. Pursuant to this contract, the purchase price of the Schneider Farm was to be $2,500,000.00, of which Empire was required to pay a deposit of $100,000.00, and which was contingent upon Empire closing the deal on June 28, 1991. However, the contract provided that Empire could exercise an option to extend the closing date to September 30, 1991, by making an additional deposit of $150,000.00. If the later closing option were exercised, the purchase price would be increased to $2,700,000.00.

The agreement of sale included three provisions which are the subject of the instant appeal. First, the agreement contained a clause which provided that “time is of the essence”. Secondly, there was a “no oral modifications” clause, which prohibited any modifications to the contract which were not in writing and signed by the party to be charged. Finally, the agreement had a liquidated damages clause, which provided for the forfeiture of all deposits paid by Empire in the event that Empire failed to close within the time provided in the contract.

On June 28, 1991, appellant was unable to close due to problems relating to encumbrances upon its title to the Schneider Farm. Shortly thereafter, Lawyers Title Insurance Company issued a commitment, with certain exceptions noted, to insure the quality of appellant’s title. Meanwhile, Charles O’Hanlon, a senior vice president at Equireal, and Frank Pelly, one of Empire’s principals, negotiated an oral agreement to extend the settlement date to July 12, 1991, without penalty, in order to provide Empire with an opportunity to investigate a number of gas leases and utility easements appearing as encumbrances against the property and to determine how these encumbrances might effect Empire’s ability to develop the property. Later, the substance of the oral agreement was memorialized in letter agreements drafted by appellant on July 3 and July 12, 1991. Subsequently, Empire exercised its option to extend the time of closing until September 30, 1991. Accordingly, Empire paid to appellant an additional deposit of $150,000.00 to secure the extension and the purchase price rose to $2,700,000.00.

According to Empire’s evidence, Pelly contacted O’Hanlon on or about September 1,1991, and informed him that Empire was going to need additional time to put favorable financing in place. Pelly testified that O’Hanlon asked him to determine exactly how much extra time would be required. On or about September 15, 1991, Pelly phoned O’Hanlon and requested a 30 day extension of the settlement date. This call was allegedly placed during a meeting with other principals of Empire. Pelly testified that O’Hanlon asked if Empire could close in a shorter period of time and Pelly responded in the negative. According to Pelly, he said, “[y]ou better grant me the 30 days” to which O’Hanlon replied, “Okay, I will give you the 30 days extension.” Empire’s vice president, Alex Efremenko, who was present at the meeting, testified that he heard Pelly ask for an extension of time. Although Efremenko did not hear O’Hanlon’s response, after the phone call, Efremenko learned that Empire was now working on an end of October closing date. Virginia Pelly, the wife of Frank Pelly, testified that at a meeting, which occurred after appellant had terminated the sale, O’Hanlon responded “yes, yes” when Frank Pelly said, “you agreed to give me an extension.” In contrast, O’Hanlon testified that he had never agreed to or admitted an extension of the closing date.

According to appellant, it had stood ready to perform its obligations and Empire had defaulted on the agreement by failing to appear for closing on September 30,1991. Appellant did not dispute that O’Hanlon and Pelly had had a telephone conversation in which Pelly requested the alleged extension. Rather, appellant presented evidence that O’Hanlon had told Pelly there could be no extension, whereupon Pelly represented to O’Hanlon that Empire had a written commitment for financing and could close by October 31. O’Hanlon then told Pelly to put Empire’s request for an extension in writing and to show Equireal the written commitment, but made no promises other than to consider Empire’s request.

On October 1, 1991, William Nolan, president of Empire, drafted a letter to appellant in which Empire made a “formal request for an extension to the sales agreement” and attached a copy of a commitment by a Dr. E. Ronald Salvitti to finance the property. Nolan’s letter advised that there were “items in the commitment that need to be further refined, necessitating the extension.” The evidence was that Nolan’s letter was written at the direction of Pelly and was based upon Pelly’s conversation in mid-September with O’Hanlon. According to Pelly, he had not found it necessary to memorialize the alleged oral agreement to extend the date of performance because the agreement was based on “a gentleman’s word” and there had been previous verbal agreements between Empire and appellant. Pelly explained that he had eventually asked Nolan to draft the letter after having a conversation with O’Hanlon at the end of September in which O’Hanlon asked for a formal request for an extension for the benefit of appellant’s board of directors. Pelly said that he had instructed Nolan to draft a formal request for an extension, rather than a confirmation of the alleged verbal agreement, pursuant to O’Hanlon’s request.

On October 3, 1991, appellant sent a letter to Empire notifying Empire that it was in default under the sales agreement for failing to close on September 30, but advising that appellant was in the process of reviewing the proposed financing commitment submitted with Nolan’s letter. On October 7, 1991, appellant returned Dr. Salvitti’s letter of commitment and advised that it had no interest in pursuing the Schneider Farm sale with Empire. Appellant also informed Empire that it would be exercising the liquidated damages clause of the agreement and thereby retaining the deposits paid by Empire. Thereafter, on October 11, 1991, appellant sold the Schneider Farm to Property Ventures Limited for $2,150,000.00, some $550,000.00 less than the $2,700,000.00 that Empire had agreed to pay. At no time did Empire make a formal tender of performance.

