author: OLSZEWSKI, Judge:

text:
    575 A.2d 141
    COMMONWEALTH of Pennsylvania, Appellant, v. Robert AUSTIN, Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed April 27, 1990.

      Ann Lebowitz, Asst. Dist. Atty., Philadelphia, for Com.
    George Henry Newman and David M. McGlaughlin, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

This is an appeal from an order granting defendant-appellee’s motion to quash a murder charge, bill of information no. 3251. The motion to quash was granted because there was nothing in the evidence to indicate an intentional killing or that malice was present or could be inferred.

The Commonwealth requests that we reverse the order and remand the case for trial, contending that evidence presented at the preliminary hearing established the elements of premeditation and malice. We find that the Commonwealth has failed to prove its argument; consequently, we affirm.

Appellee was charged with murder, voluntary manslaughter, involuntary manslaughter, and possessing an instrument of crime — a knife. After a preliminary hearing on March 23, 1988, the court found sufficient evidence to establish a prima facie case of murder and possession of an instrument of crime. On March 6, 1989, a hearing was held before trial court Judge McKee on defendant-appellee’s motion to quash the murder count. Judge McKee quashed count 1 charging murder. Subsequently, upon the Commonwealth’s motion, Judge McKee vacated his order and transferred the matter to Judge Manfredi, sitting as homicide calendar judge, pursuant to Philadelphia Criminal Rule 605. Judge Manfredi’s order, once again quashing the murder charge, is the subject of this appeal.

The evidence presented at the preliminary hearing follows. It was stipulated that the decedent was Raymond Adams; that the date of his death was September 20, 1987; that previously Adams was a life in being; and that the cause of death was a stab wound to the abdomen. (N.T. 3/23/88 at 3.) The only evidence presented by the Commonwealth was a statement made by Robert Austin to the police. In pertinent part, it is as follows:

Q. Detective Alexander, will you go on at this time and read the statement given to you by Mr. Austin at that time?

A. Okay. On page one of the interview, the first question was: “Question: Robert, tell me in your own words what happened at approximately nine p.m. on 9-,9-87 that caused you to stab Raymond Adams outside the bar at Broad and Glenwood Streets?

Answer: I was in the bar approximately forty-five minutes before this happened.

From the time I walked in Sandy started to argue with me. I couldn’t understand it, because I had been out with her and the guy I stabbed. I don’t know his name, the night before.

We had been drinking together, and we went to a party together.

After the party, we all went our own way.

Friday night before we left the party I had asked her for some money, and she told me that she got paid Saturday, and for me to stop by the bar. That’s why I was at the bar Saturday night.

While she was arguing with me, the owner of the bar came over and told her to leave. I got up and went to the bathroom.

When I came out, Sandy was still behind the bar getting her stuff together.

About five minutes went by, and me, Raymond, Sandy, and two of Sandy’s cousins, a male and a female, left the bar together.

When we went outside, I tried to talk to Sandy to find out why she was mad at me. I started to walk towards Sandy, but this guy Raymond was between us. He had this look on his face sort of a threatening look.

I told him to stay out of it, because he had nothing to do with it.

He had something in his hand, but I could not see what it was. I went past him toward Sandy, and then Raymond hit me in the head with a pipe, or stick or something.

I stumbled and turned around. He came at me, and as he was swinging whatever he had, as he was swinging what it was there he had, I put up my left hand and he hit me. As he was doing this, I pulled out my knife. I had it in my hand, and I swung the knife at him swinging (indicating an upward motion from the waist). And if I thought about it twice, I was swinging again, but I changed my mind, because he was on the defense now. So I just turned around and left.

When I walked away, he was still standing.

Then Sandy said, 'T know where you live, and I know where your sister lives.”

I looked back, and when I did, Raymond was laying on the ground.

******

Question: Where did you get the knife?

Answer: I had it with me. I carry it on Friday and Saturday nights because it’s bad out on the streets.

******

Question: How many times did Raymond hit you?

Answer: All together, about three or four times____”

(N.T. 3/23/88 at 7-11.)

At a preliminary hearing the Commonwealth bears the burden of establishing a prima facie case that a crime has been committed and that the accused is probably the one who committed it. Commonwealth v. Wojdak, 502 Pa. 359, 367, 466 A.2d 991, 995 (1983). To sustain that burden the Commonwealth must produce evidence that, if accepted as true, would warrant the trial judge to allow the case to go the the jury. Id. at 995-996. The prima facie standard requires that the Commonwealth produce evidence of the existence of each and every element of the crime charged; consequently, absence of evidence as to the existence of a material element is fatal. Id. at 996-997. This standard does not require that the Commonwealth prove the elements of the crime beyond a reasonable doubt nor that evidence is available that would prove each element at trial beyond a reasonable doubt. Commonwealth v. Snyder, 335 Pa.Super. 19, 23, 483 A.2d 933, 935 (1984).

Murder is defined as follows:

§ 2502. Murder
(a) Murder of the first degree. — A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
(b) Murder of the second degree. — A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
(c) Murder of the third degree. — All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
(d) Definitions. — As used in this section the following words and phrases shall have the meaning given to them in this subsection:
* # sjc # * *
“Intentional killing.” Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.

18 Pa.C.S.A. § 2502.

In order to establish murder in the first degree, the Commonwealth must prove that Austin specifically intended to kill, which, in turn is proved by evidence of premeditation and deliberation. Commonwealth v. Garcia, 505 Pa. 304, 310, 479 A.2d 473, 476 (1984). Although the period of premeditation necessary to form the specific intent to kill may be very brief, see Commonwealth v. Chimenti, 362 Pa.Super. 350, 381, 524 A.2d 913, 929, appeal denied 516 Pa. 639, 533 A.2d 711 (1987), from the evidence presented at the preliminary hearing, we cannot find even a scintilla of evidence indicating that Austin wanted to kill the victim before or during the time he swung the knife at victim. The Commonwealth argues that the mere fact that Austin used a knife on a vital part of the victim’s body is enough to show that it is more likely than not that Austin specifically intended to kill the victim. Specifically, Commonwealth alleges that “defendant intentionally withdrew a long, concealed knife and plunged it into victim’s abdomen, a deliberate and dangerous act which alone established his malice, as well as his specific intent to kill.” (Commonwealth’s brief at 9.) The evidence presented at the preliminary hearing does not support the Commonwealth’s position. Austin admitted he intentionally pulled out his knife. Austin then stated that, “I swung the knife at him swinging (indicating an upward motion from the waist). And if I thought about it twice, I was swinging again----” (N.T. 3/23/88 at 9.) The Commonwealth construes this evidence to indicate that Austin’s focus was on plunging the knife into the victim, from which it can be inferred that Austin intended to kill the victim. The evidence, however, supports the position that Austin’s focus was on swinging the knife and not on stabbing the victim.

The Commonwealth’s argument centers on the use of the knife itself to cause the death; however, the physical act of using the knife on a vital area is not the proper focus. The proper focus for determining the mental component of the crime is how appellant intended to use the knife or what caused the knife to come into contact with a vital area of a human body. A specific intent to kill and malice are properly implied when a deadly weapon is directed to a vital part of the body. Commonwealth v. Roberts, 496 Pa. 428, 431-32, 437 A.2d 948, 951-952 (1981); Commonwealth v. Carter, 481 Pa. 495, 497, 393 A.2d 13, 15 (1978); and Commonwealth v. Palmer, 448 Pa. 282, 284, 292 A.2d 921, 923 (1972). In other words, what did Austin intend to do with the knife: was it his intention to put the knife into the victim or was it his intention to do something else.

In the case before the bar, the preliminary hearing judge had to determine from the evidence what Austin’s intentions were up to and including the moment of the knife’s contact with victim. There is no evidence that the knife was directed at a vital part of the victim’s body. Austin admitted to swinging the knife and the Commonwealth presented no other evidence concerning this issue. The judge found that Austin did not intend to direct the knife into victim’s body. We agree.

Commonwealth does not contend that Austin’s actions constitute second-degree murder. We must, therefore, analyze whether it is more likely than not that Austin’s actions constitute third-degree murder. Third-degree murder does not require a specific intent to kill although it does require malice. Commonwealth v. Wanamaker, 298 Pa.Super. 283, 287, 444 A.2d 1176, 1178 (1982). Malice is an essential element of murder in the third degree and is the distinguishing factor between manslaughter and murder. Commonwealth v. Young, 494 Pa. 224, 227, 431 A.2d 230, 232 (1981). “Malice in its legal sense exists not only where there is a particular ill will, but. also whenever there is a wickedness of disposition, hardness of heart, wanton conduct, cruelty, recklessness of consequences and a mind regardless of social duty.” Id. at 232 (internal citations omitted). The preliminary hearing court did not find any of these indicia to be present. We agree. A review of the Commonwealth’s evidence reveals the actions and frame of mind of a man responding to an attack from behind.

Malice may be inferred from the attending circumstances. Id. Previously in this opinion, we determined that malice could not be inferred from Austin’s use of a knife to stab victim. That determination holds true for third-degree murder as well as first-degree murder.

The order quashing bill of information no. 3251 is affirmed. This case is remanded to the Court of Common Pleas of Philadelphia County. Jurisdiction relinquished.

      . Commonwealth cites the following cases:

        Commonwealth v. McAndrews, 494 Pa. 157, 430 A.2d 1165 (1981); Commonwealth v. O’Searo, 466 Pa. 224, 352 A.2d 30 (1976); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970); Commonwealth v. Frederick, 327 Pa.Super. 199, 475 A.2d 754 (1984); Commonwealth v. Baylor, 323 Pa.Super. 9, 469 A.2d 1134 (1983); and Commonwealth v. Clark, 270 Pa.Super. 441, 411 A.2d 800 (1979) (allocatur denied), cert denied, 446 U.S. 944, 100 S.Ct. 2170, 64 L.Ed.2d 799 (1980).


source: Caselaw Access Project

author: TAMILIA, Judge: WIEAND, Judge,

license: Public Domain

text:
    575 A.2d 145
    Evaline SHILLING v. Lynn SHILLING, Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1990.
    Filed May 21, 1990.

      Frederick D. Lingle, Lock Haven, for appellant.
    Before WIEAND, TAMILIA and POPOVICH, JJ.
   TAMILIA, Judge:

This is an appeal from the Order of Court of Common Pleas of Clinton County granting support to appellee, Eva-line Shilling, in the amount of $133 per week as spousal support, and $48 per week in child support. We reverse.

The parties, Evaline and Lynn Shilling, were married on February 7, 1964, and have two sons, born in 1967 and 1975. Although one son is an emancipated adult, both children resided with the parties in the marital home. On March 15, 1989, appellee filed a complaint for support, notwithstanding appellant continued to reside in the marital home. However, appellant spent as many as three nights per week away from the marital residence, occasionally at the home of a female friend. Appellant filed a complaint in divorce on March 22, 1989.

Appellant maintains he has not left the marital residence, and is continuing to provide adequate support for appellee and their minor child.

As the trial court stated:

With respect to this latter contention the evidence is somewhat in conflict. It does appear that [appellant] is paying the electric bill, the water bill, the sewage bill and the real estate taxes on both the marital residence and the rental property [owned by the parties]. [Appellee] has paid doctor bills for the parties’ child as well as a J.C. Penney account which she has in her own name. She has also paid for television cable service and clothing and has purchased her own groceries. [Appellant] has placed meat in the refrigerator on one occasion and has purchased milk, bread, cereal and peanut butter which he left at the home. The only monetary contributions made by [appellant] to [appellee] since March of 1989 include a $150.00 federal income tax refund check and $98.00 which he gave to the parties’ son, Earl.

(Slip Op., Brown, P.J., 7/20/89, pp. 3-4.)

Appellant also maintained health insurance for appellee and their son, and paid their dental and medical bills not covered by insurance (N.T., 6/11/89, pp. 33-34).

As to the financial status of the parties, the trial court further stated:

[Appellee] is unemployed and has been so unemployed throughout most of the marriage. As the parties’ marital storm was developing [appellee] did change a joint savings account to her name alone. This account contained approximately $5,000.00 and has been utilized by [appellee] toward her support needs since the filings of these proceedings. In addition [appellee] is receiving the monthly rentals of $200.00 for a rental property owned by the parties____
There have been allegations from [appellant] that [appellee] has also appropriated some $1,400.00 from a stove business which he operates as a sideline. However that business is presently dormant and the Court would not consider those sums to be representative of available income on an ongoing basis to [appellee]. To the extent [appellant] can establish the conversion of these funds it is more appropriately a matter to be handled in the divorce action____
[Appellant’s] financial circumstances indicate that his primary employment is as a teacher.... He is paid on a bi-weekly basis and currently has a net pay of $900.00 each pay or the sum of $450.00 per week in net earnings. He is engaged in no other employment at the present time.

(Slip Op. at pp. 2-3.)

Appellant argues the court erred in ordering he pay support, not only because he continued to reside for the most part in the marital residence, but also because he continued paying the bills associated with the marital residence, paid for items needed by appellee, and because appellee had considerable monies and income of her own. We agree.

In a support action, the moving party must demonstrate either physical or financial separation. Commonwealth ex rel. Rubin v. Rubin, 230 Pa.Super. 591, 326 A.2d 578 (1974). In the instant case, the record does not establish appellee has demonstrated either requirement.

The testimony indicated appellant spent Monday, Tuesday, Thursday and Sunday in the marital residence. The testimony was somewhat more confusing with respect to the location of appellant’s personal effects. Appellee testified appellant removed some of his clothing, jewelry and toiletries from the home, as well as an extra dining room set, but appellant testified his belongings were in the den, where he had been sleeping since January, 1989 (N.T., pp. 16-17; pp. 35-37). We do not find in these circumstances sufficient severance to constitute physical separation.

Nor does this Court find appellant’s actions evidenced a financial separation. The record indicates appellant paid all the bills associated with maintenance of the home and those given him by appellee, and continued to perform maintenance around the home. In addition, appellant purchased groceries for the home whenever he noticed any depletion. Moreover, as mentioned above by the trial court, appellee controls, without dispute from appellant, the balance of the couple’s joint checking account she transferred to her own individual account, monthly rental income of $200, and approximately $200 per month in room and board from the parties’ adult son. Whether or not appellee is forced to account to appellant in the future for the expenditure of funds later determined in the divorce action to be marital assets, we analyze these funds not for their potential as income to appellee, but rather as funds in which appellant has an interest, and which he allows to be used for the family’s maintenance.

As a result, we continue to find controlling Commonwealth v. George, 358 Pa. 118, 56 A.2d 228 (1948). In George, the Supreme Court decided that where

the husband provides a home, food, clothing and reasonable medical attention, he cannot be directed to pay a given stipend to the wife so that she may have it available for her own personal disposition. The method whereby a husband secures to his wife and family the necessities of life is not a proper subject for judicial consideration and determination in the absence of proof of desertion without cause or neglect to maintain.

Id., 358 Pa. at 124, 56 A.2d at 231.

Subsequently, this Court has cited with approval the rule set forth in George. Commonwealth ex rel. Glenn v. Glenn, 208 Pa.Super. 206, 222 A.2d 465 (1966); Scuro v. Scuro, 226 Pa.Super. 592, 323 A.2d 49 (1974); Commonwealth ex rel. Goldstein v. Goldstein, 271 Pa.Super. 389, 413 A.2d 721 (1979).

We, therefore, find no obvious neglect by appellant to maintain his wife and minor son, and thus it was error for the trial court to enter an Order for support for appellee.

In light of our finding, we need not address appellant’s second claim that even were an Order of support justified, the amount of support ordered was an abuse of the court’s discretion. However, we do find merit in this claim, inasmuch as at the time of the Order appellant was paying the vast majority of household expenses, medical bills and taxes, while appellee was receiving approximately $400 per month in rent and room and board, in addition to any funds appellee appropriated from appellant’s store business. Order vacated.

Dissenting opinion filed by WIEAND, J.

WIEAND, Judge,

dissenting.

I respectfully dissent. A common residence is not a bar to a support order where, as here, the parties in fact are living separate and apart. See: Biler v. Biler, 353 Pa.Super. 49, 508 A.2d 1261 (1986); Flynn v. Flynn, 341 Pa.Super. 76, 491 A.2d 156 (1985). See also: Mackey v. Mackey, 376 Pa.Super. 146, 545 A.2d 362 (1988).

In the instant case, although appellant-husband returned home several nights a week and slept on a couch in the den, the evidence was that he had filed an action for divorce, had removed his better clothing, had discontinued placing his pay check in the joint checking account, was not providing money for the purchase of food, and was living elsewhere three or four nights each week. Under these circumstances, I would hold that the order of support was proper.

The amount of the order, although substantial in view of other income available to appellee, did not constitute an abuse of discretion. Appellant was employed as a school teacher and earned weekly a net of four hundred fifty ($450.00) dollars. The order compelled him to pay the sum of one hundred thirty-three ($133.00) dollars per week for the support of his wife and forty-eight. ($48.00) dollars per week for the support of his minor child. This order compelled appellant to contribute less than fifty (50%) percent of his net earnings to the support of his unemployed wife and child and was not so excessive as to constitute an abuse of discretion.

I would affirm the order entered by the trial court.

      . The evidence was that an older son had been contributing fifty ($50.00) dollars per week to his mother, the appellee, as room and board and that the wife-appellee had been collecting rent of two hundred ($200.00) dollars per month from a trailer which was owned jointly by the parties.


author: HESTER, Judge:

text:
    575 A.2d 148
    COMMONWEALTH of Pennsylvania v. Victor M. MORALES, Appellant.
    Superior Court of Pennsylvania.
    Argued April 3, 1990.
    Filed May 31, 1990.

      Gary Lysaght, Lemoyne, for appellant.
    Julia A. Merl, Asst. Dist. Atty., Harrisburg, for the Com., appellee.
    Before CIRILLO, President Judge, and BECK and HESTER, JJ.
   HESTER, Judge:

Victor M. Morales appeals from the judgment of sentence entered in the Court of Common Pleas of Dauphin County on May 23, 1989, following its acceptance of his plea of guilty to various drug-related offenses. He was sentenced to a five-to-ten-year term of imprisonment and directed to pay both a fine and the costs of the prosecution. In this timely appeal, appellant questions the legality of his sentence. For the reasons set forth below, we find that this challenge is without merit and, accordingly, affirm.

The facts may be summarized as follows. On December 5, 1988, the Dauphin County Drug Task Force, pursuant to a warrant, searched appellant’s Harrisburg residence for drugs and other related material. During the course of that search, members of the task force discovered fifty-five pounds of marijuana, various items used to process and ingest it, and fifty-four doses of LSD. Shortly thereafter, appellant was arrested and charged with two counts of possession with intent to deliver and one count of possession of drug paraphernalia.