Empire filed suit against appellant to recover damages, including loss of its $250,000.00 in deposits, pre-closing costs and lost profits. Empire asserted that the June 3, 1991 agreement had been orally modified to extend the date of settlement to October 31, 1991, and that appellant had breached the contract by terminating it prior to the extended settlement date. Appellant defended on grounds that there had been no oral modification of the contract and, that, in any event, oral modification was precluded by the Statute of Frauds and by the express terms of the contract. Appellant further maintained that it was entitled to keep the $250,000.00 in deposits paid by Empire pursuant to the liquidated damages clause of the contract.

Appellant initially asserts that any oral modification of its written contract with Empire was precluded by the Statute of Frauds. Therefore, appellant argues, the trial court erred by permitting the jury to hear evidence of the alleged oral modification of the written agreement to extend the date of closing. For the reasons which follow, we are persuaded that the Statute of Frauds was inapplicable to the instant action to recover damages for the breach of a written contract for the sale of land, which had been orally modified to extend the date of settlement.

“The statute of frauds directs that agreements for the sale of real estate shall not be enforced unless they are in writing and signed by the seller. The purpose of the statute is to prevent perjury and fraudulent claims.” Hostetter v. Hoover, 378 Pa.Super. 1, 7, 547 A.2d 1247, 1250 (1988). See also: Brotman v. Brotman, 353 Pa. 570, 573, 46 A.2d 175, 177 (1946); Rosen v. Rittenhouse Towers, 334 Pa.Super. 124, 130-131, 482 A.2d 1113, 1116-1117 (1984). “The Statute of Frauds does not void those oral contracts relating to land which fail to comply with the Statute’s formal requirements. It is to be used as a shield and not as a sword, as it was designed to prevent frauds, not to encourage them.” Fannin v. Cratty, 331 Pa.Super. 326, 332, 480 A.2d 1056, 1059 (1984), citing Zlotziver v. Zlotziver, 355 Pa. 299, 49 A.2d 779 (1946) and Gerlock v. Gabel, 380 Pa. 471, 112 A.2d 78 (1955). Therefore, even though an oral contract for the sale of real estate may not be specifically enforced, it may form the basis for an action to recover damages. See: Polka v. May, 383 Pa. 80, 118 A.2d 154 (1955). Hostetter v. Hoover, supra.

Under the interpretation that has been given to our statute of frauds a recovery of damages may be had for nonperformance of a parol agreement for the sale of land, the measure of such damages being the money that was paid on account of the purchase and the expenses incurred on the faith of the contract.

Polka v. May, supra at 84, 118 A.2d at 156. See also: Fannin v. Cratty, supra at 331-332, 480 A.2d at 1059; Weir v. Rahon, 279 Pa.Super. 508, 512-513, 421 A.2d 315, 317 (1980).

Instantly, Empire did not seek to specifically enforce the agreement to purchase land from appellant. Rather, it sought only to recover damages suffered on account of appellant’s alleged breach of the contract. In order to prove that appellant breached the contract, Empire had to first establish that appellant had agreed to an oral modification extending the date of settlement. To hold that such evidence would be precluded by the Statute of Frauds would permit appellant to use the statute as a sword, rather than a shield. Where, as here, the plaintiff is seeking only compensatory damages, the Statute of Frauds does not preclude the introduction of evidence that a written contract for the sale of land was orally modified. Accordingly, the trial court did not err by allowing Empire to introduce evidence of the oral modification of its written contract with appellant.

Appellant next argues that the alleged oral modification was not supported by consideration, and therefore, the modification is unenforceable as a matter of law. While we agree that a valid consideration is required to support an oral modification to a written agreement for the sale of land, Crown v. Cole, 211 Pa.Super. 388, 392, 236 A.2d 532, 534 (1967), we disagree that no valid consideration was given in the instant case. “ ‘[Consideration is implied from the mutual assent of the parties to the modification.’ ” KoEune v. State Bank of Schuylkill Haven, 134 Pa.Super. 108, 112, 4 A.2d 234, 237 (1939), quoting Ross v. Pennsylvania Underwriters Co., Inc., 123 Pa.Super. 484, 491, 187 A. 62, 65 (1936). See also: Sun Oil Co. v. Traylor, 407 Pa. 237, 242-243, 180 A.2d 235, 238 (1962). Therefore, if the jury believed the evidence that Charles O’Hanlon had assented to Frank Pelly’s request for a 30 day extension, then a valid consideration is implied to support the oral modification.