On May 23, 1989, appellant, pursuant to an agreement entered into with the Commonwealth, pled guilty to possession of drug paraphernalia, possession with intent to deliver in connection with the marijuana, and simple possession with respect to the LSD. Following its acceptance of the plea, the court sentenced him to a five-to-ten-year term of imprisonment and a $50,000.00 fine for possession with intent to deliver. In addition, it imposed two concurrent one-to-two-year terms of imprisonment on the remaining offenses and directed appellant to pay the costs of the prosecution. This appeal followed.

Appellant questions the legality of his sentence. In support of this challenge, he asserts that the term of imprisonment imposed in connection with the possession with intent to deliver count exceeded the maximum sentence authorized for that offense.

Initially, we note that The Controlled Substance, Drug, Device and Cosmetic Act (Act), 35 P.S. § 780-101 et seq., sets forth both specific drug offenses and their attendant penalties. Pursuant to § 780-113(a)(30) of the Act, it is unlawful for an unauthorized person to possess a controlled substance with the intent to deliver it. The term “controlled substance” includes marijuana within its definition. See 35 P.S. §§ 780-102 and 780-104(1)(iv). The maximum penalty for committing the crime of possession with intent to deliver in connection with marijuana is' a five-year term of imprisonment and a fine of $15,000.00. 35 P.S. § 780-113(f)(2).

Instantly, the trial court sentenced appellant to a five-to-ten-year term of imprisonment and a $50,000.00 fine for possessing marijuana with the intent to deliver it. Since this sentence clearly exceeds the maximum one authorized for that offense, our determination of its legality depends upon whether there is another statutory provision that both permits such punishment and supersedes 35 P.S. § 780-113(f)(2). Accordingly, we turn to the authority relied upon by the trial court.

In support of its sentence, the trial court relied upon 18 Pa.C.S. § 7508, which, in pertinent part, states (footnote omitted):

(a) General rule. — Notwithstanding any other provisions of this or any other act to the contrary, the following provisions shall apply:
(1) A person who is convicted of violating section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act, where the controlled substance is marijuana shall, upon conviction, be sentenced to a mandatory minimum term of imprisonment and a fine as set forth in this subsection:
(iii) upon conviction when the amount of marijuana involved is at least 50 pounds: five years in prison and a fine of $50,000.00 or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

Since appellant pled guilty to possession with intent to deliver in connection with fifty-five pounds of marijuana, it is clear that the provision utilized by the court was applicable to the present case. Accordingly, the trial court was required to sentence appellant to a minimum term of imprisonment of five to ten years and a fine of $50,000.00. Although the statute does not explicitly set forth the maximum authorized sentence in cases to which it is applicable, we find that since “a minimum sentence of confinement ... shall not exceed one-half of the maximum sentence imposed,” 42 Pa.C.S. § 9756(b), it implicitly sets forth a maximum sentence of at least ten years imprisonment and a fine of $100,000.00.

As the above analysis demonstrates, the maximum sentences provided for in 35 P.S. § 780-113(f)(2) and 18 Pa.C.S. § 7508(a)(1)(iii) are irreconcilable. Since 18 Pa.C.S. § 7508 was enacted in 1988, approximately two years after the adoption of amendments to the penalty provisions of the Act, we conclude that 18 Pa.C.S. § 7508 prevails. See 1 Pa.C.S. § 1935 (when two statutes passed by the same general assembly are irreconcilable, the one later in date prevails), and 1 Pa.C.S. § 1936 (same with respect to statutes passed by different general assemblies). Accordingly, appellant’s challenge to the legality of his sentence must fail.

Judgment of sentence affirmed.


text:
    575 A.2d 150
    COMMONWEALTH of Pennsylvania v. Robert G. SMITH, Sr., Appellant.
    Superior Court of Pennsylvania.
    Submitted Feb. 26, 1990.
    Filed June 4, 1990.

      Vincent J. Quinn, Chief Public Defender, Lancaster, for appellant.
    Henry S. Kenderdine, Asst. Dist. Atty., Lancaster, for Com., appellee.
    Before ROWLEY, OLSZEWSKI and TAMILIA, JJ.
   OLSZEWSKI, Judge:

This is an appeal from a judgment of sentence. Appellant entered a plea of guilty to one count of robbery, 18 Pa.C.S.A. § 3701(a)(1)(h), on January 6, 1989, in connection with the August 9, 1988, robbery of the Meridian Bank branch office at 30 N. Queen Street, Lancaster, Pennsylvania. Appellant was sentenced on February 28, 1989, to a term of imprisonment of not less than six years, eight months nor more than twenty years, plus a fine, costs, and restitution. Appellant filed a timely motion to modify sentence, which was dismissed, and a timely notice of appeal. Appellant raises two issues for our consideration, both relating to his sentence. We will deal with these issues seriatim. Finding no merit to either issue, we affirm the judgment of sentence.

Appellant’s first issue is “Whether this court should review the discretionary aspects of the lower court’s sentence even if this court finds that the Pa.R.A.P. 2119(f) statement fails to state a substantial question that the sentence is not appropriate under the sentencing code since 42 Pa.C.S.A. § 9781 violates Article V, Section 9 of the Pennsylvania Constitution?” Section 9781(b) of the Sentencing Code, 42 Pa.C.S.A. § 9781(b), states:

The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.

Article V, Section 9 of the Pennsylvania Constitution states: There shall be a right of appeal in all cases to a court of record from a court not of record; and there shall also be a right of appeal from a court of record or from an administrative agency to a court of record or to an appellate court, the selection of such court to be as provided by law; and there shall be such other rights of appeal as may be provided by law.

While Article V, Section 9 of the Pennsylvania Constitution grants a right of appeal, it does not state that the appeal must necessarily deal with all aspects of the case below. The legislature and courts of this Commonwealth have provided a workable scheme for appellate review of the discretionary aspects of sentencing. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). Any appellant who raises a substantial question whether the sentence imposed is inconsistent with a specific provision of the Sentencing Code or contrary to the norms underlying the sentencing process will be entitled to allowance of appeal, while appellants who cannot raise a substantial question will not. Commonwealth v. Losch, 369 Pa.Super. 192, 535 A.2d 115 (1987). This limitation on one aspect of a criminal appeal is a reasonable regulation concerning the right to appeal; we hold that it does not violate Article V, Section 9 of the Pennsylvania Constitution.

Appellant’s second issue is “Whether the sentence of the lower court was so manifestly excessive as to constitute an abuse of discretion where the defendant received a sentence at the top of the aggravated range of the sentencing guidelines?” Appellant was sentenced to a term of imprisonment of not less than six years, eight months nor more than twenty years, plus fines, costs and restitution. The six-year, eight-month minimum term of imprisonment was the harshest sentence the court could have imposed for appellant’s guilty plea to robbery, a first-degree felony, under the sentencing guidelines. Appellant’s arguments, in his Pa.R.A.P. 2119(f) statement, concern only the weight the trial court gave to legitimate sentencing factors. This alone does not raise a substantial question. Commonwealth v. Osteen, 381 Pa.Super. 120, 552 A.2d 1124 (1989). We therefore deny allowance to appeal the discretionary aspects of sentence.

As we find no merit to either issue raised on appeal, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . Because of its nature, this question could not have been raised in the lower court. We therefore reach this issue despite the fact that it was not raised below.

      . We recognize that in some cases, such as appellant’s, the only questions appellant presents on appeal will relate to the discretionary aspects of sentencing. While denial of allowance of appeal may prevent such an appellant from having complete appellate review of the merits of his complaints, it strips an appellant of his right to appeal no more than does strict enforcement of rules of waiver and jurisdictional requirements. While the Constitution grants the right to appeal, the legislature and the courts have the power to enact reasonable regulations which control the exercise of that right. See Sayres v. Commonwealth, 88 Pa. 291 (1879). For a contrary view, see Commonwealth v. Laskaris, 385 Pa.Super. 339, 561 A.2d 16 (1989) (Del Sole, J., concurring); Commonwealth v. Barnes, 388 Pa.Super. 327, 565 A.2d 777 (1989) (Del Sole, J., concurring).

      . We note, however, that the trial court gave a detailed statement of the reasons for its sentence, and was fully informed by a pre-sentence report. See Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988).


author: BECK, Judge:

text:
    575 A.2d 574
    COMMONWEALTH of Pennsylvania, Appellant, v. Jeffrey CHASE.
    Superior Court of Pennsylvania.
    Argued Nov. 28, 1989.
    Filed April 23, 1990.
    Reargument Denied June 25, 1990.

      Linda Perkins, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Jeffrey Shender, Philadelphia, for appellee. ^
    Before BROSKY, BECK and CAVANAUGH, JJ.
   BECK, Judge:

This is an appeal by the Commonwealth from a trial court order suppressing evidence seized from the defendant. We find that the police had probable cause to arrest the defendant, and that the search and seizure of evidence in the possession of the defendant was proper. Accordingly, we reverse the suppression order.

The following facts were established by the uncontradicted suppression hearing testimony of Lieutenant Michael Morrin of the Philadelphia Police Narcotics Unit. At approximately 5:30 P.M. on July 9, 1987, Lieutenant Morrin was stationed as a back-up for Brown, a fellow officer who was acting in an undercover capacity in the vicinity of Orthodox Street in Philadelphia. Morrin received a radio transmission from Brown in which Brown stated that he “had just purchased narcotics from a black man wearing a blue shirt in the 1900 block of Orthodox, at the corner of Tackawanna and Orthodox.” At the time of this broadcast, Morrin was at a location a few blocks away from Brown. In response to the broadcast, Morrin, accompanied by other members of the Narcotics Unit, drove his vehicle to the 1900 block of Orthodox Street. Upon arrival, Morrin observed the appellee Jeffrey Chase, a black man who was dressed in a blue shirt, standing at the corner of Tackawanna and Orthodox. Morrin also observed another black man with a blue shirt on the corner. Morrin exited his vehicle and announced “Police,” whereupon Chase ran west on Orthodox Street. Morrin pursued Chase. He stated at the suppression hearing that he did not know whether the other man had also fled.

Upon overtaking Chase, Morrin noticed that Chase was holding a tennis ball in his hand. The tennis ball had a two to three inch slit. Morrin removed the tennis ball from Chase’s hand in order to conduct a frisk; he squeezed the ball, peered inside, and observed packets of white powder sealed with blue tape. A subsequent search of appellee revealed that he was carrying $178 in cash. The cash and the tennis ball were confiscated, and the defendant was charged with felony drug offenses.

Counsel for appellee filed a motion to suppress the evidence seized. On March 6, 1989, the trial court held a suppression hearing at which Morrin testified for the Commonwealth. The defense called no witnesses. At the conclusion of the hearing, the court granted the suppression motion. The Commonwealth filed a motion for reconsideration, and on March 31, 1989, the court vacated its prior order. On April 13, 1989, after entertaining additional argument by counsel, the court again ordered the evidence suppressed. The Commonwealth filed a timely notice of appeal from the April 13th order with this court. Since the Commonwealth has certified in good faith that the suppression order if given effect would substantially handicap or terminate its prosecution, we have jurisdiction to entertain this appeal. Commonwealth v. Toanone, 381 Pa.Super. 336, 339, 553 A.2d 998, 999 (1989).

Our standard of review of the grant of a suppression motion is well established.

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant’s witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court’s findings of fact if supported by the record, we are not bound by the court’s legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Commonwealth v. Lagana, 517 Pa. 371, 375-76, 537 A.2d 1351, 1353-54 (1988).

The trial court concluded that Chase was under arrest at the time he was initially stopped by the police, and that this arrest was without probable cause. The Commonwealth contends that Officer Morrin did have probable cause to arrest Chase, even prior to the search of the tennis ball. Although this case is a close one, we agree with the Commonwealth’s legal analysis as to probable cause. Accordingly, the inspection of the tennis ball may be justified as a search incident to a lawful arrest. See Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969).

The Commonwealth also argues that the inspection of the tennis ball was permissible under the stop and frisk doctrine of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See generally Commonwealth v. Davidson, 389 Pa.Super. 166, 566 A.2d 897 (1989). We need not reach the merits of the Commonwealth’s alternative theory.

We begin our review by setting forth the standard for probable cause to arrest.

The established test for determining whether an officer had sufficient probable cause to legally justify a warrant-less arrest involves looking at the facts and circumstances confronting the officer at the time of the arrest. As our Supreme Court noted in Commonwealth v. Travaglia, 502 Pa. 474, 484, 467 A.2d 288, 292 (1983), cert. denied, Lesko v. Pennsylvania and Travaglia v. Pennsylvania, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984),
A police officer may arrest without a warrant where there is probable cause to believe that a felony has been committed and that the arrestee is the felon. Probable cause exists where the facts and circumstances within the knowledge of the officer are reasonably trustworthy and sufficient to warrant a person of reasonable caution in believing that the arrestee has committed the offense.
Furthermore, we note that the standard of probable cause must be applied to the totality of the circumstances facing the police. Commonwealth v. Kazior, 269 Pa.Super. 518, 410 A.2d 822 (1979). Thus,
[w]hen we examine a particular situation to determine if probable cause exists, we consider all the factors and their total effect, and do not concentrate on each individual element____ We also focus on the circumstances as seen through the eyes of the trained officer, and do not view the situation as an average citizen might____ Finally, we must remember that in dealing with questions of probable cause, we are not dealing with certainties. We are dealing with the factual and practical considerations of everyday life on which reasonable and prudent men act. This is not the same ‘beyond a reasonable doubt’ standard which we apply in determining guilt or innocence at trial.
Commonwealth v. Simmons, 295 Pa.Super. 72, 83, 440 A.2d 1228, 1234, quoting Commonwealth v. Devlin, 221 Pa.Super. 175, 178, 289 A.2d 237, 239 (1972) (emphasis in original).

Commonwealth v. Ellis, 354 Pa.Super. 11, 17-18, 510 A.2d 1253, 1256 (1986) (en banc).

Applying this standard, we find that the police had probable cause to arrest the appellee. The arresting officer received a radio broadcast from his partner stating that the partner had just purchased narcotics from a black man in a blue shirt at a particular street corner. Upon responding to the report, the officer observed appellee, a man who matched the description of the drug dealer, standing at the precise location where the drug deal had taken place. When the arresting officer announced “Police”, appellee’s immediate reaction was to turn and flee. Although flight, in and of itself, does not supply probable cause to arrest, flight in combination with other factors may reasonably indicate that an arrestee has committed a criminal offense. See, e.g., Commonwealth v. Woodson, 342 Pa.Super. 392, 493 A.2d 78 (1985) (finding probable cause for arrest of suspect matching description of “young black man wearing a beige sweater or shirt” who evaded police and offered unsubstantiated explanation for his presence near scene of crime); Commonwealth v. Williams, 317 Pa.Super. 456, 464 A.2d 411 (1983) (finding probable cause for arrest of suspect matching description of “black man with mustache” seen near time and place of crime who repeatedly fled from police). Under all the circumstances of this case, including the close proximity of the time and place of the drug transaction to the time and place of arrest, we conclude that appellee’s arrest was not illegal.

Appellee argues that the description of the drug dealer as a black man in a blue shirt was far too general to provide a basis for probable cause. The leading case on impermissibly broad descriptions is Commonwealth v. Jackson, 459 Pa. 669, 331 A.2d 189 (1975). In Jackson, witnesses to a shooting in West Philadelphia described the assailants as two Negro males in dark clothing, between 5’6” and 5’8” in height, with medium builds, medium to dark complexions and semi-bush haircuts. Police went throughout the neighborhood in the hours after the slaying arresting all people in the vicinity who roughly matched this description. In all some 15 to 20 people were taken into custody. The defendant was arrested approximately one hour after the shooting and one block away from the scene of the crime, even though he wore light colored trousers and no shirt rather than the described dark clothing. In reversing the defendant’s conviction, the Court condemned the “dragnet arrests” conducted by the police, and stated that “descriptions applicable to large numbers of people will not support a finding of probable cause.” Id., 459 Pa. at 674, 331 A.2d at 191.

This case is clearly distinguishable from Jackson. The most significant aspect of the case sub judice is that the suspect who matched the general physical description was sighted by the police at the same intersection where the crime occurred and in the immediate aftermath of the crime. We do not deal here with a police manhunt for all black men in blue shirts throughout the neighborhood. Rather, the general description of a black man in a blue shirt was qualified by the precise locality of and the timing of the appellee’s initial contact with the arresting officer. The profile that appellee matched was of a black man in a blue shirt standing at the corner of Tackawanna and Orthodox at about 5:30 P.M. on July 9, 1987. These characteristics, when combined with appellee’s sudden flight from the police, are sufficient for probable cause.

Appellee’s brief cites additional cases condemning as illegal detentions based upon vague descriptions. In none of these cases did an arrest occur at the same location as the crime. See Commonwealth v. Fassett, 496 Pa. 529, 437 A.2d 1166 (1981) (defendant stopped nine hours after robbery and eight miles from crime scene); Commonwealth v. Berrios, 437 Pa. 338, 263 A.2d 342 (1970) (defendants stopped twenty minutes after shooting and three blocks from crime scene); Commonwealth v. Sams, 465 Pa. 323, 350 A.2d 788 (1976) (suspects described only as Negro males fleeing south on Eleventh Street; defendant arrested one and a half blocks from scene of killing running south on Juniper Street); Commonwealth v. Anderson, 360 Pa.Super. 466, 520 A.2d 1184 (1987) (defendant arrested two hours after killing and two blocks from crime scene); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978) (defendants arrested at unspecified time after robbery near area where suspects had fled). Appellee’s reliance on these authorities is misplaced.

Appellee also asserts that probable cause to arrest was lacking because he was not the only person who matched the police description. Officer Morrin testified that he observed another black man with a blue shirt standing at the same intersection as the appellee. When appellee fled, Morrin focused his attention on apprehending the appellee. Morrin was unable to say whether the other man remained at the intersection. In granting the suppression motion, the trial court emphasized that the Commonwealth had not affirmatively proven that appellee was the only person who ran. The court then reasoned as follows:

Well, if I understand the Commonwealth’s argument, the Commonwealth or the police officers would have been justified when they reached the corner and found two men with blue shirts, two black men with blue shirts, and they both had fled, that the Commonwealth would have been justified in arresting both of them.
But it seems to me that that is precisely the situation that the law seeks to avoid where you can arrest more than one person on the theory that you have probable cause to think they are both guilty. And it seems to me that you cannot have probable cause to think that both are guilty when it is clearly a crime committed only by one person.

We note initially that this is not a case in which the record establishes that a policeman observed two identical individuals simultaneously fleeing the crime scene. It is uncontested that Officer Morrin saw the appellee run from the intersection. The record is silent as to the physical movements of the other man. A policeman who is reacting to the imminent escape of a suspected felon may not have ample opportunity to study the movements of other persons in the area. In assessing probable cause, the question is not whether the Commonwealth can demonstrate with certainty that the defendant took an action that was not also taken by some other individual. The question is whether the arresting officer, based upon the limited information available to him at the time of the arrest, had sufficient reason to believe that the arrestee had committed the offense.