Appellant acknowledges that the parties to a written agreement, which contains provisions making time of the essence and prohibiting oral modifications, may waive either or both provisions. See: Warner Co. v. MacMullen, 381 Pa. 22, 29, 112 A.2d 74, 78 (1955); Accu-Weather, Inc. v. Prospect Communications, Inc., 435 Pa.Super. 93, 101, 644 A.2d 1251, 1255 (1994). See also: Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 557, 244 A.2d 10, 15 (1968); Wagner v. Graziano Construction Co., 390 Pa. 445, 448-449, 136 A.2d 82, 84 (1957); Davis v. Northridge Development Assoc., 424 Pa.Super. 283, 289-290, 622 A.2d 381, 385 (1993). Appellant disputes, however, that there was any evidence that it agreed to waive either provision in its contract with Empire. This lack of evidence, appellant contends, entitles it to a judgment notwithstanding the verdict. We disagree.

Instantly, Empire alleged that appellant had agreed orally to extend the settlement date from September 30, 1991 to October 31, 1991. The law is clear, however, that an extension of the time for performance to a specified future date does not defeat a provision in a contract making time the essence of the agreement. Wasserman v. Steinman, 304 Pa. 150, 154-155, 155 A. 302, 303 (1931); Mansfield v. Redding, 269 Pa. 357, 360, 112 A. 437, 438 (1921); Davis v. Northridge Development Assoc., supra. As such, even after an oral modification of the time of performance, the time is of the essence clause remains in full force and effect. Empire, therefore, was not required to present evidence that appellant had waived the “time is of the essence” clause in order to prove the alleged oral modification.

The law is also clear that “[a]n agreement prohibiting non-written modification may be modified by a subsequent oral agreement if the parties’ conduct clearly shows an intent to waive the requirement that amendments be in writing.” Accu-Weather v. Prospect Communications, supra. See also: Universal Builders, Inc. v. Moon Motor Lodge, Inc., supra; Wagner v. Graziano Construction Co., supra. Our review of the record discloses that there was sufficient evidence from which the jury could find that the parties had agreed to an oral modification of their contract to extend the time of performance thereby waiving the “no oral modifications” provision of the contract. In this regard, Empire’s representative, Frank Pelly, testified that appellant’s representative, Charles O’Hanlon, had orally agreed to a thirty day extension of the date of closing. This testimony was corroborated by other evidence, including the testimony of Virginia Pelly and Alex Efremenko, as well as the previous course of conduct occurring between the parties.

We next address appellant’s contention that the trial court gave an erroneous jury instruction regarding Empire’s burden of proof. “In reviewing a trial court’s instructions to the jury, it is well settled that we must view the court’s charge in its entirety to determine whether any prejudicial error has been committed.” Cooper v. Burns, 376 Pa.Super. 276, 283, 545 A.2d 935, 938 (1988). “The primary duty of the trial judge is to clarify the issues and apprise the jury of the legal principles needed to decide the case.” Havasy v. Resnick, 415 Pa.Super. 480, 498, 609 A.2d 1326, 1335 (1992). “A court’s instructions must adequately and accurately state the law and provide the jury with a guide during its deliberations.” Wilson v. Anderson, 420 Pa.Super. 169, 173, 616 A.2d 34, 36 (1992). “Erroneous jury instructions may be the basis for a new trial if it is shown that the instructions were fundamentally in error and might have been responsible for the verdict.” Sedlitsky v. Pareso, 425 Pa.Super. 327, 332, 625 A.2d 71, 74 (1993).

With respect to Empire’s burden of proof, the trial court charged the jury as follows:

Plaintiff has the burden of proving by a fair preponderance of the evidence, number one, that there was an oral agreement between the parties to extend the closing date from September 30th, 1991 to October 31st, 1991. Second, the plaintiff must prove by a fair preponderance of the evidence that the defendant breached that contract, thirdly, the plaintiff must prove by a fair preponderance of the evidence that it suffered a loss as a result of that breach, which brings us to the subject of damages.

Trial Transcript, Vol. III at 701. To the extent that this charge permitted the jury to find an oral modification of the written contract by a fair preponderance of the evidence, it was clearly erroneous. “The law is well settled that a written agreement can be modified by a subsequent oral agreement provided the latter is ... proved by evidence which is clear, precise and convincing.” Pellegrene v. Luther, 403 Pa. 212, 215, 169 A.2d 298, 299 (1961) (footnote omitted). “[W]here the writing contains an express provision that it constituted the entire contract between the parties and should not be modified except in writing, the party seeking to show subsequent oral modification in the agreement must prove it by clear, precise, and convincing evidence.... ” Nicolella v. Palmer, 432 Pa. 502, 508, 248 A.2d 20, 23 (1968). An “oral contract which modifies or changes or cancels a prior written contract must be proved by evidence which is clear, precise and convincing.” Pellegrene v. Luther, supra at 216, 169 A.2d at 300. See also: Betterman v. American Stores Co., 367 Pa. 193, 200, 80 A.2d 66, 71 (1951); Stoner v. Sley System Garages, 353 Pa. 532, 533-534, 46 A.2d 172, 173 (1946). This error, moreover, was such that the outcome of the case could clearly have been affected. To prevail in this case, Empire had to establish that an oral modification to extend the closing date had been agreed to by appellant. This should have been evaluated pursuant to a burden of proof requiring clear, precise and convincing evidence, rather than a mere preponderance of the evidence. Had the jury applied the higher burden of proof to this threshold question in the case, the result may well have been different. Accordingly, a new trial must be granted.