Moreover, we must take issue with the trial judge’s commentary on probable cause. We do not agree that the police could never have probable cause to arrest two persons if only one person has committed the crime. “While the law requires that probable cause have a fairly narrow focus, thereby precluding, for example, dragnet operations, we do not believe that the focus must in all situations narrow down to a single suspect____” Commonwealth v. Bunch, 329 Pa.Super. 101, 114, 477 A.2d 1372, 1379 (1984). Under some circumstances, there may be probable cause to believe that either of two suspects was the perpetrator of the criminal act.

The Pennsylvania Supreme Court’s decision in Commonwealth v. Sangricco, 475 Pa. 179, 379 A.2d 1342 (1977) is instructive. In that case, the victim died of a gun shot wound while at the apartment of Sherilyn Grits, his estranged wife. Grits and her boyfriend, the defendant George Sangricco, were both present when the victim was shot. Grits and Sangricco both insisted that the victim had shot himself, even though the victim was left handed and. the wound had been inflicted on the right side of the head. The police obtained a search warrant authorizing them to subject both Grits and Sangricco to neutron activation analysis, a technique designed to reveal if a suspect has recently fired a gun by examining chemical residues on the hands. Sangricco was eventually convicted of voluntary manslaughter. On appeal, Sangricco argued that the warrant had been issued without probable cause. The Court rejected this argument on the ground that the police acted reasonably in suspecting that either Sangricco or Grits was involved in the homicide. Thus, the police had probable cause to obtain a warrant for the search of two suspects even though there had been only one gunman.

This court’s decision in Commonwealth v. Bunch, supra, provides further guidance regarding probable cause determinations. In Bunch, a witness observed three black men escaping in a getaway car following a robbery. A few hours later, a state trooper stopped a car that matched the witness’ description. The car had a black male driver and three black male passengers. The trooper arrested all four black men, even though there was good reason to believe that one of the four was innocent. We held that the presence of an innocent man did not deprive the trooper of probable cause to arrest. In addressing this issue, we quoted the following commentary with approval:

Probable cause may justify the arrest of more than one person. If, for example, a policeman sees A and B bending over a dead man and each accuses the other of killing the victim, there is probable cause for the arrest of either or both and the arrest of A does not preclude the arrest of B. Similarly, if A is found one block north of a recently robbed bank and matches the description of the robber, the arrest of A does not preclude the subsequent arrest of B who also matches the description and is found one block south of the bank.
In either case, it would be reasonable for the police to arrest both A and B on probable cause even though they believe that only one of them committed the crime. The purpose of the arrest, however, is not the traditional and statutory purpose of an arrest: to charge the arrestee with crime. Rather, it is to initiate a short-term process of sorting out, usually on the scene, to determine which person should be charged with crime, i.e., arrested in the full sense of the word. Thus the initial ‘arrest’ is really in the nature of a stop or detention rather than a true arrest.
Although multiple arrests may be reasonable in certain circumstances, the law does not allow dragnet arrests of many suspects for investigation of each. Factors to separate the reasonable from the unreasonable have been well stated elsewhere:
“Other factors may be important in determining the validity of multiple arrests in a given situation. The degree of certainty that the actual offender is within the group would seem relevant, along with the size of the group. The seriousness of the offense may affect the result. Also of importance is the need for immediate action, as where two persons of unknown identity are running from the scene of a crime. The available means of postarrest selection may be a deciding factor. For example, the arrest of three suspects to enable a witness to view them in a lineup may be less objectionable than the arrest of the same number for interrogation____” (Footnotes omitted) W. LaFave, Arrest, 262 (1975).

Bunch, 329 Pa.Super. at 116-117, 477 A.2d at 1380 (emphasis added) (quoting State v. Jordan, 36 Or.App. 45, 49-52, 583 P.2d 1161, 1163-64 (1978), aff'd, 288 Or. 391, 605 P.2d 646, cert. denied, 449 U.S. 846, 101 S.Ct. 132, 66 L.Ed.2d 56 (1980) (footnotes omitted)).

We find that in the case sub judice, the arresting officer had probable cause to arrest the appellee notwithstanding the fact that another black man in a blue shirt may also have run from the intersection where the drug buy occurred.

The suppression order is hereby reversed and the case remanded for trial. Jurisdiction is relinquished.

      . At the preliminary hearing, Officer Morrin estimated that the total time from the drug buy to his arrival at the corner of Tackawanna and Orthodox was three minutes. Officer Morrin was not asked for a time estimate at the suppression hearing. However, according to his uncontested suppression hearing testimony: 1) he was acting as backup to the undercover policeman; 2) the undercover policeman radioed that the drug buy had just been completed; 3) as a result of this information, he drove to the scene of the crime; and 4) he was only a few blocks away from his destination. Viewing all of the evidence adduced at the suppression hearing in the light most favorable to the appellee as the prevailing party at the suppression hearing, and allowing the appellee the benefit of all reasonable inferences from the evidence, we must nonetheless conclude that Officer Morrin arrived at the intersection shortly after the drug buy.


text:
    575 A.2d 579
    Melvin LEVINE and Fay Levine, Appellants, v. Marvin I. ROSEN, M.D., Appellee.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed April 27, 1990.
    Reargument Denied June 25, 1990.

      Charles S. Lieberman, Philadelphia, for appellants.
    Audrey L. Jacobsen, Philadelphia, for appellee.
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

Appellants Melvin and Fay Levine, plaintiffs below, appeal a judgment in favor of defendant, Dr. Martin Rosen, in this medical malpractice action. Appellants object to three points of the jury charge: the instructions regarding contributory negligence, irrelevant considerations, and the “two schools of thought” doctrine. We find that the trial court did not abuse its discretion in charging the jury with respect to contributory negligence; however, we find that the other two instructions were erroneous. We reverse the judgment and remand for a new trial.

Appellee is a doctor who practices obstetrics and gynecology. Appellant Fay Levine was his patient from the early 1960’s until the early 1980’s. In July 1980, Mrs. Levine visited appellee. Appellee’s records indicate that this was a routine visit and that Mrs. Levine had no gynecologic complaints; however, Mrs. Levine testified that she visited him because she was concerned about a sudden inversion and discoloration of her right nipple. Appellee examined Mrs. Levine and found nothing wrong with her. He did not recommend any further testing. Mrs. Levine visited appellee again in October 1981. Again, the visit was listed as routine. Appellee found nothing abnormal and did not order testing.

In December 1981, Mrs. Levine had mammography performed on her own initiative. The mammogram revealed a mass in the breast. A biopsy confirmed the presence of a small malignant tumor. In January 1982, Mrs. Levine underwent radical mastectomy. Upon pathology, her condition was diagnosed as infiltrating ductal adenocardinoma with metastasis to four out of twenty-four lymph nodes.

Appellants filed this medical malpractice action, alleging that appellee negligently failed to order the necessary tests and negligently failed to detect the cancer. The case was tried before a jury. In its charge to the jury, the trial court gave instructions regarding contributory negligence, the “two schools of thought” doctrine, and irrelevant considerations. Upon appellee’s objection, the trial court recalled the jury and altered the irrelevant considerations instruction to reflect recent changes in federal law. After deliberation, the jury found that appellee was not negligent. The trial court entered judgment in favor of appellee/defendant. This appeal followed.

1. Appellants assert that a charge regarding contributory negligence was inappropriate, because there was no evidence presented regarding contributory negligence. We disagree. When there is any evidence of contributory negligence, the trial court must instruct the jury appropriately, no matter how strong the evidence to the contrary may be. McCullough v. Monroeville Home Assn., 270 Pa.Super. 428, 411 A.2d 794 (1979).

In the present case, a few facts were presented which suggested contributory negligence. According to appellee’s records, Mrs. Levine did not report her symptoms to her doctor. The record also shows that Mrs. Levine frequently scheduled mammography without appellee’s prompting. Although this evidence is minimal, it is sufficient to justify a charge regarding contributory negligence. Accordingly, the trial court did not err in giving this instruction.

2. Appellants also assert that the trial court erred in telling the jury about a federal law requiring reporting of judgments. We agree.

In the course of instructing the jury, the trial court gave the standard instruction regarding irrelevant considerations. Defense counsel objected, noting that federal law has changed since the standard instruction was approved. Under current federal law, the outcome of this case might have some effect on appellee’s ability to practice his profession. The trial court, noting that federal law is supreme, recalled the jury and instructed them regarding this change in federal law.

The trial court erred in correcting its charge. The corrected charge was an accurate statement of federal law; however, it undermined the irrelevant considerations instruction. The change in federal law is entirely irrelevant to the merits of this medical malpractice action. It has no bearing on appellee’s negligence or liability.

The additional charge may have induced the jury to consider matters which were irrelevant to the merits of this action. This constituted a fundamental error in the instructions. These irrelevant considerations may have contributed to the verdict. Accordingly, we must reverse the judgment of the trial court and remand for an new trial. See, e.g. Jones v. Montefiore Hospital, 494 Pa. 410, 419, 431 A.2d 920, 925 (1981).

3. Although the previous issue disposes of this appeal, we will address the merits of the final issue for the trial court’s guidance on remand. Appellants argue that the trial court erred in instructing the jury with regard to the “two schools of thought” doctrine. We find that the instruction was not entirely accurate. The instruction should be modified on remand.

The “two schools of thought” doctrine provides that a doctor will not be liable for medical malpractice if he follows a course of treatment supported by reputable, respected, and reasonable medical experts. Furey v. Thomas Jefferson University Hospital, 325 Pa.Super. 212, 472 A.2d 1083 (1984). A lay jury cannot decide which medical procedure is appropriate where reasonable medical professionals differ. Trent v. Trotman, 352 Pa.Super. 490, 508 A.2d 580 (1986).

Recent cases have limited the applicability of the “two schools of thought” doctrine. In Morganstein v. House, 377 Pa.Super. 512, 547 A.2d 1180 (1988), this Court held that a “two schools of thought” instruction was not appropriate where the negligence alleged was failure to diagnose the patient’s unstable angina. All doctors agreed on the appropriate treatment of unstable angina, but they disagreed on whether the patient’s symptoms and EKG readings disclosed the illness. Similarly, in D’Angelis v. Zakuto, 383 Pa.Super. 65, 556 A.2d 431 (1989), this Court held that the “two schools of thought” instruction was not appropriate where the negligence alleged was failure to diagnose pneumonia. Experts did not disagree on the proper treatment, but only on whether the defendant should have recognized the illness.

In the present case, there are two possible sources of negligence: the doctor’s failure to perform a routine, yearly-mammogram, and the doctor’s failure to recognize symptoms of breast cancer. Under Morganstein and D’Angelis, the former supports a “two schools of thought” instruction; the latter does not.

The evidence shows that reasonable, reputable medical experts do not agree on how often routine mammograms should be performed. The American Cancer Society recommends yearly mammography, while the American College of Obstetricians and Gynecologists recommends “regular” mammography without specifying frequency. If the evidence supports a conclusion that the doctor’s only negligence was failure to perform a routine mammogram, then the two schools of thought instruction is appropriate.

On the contrary, if the evidence of negligence relates only to the doctor’s failure to recognize the patient’s symptoms and order further testing, then an instruction on two schools of thought is not appropriate. If the evidence potentially supports either conclusion, then the trial court should instruct the jury regarding two schools of thought, but should make this distinction clear in its instructions. The two schools of thought doctrine does not relieve a doctor from liability for failure to recognize symptoms of an illness.

Judgment reversed and remanded for a new trial in accordance with this opinion. Jurisdiction is relinquished.

      . The court charged:
      Now, medical malpractice cases are civil actions for damages and nothing more. The sole issue is whether the plaintiff has suffered injuries as a result of the defendant’s negligence, and is thus entitled to monetary compensation for those injuries.
      This case does not involve punishment of the defendant or even criticism of his professional abilities beyond the fact of this matter.
      The claim does not involve the defendant’s reputation, his medical practice or his rights as a licensed physician. Therefore, no thought should be given to these irrelevant considerations in reaching a verdict in this case.
      N.T. 10/26/88 at 67.

      . The Federal Law Health Care Quality Improvement Act of 1986, 42 U.S.C.A. §§ 11101, 11131 and 11134, require a doctor to report any payment made in settlement or satisfaction of a medical malpractice claim. This information is generally confidential, but can be made available to hospitals under certain conditions.


author:
JOHNSON, Judge:
      KELLY, Judge,

text:
    575 A.2d 582
    COMMONWEALTH of Pennsylvania, Appellant, v. Emma MORRIS.
    Superior Court of Pennsylvania.
    Argued Jan. 17, 1990.
    Filed May 10, 1990.

      Laurie Magid, Asst. Dist. Atty., Philadelphia,- for Com.
    Helen A. Marino, Philadelphia, for appellee.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from the order dismissing the criminal complaint against appellee Emma Morris for lack of jurisdiction on the ground that a state prosecution under state theft statutes is preempted by a penalty provision of the Social Security Act, 42 U.S.C. § 408. We reverse.

On August 18, 1987 Emma Morris was charged in the Municipal Court of Philadelphia with violating 18 Pa.C.S. § 3922, theft by deception, and 18 Pa.C.S. § 3927, theft by failure to make required disposition of funds. The complaint alleged that from November 3, 1981 through April 1, 1984, defendant kept, and used as her own, Social Security-benefit checks totaling $9,622.26 that were intended for the maintenance of her son, Danny Morris, at the Norristown State Mental hospital pursuant to Title II of the Social Security Act (Federal Old-Age, Survivors, and Disability Insurance Benefits), 42 U.S.C. §§ 401 et seg. Municipal Court Judge Louis J. Presenza granted defendant’s pretrial motion to dismiss, holding that the federal preemption doctrine prevented any state prosecution for the theft of Social Security benefit checks. The Commonwealth appealed the order of the Municipal Court to the Court of Common Pleas. On January 27, 1989 the Honorable Anthony DeFino denied the Commonwealth’s appeal and affirmed the decision of the Municipal Court. This timely appeal follows.

The Commonwealth presents a single question for our consideration, whether 42 U.S.C. § 408 (of the codification of Title II of the Social Security Act), which imposes a penalty for improperly obtaining Social Security benefits, preempts state criminal prosecutions under the above-cited state theft statutes based upon the same conduct. We hold that it does not. Section 408 provides:

Whoever-
(e) having made application to receive payment under this title [42 USCS §§ 401 et seq.] for the use and benefit of another and having received such a payment, knowingly and willfully converts such a payment, or any part thereof, to a use other than for the use and benefit of such other person;
shall be guilty of a felony and upon conviction thereof shall be fined not more than $5,000 or imprisoned for not more than five years, or both.

It is basic to our federal system that the states possess sovereignty concurrent with that of the federal government, subject only to limitations imposed by the Supremacy Clause, U.S. Const. art. VI, cl. 2. Tafflin v. Leavitt, — U.S. -, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). The notion of coexisting federal and state sovereignty can best be described as:

[What] is referred to by many as “Our Federalism”.... What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States.

Younger v. Harris, 401 U.S. 37, 44, 91 S.Ct. 746, 750-751, 27 L.Ed.2d 669, 675-676 (1971) (Black, J. for the court). The principle of preemption, which derives from the Supremacy Clause, invalidates only those state laws which “interfere with, or are contrary to” federal law. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 712, 105 S.Ct. 2371, 2375, 85 L.Ed.2d 714, 721 (1985). Gibbons v. Ogden, 9 Wheat 1, 211, 6 L.Ed. 23 (1824) (Marshall, C.J.).

Because it is the province of Congress to enact legislation, our sole task in determining whether a federal statute preempts a state law or action is to ascertain Congressional intent. California Federal Savings and Loan Association v. Guerra, 479 U.S. 272, 280, 107 S.Ct. 683, 689, 93 L.Ed.2d 613 (1987), cited in Gingold v. Audi-NSU-Auto Union, A.G., 389 Pa.Super. 328, 341, 567 A.2d 312, 318 (1989). Under our federalism, the states have the principal responsibility for defining and prosecuting crimes. Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959). Therefore, the penalty provision of the Social Security Act at issue here is subject to a presumption that Congress did not intend by its passage to preempt a state’s enforcement of its criminal law:

When Congress legislates in a field traditionally occupied by the States, ‘we start with the assumption that the historic police powers of the States were not to be super-ceded by [a] Federal Act unless that was the clear and manifest purpose of Congress.’

California v. ARC America Corporation, 490 U.S. 93, -, 109 S.Ct. 1661, 1665-1666, 104 L.Ed.2d 86, 94 (1989) (citations omitted), quoted in Gingold, 389 Pa.Super. at 340, 567 A.2d at 319.

With this presumption as a foundation, we must now inquire into whether Congress intended preemption either by express statement or by evidencing an intent to occupy the field, leaving no room for state regulation. Pacific Gas & Electric v. Energy Resources Commission, 461 U.S. 190, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). Even if Congress has not entirely displaced state regulation in a given area, state law is preempted if the state law conflicts with federal law so that compliance with both is a physical impossibility. California v. ARC America Corporation, 490 U.S. 93, 109 S.Ct. 1661, 104 L.Ed.2d 86 (1989).

There is, as the trial court correctly found, no express statement of intent to preempt state law in the section at issue. Neither did the court find that compliance with both state and federal laws would be a physical impossibility; thus, there exists no conflict with state law. Rather, the trial court decided that the federal penalty provision preempts and thus bars a state criminal prosecution because “the scheme of federal regulation in the area of social security is so pervasive as to make it reasonable for this court to infer that Congress left no room for states to supplement it in any manner.” Opinion, July 19, 1989 at 5 (emphasis by trial court). This conclusion is error in two respects. First, the United States Supreme Court does not consider the mere fact that Congress enacted a comprehensive legislative scheme to be sufficient evidence that Congress intended to preempt state law in that area:

[T]he subjects of modern social and regulatory legislation often by their very nature require intricate and complex responses from the Congress, but without Congress necessarily intending its enactment as the exclusive means of meeting the problem.

Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. at 717, 105 S.Ct. at 2377, 85 L.Ed.2d at 723-724, quoting New York State Department of Social Services v. Dublino, 413 U.S. 405, 415, 93 S.Ct. 2507, 2514, 37 L.Ed.2d 688, 696 (1973); see 101 Harvard L.Rev. 535 (December 1987), Getting Away with Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents.

Most important, the trial court need not have inferred Congressional intent. In 1972, Congress enacted 42 U.S.C. § 1395nn, a penalty provision to cover payments made under Title XVIII, Health Insurance for the Aged and Disabled (Medicare), and 42 U.S.C. § 1396h, a penalty provision to cover payments made under Title XIX, Grants to States for Medical Assistance Programs (Medicaid). Congress employed the same language used in Section 408 in both of these new penalty provisions. Significantly, Congress made it clear, in a committee report on the new penalty provisions, that it intended for these to have the same effect as the existing penalty provisions under the Social Security Act. See H.R.Rep. No. 92-231, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. and Admin. News, 4989, 5176. Section 408 was an existing penalty provision.