Finally, we address appellant’s remaining contention that, in addition to proving a breach by appellant of the agreement of sale, Empire was also required to prove that it was ready, willing and able to close on or before. October 31, 1991. In this regard, appellant had presented evidence at trial which sought to establish that Empire would have been unable to secure the financing necessary to perform its obligations under the contract. Absent proof of an ability to perform, appellant argues that Empire should not have been permitted to recover any damages.

In a breach of contract action, damages are awarded to compensate the injured party for loss suffered due to the breach. The purpose of damages is to put the plaintiff in the position he or she would have been in but for the breach. Maxwell v. Schaefer, 381 Pa. 13, 21, 112 A.2d 69, 73 (1955); Harman v. Chambers, 358 Pa. 516, 521, 57 A.2d 842, 845 (1948); Mancini v. Morrow, 312 Pa.Super. 192, 204, 458 A.2d 580, 586 (1983). See also: Sechrist v. Bowman, 307 Pa. 301, 310, 161 A. 332, 335 (1932) (damages means compensation for a legal injury sustained). The measure of damages applicable to the instant action for breach of contract is as follows:

It has been well settled that in a vendee’s action against his vendor for breach of a written contract to convey land, the vendee’s right of recovery, if the vendor acted in good faith, is limited to the down money, and such other reasonable expenditures that the vendee has incurred in reliance upon the contract: Kargiatly v. Provident Trust Company of Philadelphia et al., 338 Pa. 358, 12 A.2d 11. However, where a vendor ... arbitrarily and without reasonable excuse, in order to escape the effects of a bad bargain, refuses to comply with his contract, the vendee ... is entitled not only to compensatory damages but to damages arising from the loss of his bargain: Bartram v. Hering, 18 Pa.Superior Ct. 395; Seidlek v. Bradley, 293 Pa. 379, 142 A. 914.

Frey v. Nakles, 380 Pa. 616, 622, 112 A.2d 329, 332 (1955). See also: Fannin v. Cratty, supra at 332, 480 A.2d at 1059. The plaintiff bears the burden of proving such damages by a fair preponderance of the evidence. SHV Coal, Inc. v. Continental Grain Co., 376 Pa.Super. 241, 252, 545 A.2d 917, 922 (1988), reversed on other grounds, 526 Pa. 489, 587 A.2d 702 (1991). However, if a plaintiff “could not ... have performed the substantial equivalent for which the defendant’s performance was agreed to be exchanged, he is given no remedy in damages for the defendant’s non-performance or repudiation.” 4 A. Corbin, Corbin on Contracts § 978 at p. 924 (1951). See also: Heron v. Hoffner, 3 Rawles 393, 400 (1832); Restatement (Second) of Contracts § 254. A party who cannot perform its own obligations under a contract is not entitled to collect damages. Nikole, Inc. v. Klinger, 412 Pa.Super. 289, 303-304, 603 A.2d 587, 593-594 (1992). See also: Jonnet Develop. Corp. v. Dietrich Indus., Inc., 316 Pa.Super. 533, 544, 463 A.2d 1026, 1031-1032 (1983).

With respect to the award of damages in the instant case, the trial court instructed the jury as follows:

[Tjhere are three components of damage that the plaintiff is claiming in this case. One relates to the loss of deposit, the $250,000. The second relates to pre-closing expenses and there is an exhibit which will be taken up with you which details how plaintiff breaks that down. I think it is sixteen thousand plus dollars. Thirdly, the claim of lost profit.
With respect to the loss of deposit, if you find that there was an oral agreement, if you find liability, that there was an oral agreement to extend that agreement of sale — was modified by the extension and was breached, then the plaintiff is entitled the return of $250,000. With respect to the pre-closing expenses, there is a claim by the defendant in this case that the plaintiff, even if they had gone as far as October 31st would not have been able to close and, therefore, did not incur any expenses as a result of or did not occur any damages as a result of the actions of the defendant. The defendant is asserting that the plaintiff would have incurred those losses regardless, that the expenses incurred prior to closing would have been incurred because they would be able [sic] to put the financing together. You have to make a determination whether the plaintiff has proven by a fair preponderance of the evidence that it suffered damages as a result of the defendant’s actions.
That relates to the pre-closing and it relates to the issue of lost profit.

Trial Transcript, Vol. Ill at 702-704.

It is clear from this jury instruction that the trial court had made Empire’s recovery of damages dependent upon Empire’s ability to perform, at least with respect to Empire’s claim for damages due to pre-closing expenses and lost profits. The trial court, however, allowed the jury to award damages due to loss of Empire’s deposits regardless of Empire’s ability to perform. In this regard, the trial court erred. Heron v. Hoffner, supra; Jaffe v. Alliance Metal Co., Inc., 337 Pa. 449, 452, 12 A.2d 13, 14 (1940); Nikole, Inc. v. Klinger, supra; Jonnet Develop. Corp. v. Dietrich Indus., Inc., supra. The jury should have been instructed that, with respect to meeting its burden of proving damages, Empire was required to prove by a fair preponderance of the evidence that it would have been ready, willing and able to perform its obligations under the agreement of sale.

Accordingly, because the trial court gave erroneous jury instructions regarding the burden of proof relating to the oral modification of a written contract and with respect to proof of damages, a new trial must be granted.

The judgment entered in favor of Empire is reversed and the case is remanded for a new trial consistent with the foregoing opinion. Jurisdiction is not retained.

      . This deposit was to be paid in three installments of $50,000.00.

      . The July 3, 1991 letter from appellant to Empire stated “we have agreed to amend and extend the Agreement of Sale on the following terms and conditions....’’ On July 9, 1991, Empire signed the letter in a space provided and returned it to appellant, thereby indicating that it "agreed to and accepted” the terms set forth. The July 12, 1991 letter from appellant to Empire stated “we agreed orally to extend and modify the Agreement as reflected in my letter of July 3, 1991....”

      . Act of March 21, 1772, 1 Sm.L. 389, § 1, 33 P.S. § 1.

      . Appellant's evidence included the testimony of Dr. Salvitti, who was unwilling to finance Empire's purchase without Empire’s procurement of development financing, and the testimony of William Bonner of First Federal of New Castle, who when asked whether a commitment for development financing could be obtained by October 31, 1991, pursuant to Empire’s request, responded that while anything was possible, it was not probable. There was also evidence that Empire was unable to obtain financing from any other sources.

      . There is no merit in Empire’s contention that appellant’s breach of the agreement excused its duty of performance. While one party’s breach of a contract may render the other party’s tender of performanee a futile act, it does not relieve the other party of the burden of proving its ability to perform under the contract. See: Sunseri v. Mancuso, 362 Pa. 161, 163-164, 66 A.2d 830, 831 (1949) (excusing formal tender of performance where defendant-sellers became dissatisfied with their bargain and were attempting to escape it, but evidence showed that plaintiff-buyers had balance of purchase price on hand); Davis v. Northridge Develop. Assoc., 424 Pa.Super. 283, 290-291, 622 A.2d 381, 385-386 (1993) (excusing tender of performance where seller admitted its inability to fulfill its obligations under the contract and buyers "were at all times ready and willing to tender performance.”).


author: HOFFMAN, Judge:

text:
    674 A.2d 306
    COMMONWEALTH of Pennsylvania, Appellant v. Cynthia HUNTER.
    Superior Court of Pennsylvania.
    Argued Jan. 25, 1996.
    Filed April 4, 1996.
    Reargument Denied June 6, 1996.

      Stephen G. Downs, Jr., Assistant District Attorney, Towanda, for Commonwealth, appellant.
    Gerald A. Kinchy, Sayre, for appellee.
    Before McEWEN, President Judge, and SAYLOR and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from the December 29, 1994 order dismissing criminal charges against appellee, Cynthia Hunter. Appellant, the Commonwealth of Pennsylvania, raises the following issue for our review:

WHETHER DOUBLE JEOPARDY BARS REPROSECUTION FOLLOWING A PRETRIAL DISMISSAL OF CHARGES BASED UPON THE INSUFFICIENCY OF THE COMMONWEALTH’S EVIDENCE.

Appellant’s Brief at 3. For the following reasons, we reverse.

Appellee was charged with a variety of theft offenses in the Court of Common Pleas in Bradford County arising from the alleged theft of approximately twenty thousand ($20,000) dollars from her employer. At a pre-trial conference on May 3, 1994, appellee’s defense counsel raised the issue of whether the Commonwealth’s evidence was sufficient to submit to a jury. Both counsel agreed that a trial would take several days and involve complicated evidence. Therefore, in the interest of judicial economy, the court ordered defense counsel to present the issue of the sufficiency of the Commonwealth’s evidence in the form of a motion.

In this subsequent motion to dismiss, defense counsel argued that the Commonwealth’s case would not survive a demurrer brought at the close of its evidence and requested the court to determine whether the evidence that would be presented at trial by the Commonwealth was sufficient to submit to a jury. For purposes of the motion, the Commonwealth agreed that its trial evidence would be the same as the evidence it offered at the preliminary hearing. In addition, the parties stipulated that the trial court would rule on the evidence as if the Commonwealth had introduced its evidence at trial and the case was ready to be submitted to the jury. Thereafter, the trial court examined the evidence from the preliminary hearing, ruled that it was insufficient to support a conviction, and dismissed the charges against appellee.