In the report, Congress addressed the preemption question for the proposed provisions by stating that these new penalty provisions under Medicare and Medicaid “would be in addition to and not in lieu of any other penalty provisions in state or federal law.” H.R.Rep. No. 92-231, 92nd Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. and Admin. News 5094. Given that the new provisions were to have the same effect as pre-existing Section 408 and that they employed the same language, Congress gives us no basis upon which to conclude that it intended Section 408 to preempt state criminal prosecutions while the new provisions would not.

The legislative history further demonstrates that Congress intended for the states to take a large measure of responsibility for the programs established by the Social Security Act. “The intent underlying the federal scheme,” Hillsborough County, 471 U.S. at 714, 105 S.Ct. at 2375, 85 L.Ed.2d at 722, is to share the field of public assistance with the states. The heart of the Social Security Act is the provision of federal funding to aid, not usurp, state involvement in the protection of needy persons:

These programs are state programs, initiated by the states and administered by the states and communities. They are based on the sound concept that the state and local communities can best determine the actual needs of individuals and administer programs of assistance to them.

Social Security Amendments of 1957-60, Statement by Arthur S. Fleming, Secretary of Health, Education and Welfare, before the Senate Committee on Finance, August 8, 1958, p.5. And again:

One of the fundamental concepts of this program has been that the separate states, not the Federal Government, should determine the scope of the program, set standards of need and eligibility, and actually operate the program directly or in cooperation with local agencies.

Social Security Amendments of 1957-60, Office Memorandum of Victor Christgau, Director of the Bureau of Old-Age and Survivors Insurance, June 16, 1958, page 6.

The substance of the Social Security Act bears this out. The act relies upon extensive state participation in most federal benefit programs. It is especially important that the Act includes state participation in disability determinations, a key aspect of the program specified in Title II. See 42 U.S.C. § 418, Voluntary Agreements for coverage of State and local employees, and 42 U.S.C. § 421, Disability determinations. This is the title that contains the allegedly preemptive statute in question, § 408.

We find support for our conclusion in cases which address preemption of state law by the Social Security Act generally. For instance, Title IX of the Act, the Federal Unemployment Tax Act, 42 U.S.C. §§ 501 et seq., has been held not to preempt state unemployment compensation to strikers. New York Telephone Company v. New York State Department of Labor, 440 U.S. 519, 99 S.Ct. 1328, 59 L.Ed.2d 553 (1979). In State of Washington v. Bowen, 815 F.2d 549 (9th Cir.1987) the court held that because the Medicaid program consists of coordinated state and federal efforts that exist within a complementary administrative framework, agency regulations for determining a married person’s income do not preempt state community property law. The supreme court in Dublino, supra, held that because the Social Security Act’s Aid to Families with Dependent Children program is a scheme of cooperative federalism, the federal work incentive program does not, barring a direct conflict, preempt independent state work requirements.

While a double jeopardy problem may arise for a defendant who has already been tried by one sovereign and then is subjected to prosecution by the other, the existence of this potential source of conflict has never prevented dual federal and state jurisdiction for criminal prosecutions, see 18 Pa.C.S. § 111; Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983), let alone triggered preemption concerns.

We conclude that the Social Security Act itself as well as its legislative history make clear that the federal government did not intend to dominate the field of public welfare to the exclusion of the states. Hence, the argument that Congress intended to preclude state prosecutions for behavior under state criminal statutes constituting theft of Social Security benefits must fail.

For the foregoing reasons, we reverse the order of Janu- . ary 27, 1989.

Order reversed. Case remanded for further proceedings. Jurisdiction relinquished.

KELLY, J., joined and filed a concurring statement.

KELLY, Judge,

concurring:

I have no hesitation in joining the able opinion of my learned colleague Judge Johnson. I write separately to note two additional observations.

I agree with the majority that no federal preemption was intended by 42 U.S.C. § 408. Indeed, delegation and integration, rather than preemption, are the settled norm in welfare fraud prevention, detection, and sanction. See generally Commonwealth v. Ferguson, 381 Pa.Super. 23, 34-47, 552 A.2d 1075, 1080-86 (1988) (outlining the history of the state’s role in combatting fraud in assistance programs); State Investigation of Fraud in AFDC Program (U.S.O.I. G.1987) (describing the delegation to states of the principle responsibility to prevent, detect and sanction AFDC welfare fraud, discussing federal efforts to facilitate state enforcement efforts); Pennsylvania Office of Fraud and Abuse Investigation and Recovery — Annual Report 1986-87 (1988) (outlining state efforts to prevent state and federal welfare fraud). Indeed, recent state and federal cost sharing arrangements for welfare fraud enforcement efforts have resulted in dramatic improvements in welfare fraud recoupment. See Commonwealth v. Ferguson, supra, 552 A.2d at 1086. I note that the federal government’s primary reliance on state enforcement efforts to combat welfare fraud is typified by the requirement that states administering AFDC and food stamp programs adopt fraud detection plans. See e.g. 45 CFR § 235.110.

In Commonwealth v. Ferguson, supra, this author explained: 552 A.2d at 1085. The same is true of finite federal assistance funds, which are intended to shoulder a portion of the state’s total public assistance burden.

Pennsylvania has a paramount interest in seeing that its limited public assistance funds are distributed as provided by law. If some welfare recipients receive more than their rightful share of these finite resources through fraud, then it is likely that other needy persons will be adversely affected either by reductions in assistance or by the Commonwealth’s inability to increase assistance. Moreover, deterrence of welfare fraud is necessary to maintain public support for such programs.

With regard to the double jeopardy issue, I note that the analysis set forth in Commonwealth v. Abbott, 319 Pa.Super. 479, 466 A.2d 644 (1983), was expanded upon in Commonwealth v. Savage, 388 Pa.Super. 561, 587, 566 A.2d 272 (1989). Abbott and Savage both establish that the mere availability of a federal forum for similar fraud charges in no way precludes this state prosecution from proceeding on state charges also applicable to appellant’s criminal misconduct.


author: MONTEMURO, Judge: POPOVICH, Judge,

text:
    575 A.2d 587
    Nora COFFEY, Appellant, v. Louis COFFEY, Appellee. Nora COFFEY, Appellee, v. Louis COFFEY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 26, 1989.
    Filed May 16, 1990.

      Albert Momjian, Philadelphia, for appellant (at 34) and appellee at (144).
    David N. Hofstein, Philadelphia, for appellant (at 144) and appellee (at 34).
    Before MONTEMURO, POPOVICH and CERCONE, JJ.
   MONTEMURO, Judge:

In this case we are presented with cross appeals from an undifferentiated spousal and child support order requiring Louis Coffey to pay Nora Coffey $3,932 per month for the reasonable expenses of herself and the parties’ two minor children, and to provide direct payment for the children’s dental, tutoring and tuition costs.

Preliminarily we note that we will reverse an award of spousal support only if the surrounding circumstances suggest that the trial court has abused its discretion in making the award. Goodman v. Goodman, 375 Pa.Super. 504, 544 A.2d 1033 (1988).

Further, and similarly,

No child support order will be disturbed unless there is insufficient evidence to sustain the order or there has been an abuse of discretion by the lower court. Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319 (1986). “An abuse of discretion is not ‘merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.” Fee v. Fee, 344 Pa.Super. 276, 279, 496 A.2d 793, 794 (1985).

Steenland-Parker v. Parker, 375 Pa.Super. 457, 461, 544 A.2d 1010, 1012 (1988).

The parties to the case were married in 1967, and separated in 1986 when Louis Coffey departed the marital residence. Appellant Nora Coffey is 48 years old. She attended college for about three years, but discontinued her education at appellee’s request before receiving her degree. Appellant’s employment history has been limited. She worked as a university research assistant prior to and for a short time after her marriage, and held a similar position during 1977-78, leaving that employment when she underwent a hysterectomy; she has not, since then, held a paying position.

Appellant’s primary involvement outside the home has, since 1982, been with a non-profit information service known as HERS (Hysterectomy Educational Resources and Services), of which she is the founder. The idea for this organization grew out of the medical problems appellant experienced following her own surgery, debilitating bone and joint pain which was eventually diagnosed as fibromyalgia. Her duties with regard to HERS, most of which have since been assumed by volunteers and paid employees, were originally of the administrative variety, but are now restricted by the fibromyalgia symptoms to some telephone work, some organizational efforts involved with conference planning, and some writing and editorial oversight of the HERS newsletter. Appellant also suffers from osteoporosis in her right hip. She resides with the parties’ teenage children in the marital residence, and apart from appellee’s contributions, has no income.

The marital residence is itself the center of a controversy, as each party attributes its acquisition, approximately a year prior to separation, to the insistence of the other on more luxurious accommodations. The house, a six bedroom residence purchased for $250,000 in 1985, is located in the Main Line suburban community óf Bala Cynwyd, and carries a monthly mortgage payment of $1,720.

Appellee is 50 years old, a practicing attorney who is a senior partner in a prestigious Philadelphia law firm. In addition to his practice, from which his gross distribution in 1986-87 was $245,000, appellee is involved in several real estate ventures from which he derived income amounting to $56,000. Appellee also had interest earnings of $10,000. His total earnings for the period was therefore $311,000. Appellee has no known health problems. At the time of hearing, he was renting living premises near his place of work.