The Commonwealth never appealed the dismissal of the charges, but subsequently refiled the same charges against appellee. Appellee responded by filing both a motion to stay the proceedings and a motion to quash. In return, the trial court issued an ex parte stay of further proceedings and issued a rule to show cause why the motion to dismiss should not be granted upon the Commonwealth. The Commonwealth filed an answer to the rule returnable, asserting that it had additional evidence to present in support of the criminal charges and that jeopardy never attached to appellee. After hearing argument, the trial court granted the motion to quash the criminal proceeding and dismissed the refiled charges, holding that- the initial dismissal was the “functional equivalent” of an acquittal because the court treated the pre-trial motion to dismiss as a demurrer entered after the presentation of the Commonwealth’s evidence at trial and found the evidence insufficient to support a conviction. Consequently, the court found that any further prosecution of appellee on the same charges would violate the prohibition against double jeopardy. This timely appeal followed.

The Commonwealth contends that the trial court erred in ruling that double jeopardy precluded appellee’s reprosecution on the same charges.

The United States Supreme Court has stated that “[t]he constitutional prohibition against double jeopardy was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for the same offense.” Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957). Accordingly, this Court has determined that at the heart of double jeopardy jurisprudence is the requirement that an individual demonstrate that he or she has been subjected to the risk of a trial on the merits. Commonwealth v. Smith, 391 Pa.Super. 154, 159-60, 570 A.2d 559, 562 (1990). In Pennsylvania, jeopardy does not attach and the constitutional prohibition against double jeopardy has no application until a defendant stands before a tribunal where guilt or innocence will be determined. Liciaga v. Court of Common Pleas, 523 Pa. 258, 264, 566 A.2d 246, 249 (1988).

In the present case, notwithstanding the trial court’s characterization of appellee’s motion to dismiss as a demurrer, appellee was never in jeopardy in this case because she was never subjected to the risk of being convicted. If the trial court had denied appellee’s motion to dismiss, the Commonwealth would still have had to proceed to a trial on the merits in order to secure a conviction against appellee. Since appellee was never in jeopardy of being convicted, the double jeopardy clause was not triggered in this case. See Smith, 391 Pa.Super. 154, 159-60, 570 A.2d at 562 (it is “ ‘fundamental’ ” that “ ‘an accused must suffer jeopardy before he can suffer double jeopardy,’ ” and “ ‘[wjithout risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.’ ”) (quoting Serfass v. United States, 420 U.S. 377, 391-93, 95 S.Ct. 1055, 1064-65, 43 L.Ed.2d 265, 276 (1975)). Therefore, we find that the trial court erred in ruling that the Commonwealth was precluded from refiling the charges against appellee on double jeopardy grounds.

Accordingly, the lower court order dismissing the charges against appellee is reversed.

Reversed and remanded. Jurisdiction relinquished.

McEWEN, President Judge, dissents.


text:
    674 A.2d 698
    In re ADOPTION OF A.S.H. Appeal of Benjamin William FELL and Debra Ann Fell.
    Superior Court of Pennsylvania.
    Argued Dec. 14, 1995.
    Filed Feb. 22, 1996.
    Reargument Denied May 1,1996.

      Michael Churchill, Philadelphia, for appellants.
    Julia Malloy-Good, West Chester, for Darlene Herring, participating party.
    Lawrence J. Persick, West Chester, for Chester Co. Children & Youth Services, participating party.
    Before McEWEN, CIRILLO and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

On March 2, 1991, A.S.H. (Alexa) was born to a drug-addicted single mother and an alcohol-addicted single father. On July 5, 1991, the Chester County Department of Children, Youth and Families (CYF) took custody of Alexa, and then immediately placed the child in foster care with appellants William and Debi Fell. Over the next two and one-half years, Alexa lived with the Fells. During that time, her natural parents’ rights were terminated.

Between 1992 and 1994, a number of Alexa’s extended biological family members were considered as adoption resources, but all of the parties involved ultimately withdrew from consideration. When a paternal aunt withdrew in February of 1994, CYF initiated pre-placement visits with a potential adoptive parent, appellee Darlene Herring.

On July 22, 1994, Alexa was placed for adoption with Herring. The Fells immediately filed an emergency petition with the Chester County Juvenile Court of Common Pleas to block the placement. By order dated October 17, 1994, the Juvenile Court denied this petition.

Shortly after this denial, the Fells filed a complaint in federal court alleging a violation of their civil rights. The essence of this complaint was that CYF discriminated against them, on the basis of race, when it allegedly utilized a policy that preferred to place African-American children with African-American adoptive parents. Prior to a federal court determination on the merits, CYF and the Fells entered into a settlement agreement on November 22, 1994. Under this agreement, one Dr. Robert Sadoff was appointed to evaluate the situation and determine the appropriate placement based on the best interests of the child. CYF, the Fells, and counsel for Alexa agreed to be bound by Sadoff s recommendations. While Herring signed the agreement, she specifically refused to be bound by the recommendations.

In 1995, Dr. Sadoff appointed Dr. Marshall Schecter to evaluate the situation. After review, Dr. Schecter recommended that Alexa be returned to the Fells. Since CYF had agreed to be bound by these recommendations, it notified Herring that it intended to remove Alexa and place her with the Fells.

On July 26, 1995, Herring filed a petition to stay Alexa’s removal. Following an August hearing, the Honorable Alexander Endy granted the stay, and ordered that Alexa remain in Herring’s custody. Additionally, CYF was ordered to proceed with and consent to Herring’s adoption of Alexa. After exceptions were denied, the Fells filed the instant appeal, primarily challenging the trial court’s “best interests” analysis.

In reviewing a trial court’s “best interests” analysis in custody and adoption matters, our scope of review is as follows:

[[A]n appellate court is] not bound by findings of fact made by the trial court which are unsupported in the record, nor [is - it] bound by the court’s inferences drawn from the facts. However, on issues of credibility and weight of the evidence, [an appellate court] defer[s] to the findings of the trial judge, who has had the opportunity to observe the proceedings and the demeanor of the witnesses. Only where [it] find[s] that the custody order is “manifestly unreasonable as shown by the evidence of record ...” will an appellate court interfere with the trial court’s determination.

Robinson v. Robinson, 538 Pa. 52, 54-57, 645 A.2d 836, 837-38 (1994) (quoting Mumma v. Mumma, 380 Pa.Super. 18, 21, 550 A.2d 1341, 1343 (1988), appeal denied, 524 Pa. 629, 574 A.2d 70 (1990)). See also Matter of Adoption of Sturgeon, 300 Pa.Super. 92, 111, 445 A.2d 1314, 1323 (1982). It is with this scope of review in mind that we address appellants’ claims.

In both custody and adoption matters, our paramount concern is the best interests of the child. E.g., McMillen v. McMillen, 529 Pa. 198, 200, 602 A.2d 845, 846 (1992); Sturgeon, 300 Pa.Super. at 106, 445 A.2d at 1321. See also 23 Pa.C.S.A. § 2902(a). This “best interests” determination is made on a case-by-case basis, and requires the weighing of all factors which bear upon a child’s physical, intellectual, moral, and spiritual well-being. E.g., In the Interest of C.F., 436 Pa.Super. 83, 89, 647 A.2d 253, 256 (1994). In this case, appellants assert that the trial court made a number of errors, which ultimately led to the incorrect conclusion that it was in Alexa’s best interests to remain with Herring.

Appellants first assert that the trial court erred by not considering Alexa’s emotional bond with them. We agree with appellants that the existence of an emotional bond between the child and one of the prospective custodial parents is an important factor. E.g., In re Davis, 502 Pa. 110, 139, 465 A.2d 614, 629 (1983). We disagree, however, with appellants’ assertion that the trial court failed to consider and properly weigh the existence of any such bond here.

In the trial court’s September 22, 1995, opinion, the court has a separate section entitled “Capacity to establish new relationships and quality of bonding.” Opinion, 9/22/95 at 17. In that section, the trial court notes that Dr. Schecter found that Alexa had bonded with both Herring and the Fells. While acknowledging a bond with both parties, the court placed greater weight on the bond with Herring. It noted that Alexa called Herring “mommy” and called Herring’s mother “grandma.” The child also referred to Herring’s daughter as “sister.” After review, the trial court found that these terms were an indication of the familial relationship that had developed between Alexa and the Herring household. Thus, while the court acknowledged that' Alexa had also bonded with the Fells, it placed greater weight on the familial bond with Herring. Id. Since the trial court did in fact consider the issue of emotional bonds, and simply chose to place greater weight on the record evidence of the bond with Herring, we cannot agree with appellants that the trial court’s review was erroneous or inadequate. See Robinson, 538 Pa. at 56, 645 A.2d at 838 (“On issues of credibility and weight of the evidence, appellate courts must defer to the findings of the trial judge who has had the opportunity to observe the proceedings and the demeanor of the witnesses.”).

Next, appellants assert that the trial court improperly based its conclusions on race. Again, we must disagree with appellants’ characterization of the trial court’s decision. In its September 22, 1995 opinion, the court briefly addressed the issue of racial and cultural heritage. Opinion, 9/22/95 at 21. The court noted that Herring’s experience with African-American culture would be beneficial to Alexa. Contrary to appellants’ assertion, this was not the sole basis, or even a substantial basis, for the court’s placement decision. The trial court in this case conducted an extensive review of the evidence, with Alexa’s best interests in mind, and ultimately concluded that factors such as special needs, emotional bonding, and self-esteem weighed in favor of granting custody/adoption to Herring. Id. at 15-20. The mere mention of the respective race of the parties and the possible effects on Alexa’s racial and cultural development does not vitiate or nullify the trial court’s thorough and thoughtful analysis of a whole host of other factors. Under these circumstances, we simply cannot agree with appellants that the trial court’s placement decision was based on race.

Appellants also argue that the trial court erred in failing to consider whether Alexa would be able to maintain biological family ties if she lived with Herring. In its September 22, 1995, opinion, the trial court noted that it would be premature to address such an issue at the present stage. Opinion, 9/22/95 at 20. We must agree. Given that Alexa’s parents were thoroughly unfit to raise her, and that the other relatives were not prepared to adopt the child, we find that the trial court properly focused on securing the best possible home environment for Alexa, without regard to the geographical location of the extended biological family. As the trial court noted, the issue of contact with biological relatives would be best addressed by the adoptive parent as the child progresses. Id.

Finally, appellants’ claim that the trial court erred in concluding that Herring would provide a better home for the child. After careful review, we must again disagree with appellants. The trial court found that Herring could best provide for Alexa’s special needs because of Herring’s experience as a social worker and Herring’s mother’s experience as a school teacher. The court also found that the Fell household was experiencing a certain amount of stress, which could detrimentally affect Alexa. Additionally, the court noted that Herring has only one other child, who is roughly Alexa’s age. In contrast, the Fells have three teenage biological children, one three-year-old adopted child with special needs, and a number of temporary foster children. Based on the number of dependents, the trial court simply concluded that Herring was in a better position to give Alexa the attention that she needed. In light of all of the above evidence, we must conclude that the record supports the trial court’s determination that Herring could provide a better home for Alexa.

After reviewing all of appellants’ arguments regarding the trial court’s “best interests” analysis, it becomes clear that appellants are not arguing that the record does not support a placement with Herring, but rather that the record could equally support a placement with them. On this point, we agree with appellants. This case is a difficult one precisely because Alexa would receive good, loving care in both of these households. Nevertheless, the trial court could only award custody to one party, and it concluded that the scales tipped in favor of Herring. Since the conclusion regarding placement with Herring is supported by record evidence and is not manifestly unreasonable, we simply cannot interfere with the trial court’s determination. See Robinson, 538 Pa. at 56, 645 A.2d at 838; Sturgeon, 300 Pa.Super. at 110, 445 A.2d at 1323.

Appellants’ final argument is essentially that the trial court could not place Alexa with Herring because such placement would contravene the 1994 agreement that settled the Fells’ federal civil rights lawsuit, as well as the federal court order memorializing that agreement. In Sturgeon, this Court stated in the strongest terms that “a child is not a chattel, to be finally disposed of by agreement among the parties.” Id. at 107, 445 A.2d at 1321. Notwithstanding any prior agreement between the parties, the courts must be guided by their own independent analysis of the best interests of the child. Id. (quoting Stapleton v. Dauphin County Child Care Service, 228 Pa.Super. 371, 324 A.2d 562 (1974)).

In this case, the trial court properly made an independent inquiry into Alexa’s best interests. The court recognized that it was not bound by a 1994 agreement, signed by CYF and the Fells in settlement of a federal civil rights action. In that civil rights case, the focus was on the Fells’ rights and not on Alexa’s best interests. Since neither CYF’s agreement to abide by Dr. Sadoff s conclusions nor the federal court’s order memorializing that agreement relieved the trial court of its duty to determine the best interests of the child, we find that the court did not improperly contravene a federal court order or a prior agreement when it analyzed Alexa’s best interests and ultimately concluded that Alexa should be placed with Herring.

In sum, we find that the trial court performed a thorough and compassionate evaluation of the evidence, and we find no abuse of discretion. In such a case, we must affirm. See Robinson, 538 Pa. at 56, 645 A.2d at 838 (“Appellate interference is unwarranted if the trial court’s consideration of the best interest of the child was careful and thorough, and we are unable to find any abuse of discretion.”); Sturgeon, 300 Pa.Super. at 108, 445 A.2d at 1322-23.

Affirmed.

      . William Fell is a forty-nine-year-old hardware clerk and part-time school bus driver. His wife, forty-year-old Debi Fell, works solely in the home. The Fells, who live in Downington, Pennsylvania, have three biological children ranging in age from thirteen to seventeen. They also recently adopted a three-year-old African-American boy. In addition to caring for these four children, the Fells also serve as CYF foster parents. Since 1987, the Fells have had twenty-eight children placed in their care, and they are currently caring for one foster child who is awaiting permanent placement. Debi Fell also baby-sits, four days a week, for a neighbor's three-year-old son.

      . Ms. Herring is a forty-seven-year-old single parent, who lives in Maryland with her mother, Rose, and her adopted six-year-old daughter, Lauren. Herring's mother watches Lauren and Alexa during the daytime, while Herring is at work in Washington, D.C. Herring has been a social worker for the past twenty years and currently works with refugees.

      . Alexa is an African-American child; Herring is an African-American woman; the Fells are a Caucasian couple.

      . While acknowledging that the Fells did not have standing to contest custody by virtue of their relationship as foster parents, the trial court allowed the Fells to participate in the proceedings because of their interest in the federal court settlement agreement. See trial court opinion, 9/22/95 at 13.

      . We also note that appellants rely heavily on psychiatric testimony and seem to be arguing that a trial court cannot malee any findings in contravention of an expert's conclusions. We remind appellants that the issue of a child's best interests is a legal determination that is properly made by the trial court, and not by a psychiatrist. See Commonwealth ex rel. Grimes v. Yack, 289 Pa.Super. 495, 528, 433 A.2d 1363, 1381 (1981) (holding that the "best interests” of a child "is a legal concept and is not to be defined in psychiatric terms.”).