The parties present us with the obverse and reverse of the same questions: whether the trial court committed reversible error by attributing to appellant too great or too small an earning capacity; whether the amount of support, and thus the reasonable expenses of (especially) appellant and the parties’ children, was too great or too small; whether appellee’s available income was over or underestimated. In addressing these issues, we note that after having reviewed the record in this case, the arguments of the parties and the applicable law, we find that, for the reasons which follow, the trial court did in fact abuse its discretion, having based its decisions on a mistaken understanding of the governing legal principles, and a misreading of the facts.

The trial court accepts the deductions from gross income offered by appellee as having been mandated by the law firm which is his employer, even offering an apologia about appellee’s adherence to the firm’ policy of contributing largely to charitable and political activities. The deductions, which include such contributions, as well as mileage and entertainment expenses, total approximately $17,000 annually.

The Support statute, 23 Pa. C.S.A. § 4302, defines “net income” as “Gross income minus taxes and any other deductions mandated by the employer as a condition of employment.” Although there is no legislative guidance offered as the sort of deductions contemplated by the statute, the recently adopted Rules of Civil Procedure relating to support actions do place limitations on allowable deductions. Rule 1910.16-5(b) specifies that only the following items are subtracted from gross income to calculate the net which determines support amounts:

1. federal, state, and local income taxes;
2. F.I.C.A. payments and non-voluntary retirement payments;
3. union dues;
4. health insurance premiums for the benefit of the other party or the children.

If indeed appellee’s employer requires of him, in order to maintain his employment, the sorts of payments deducted by the trial court, there would seem to be serious difficulties with the legality of these exactions. If, on the other hand, these contributions and other payments are voluntarily made by appellee to assure the continuing success of the practice with the recipients of the firm’s largesse, then they are not deductible at all for purposes of calculating support obligations. Moreover, there is offered in support of the proposition that these are mandatory payments, no partnership agreement or other document which states that they are a condition of employment. Even the trial court, which accepted at face value appellee’s assurance as to the necessity for the contributions noted that the donations were “recommended” rather than required by the firm’s Executive Committee. (T.C.O. at 9).

The law is well settled that the amount of a support award is based upon earning capacity, less reasonable expenses, not merely cash flow. Commonwealth ex rel. Goichman v. Goichman, 226 Pa.Super. 311, 316 A.2d 653 (1974). Therefore, steps taken to reduce income for the purpose of avoiding or decreasing support are ineffective insofar as diminishment of the obligation is concerned. See, Akers v. Akers, 373 Pa.Super. 1, 540 A.2d 269 (1988); Fichthorn v. Fichthorn, 368 Pa.Super. 305, 533 A.2d 1388 (1987) ; Weiser v. Weiser, 238 Pa.Super. 488, 362 A.2d 287 (1976). See also Pa.R.C.P. 1910.16-5(c)(1). Moreover, “the responsibility of the parents to support the child[ren] to the best of their ability, consistent with their own station in life, is ‘well nigh absolute’ ”, Commonwealth ex rel. Kaplan v. Kaplan, 236 Pa.Super. 26, 28, 344 A.2d 578, 579 (1975).

Reasonable expenses are not limited to the bare necessities of life but extend to articles which are reasonably necessary for the proper and suitable maintenance of the child in view of his social station in life and in view of his parents station in life.

Shutter v. Reilly, 372 Pa.Super. 251, 260, 539 A.2d 424, 428 (1988) .

While support orders may not be punitive or confiscatory, sacrifices in aid of achieving the support goal may be demanded. Kaplan, supra. All of which leads us to the question of whether contributions to charitable organizations, regardless of their worthiness, and political contributions, despite the public spiritedness they demonstrate, as well as business entertainment and mileage, are of sufficient importance to overcome the claims of appellee’s family upon his earnings. We find that they are not.

In his challenge to the trial court’s award, including his demand that his family move into an apartment, appellee contemplates an absolute reduction in the standard of living which his wife and children enjoyed during coverture, regardless of whether the standard was set by the house in Bala Cynwyd, or the previous one in Mount Airy.4 While appellee may not be penalized for choosing to work where he is strongly advised to participate in activities such as those he wishes to exclude from income, he must nevertheless face the consequences when it becomes clear that his income potential need not take account of such recommendation. His donations cannot form the basis for an insistence that his family leave the marital home, or that they drastically alter the kinds and amounts of expenses they may reasonably incur. We held in Weiser, supra, that this insistence is improper, especially where the respondent has not himself suffered noticeably from financial deprivation. Under the trial court’s order, appellee herein would have approximately $36,000 in tax free income after meeting both his own living expenses and those of his family’s which have been accepted as reasonable. We would, in disallowing the claimed deductions, remind appellee of the old adage that charity begins at home.

Consistent with its seeming determination to maintain appellee in the style to which he has become accustomed, the trial court excluded from its calculations $56,000 received by appellee in 1987 from the sale of some limited partnerships, on the ground that they were not productive of annual income, and were therefore more properly considered in equitable distribution proceedings. As we stated in another context, and at least insofar as child support is concerned,

All income from whatever source, is to be evaluated as well as financial resources and property interests as of the time at which support payments are sought.

Shindel v. Leedom, 350 Pa.Super. 274, 279, 504 A.2d 353, 355 (1986). See also, Steenland-Parker v. Parker, supra; 23 Pa.C.S.A. § 4302. In Fichthorn, supra, the appellant argued that salary bonuses which were neither guaranteed nor within his control to confer were not part of his income for support purposes. We disagreed, again on the principle that they were unarguably income, and if in fact they did not recur, appellant could petition for a reduction of his support obligation. The same is true of the instant situation.

Next, we would agree with appellant that the support order should have been allocated, as the tax implications further reduce the amount available to either the children or appellant. Because the order was entered pursuant to a complaint in support under applicable Rules of Civil Procedure, it is immediately appealable either as to its child support component or its spousal support component. See, Pa.R.C.P. 1910.16(b). The trial court’s failure to recognize the financial disadvantage to appellant and the parties’ children, and the consequent advantage to appellee of its undifferentiated order constitutes an oversight which exacerbates the abuse of discretion committed by the court in allowing the deductions discussed above. We find that this error must be remedied. See, Pa.R.C.P. 1910.16-5(e).

We also find grounds for reversal on the basis that the trial court’s order incorporates obvious errors of fact. As appellant points out, the order attributes $1,297 per month to the mortgage on the marital residence. This figure is neither the original monthly payment, $2,413, the payment due since the mortgage was refinanced, $1,720, or any combination of the two. Moreover, the taxes which the trial court states are included in the mortgage payment, are not. The combination of these errors is substantial.

Finally, as appellant points out, application of neither the formula in Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984), nor the Montgomery County Child Support Guidelines is evident from the undifferentiated order. This omission alone would be sufficient for reversal. Shutter v. Reilly, supra. However, the county guidelines have been superceded by those appearing in the Procedural Rules governing support actions; it is therefore the latter, in conjunction with' Melzer, and the circumstances of the case which must be considered. Lesko v. Lesko, 392 Pa. Super. 240, 572 A.2d 780 (1990).

The area of most significant disagreement between the parties herein is the trial court’s attribution to appellant of a $15,000 per year earning capacity: appellant claims that she is so debilitated by her condition as to be unemployable, while appellee argues that the trial court has grossly underestimated his wife’s incapacity. Appellant, after having seen at least a dozen doctors in the early years of her illness, was nevertheless not diagnosed until 1987, having in the meantime found some relief from pain in weekly acupuncture treatments. Even after a name, fibromyalgia, was attached to the symptoms she was experiencing, she has been less than totally cooperative in demonstrating her claim to the court, declining her own physician’s suggestion of a bone scan, and refusing to be examined by appellee’s expert. Predictably, both the medical and rehabilitation experts mirror the views of the party introducing them. Even were there less disagreement, the facts which both parties recognize, are, in general, not hopeful: appellant is close to fifty years old with little work history, minimal higher education, and uncertain health.

However, in making its determination as to appellant’s prospects, the trial court relied principally, and in this instance correctly, upon appellant’s own accomplishments, notably her work in connection with the HERS foundation. Whatever her limitations, appellant has organizational ability and considerable intelligence. Whether her physical state will permit her to exercise these will depend upon any improvement wrought by an end to this litigation, and whether she can find a market for her skills. She is required to make an effort in this direction, but, as we stated with regard to appellee’s income, should the situation change, recourse to the courts for modification is an available alternative.

Reversed and remanded for proceedings consistent with, this Opinion. Jurisdiction relinquished.

POPOVICH, J., files a concurring and dissenting opinion.

POPOVICH, Judge,

concurring and dissenting.

This case involves cross-appeals from the order of (child and spousal) support entered by the Court of Common Pleas of Montgomery County (per Davenport, J.) in favor of Nora Coffey and her two children and against Louis Coffey.

For the reasons that follow, I cannot join in all of the Majority’s conclusions. To start, I have examined the support order under an abuse of discretion standard. See Fee v. Fee, 344 Pa.Super. 276, 496 A.2d 793 (1985). In doing so, I have examined the trial transcripts (of 600 pages) generated by the 4-day nonjury trial, as well as other relevant documents presented by the parties to buttress their respective arguments.

Initially, I would observe that I cannot agree with the Majority’s determination that the trial court’s allowance of the husband’s charitable and business expenses, in calculating his net income, was error. There is evidence in the record that the law firm for whom the husband worked “expected” members of the firm to allocate a specific percentage of their salary for charitable purposes backed by the firm, and that the amount was automatically deducted from one’s wages each pay period. As for the deductions allowed by the trial court for the husband’s business entertainment and mileage, this could be attributed to the “cost of doing business”.

To put the matter in perspective (and street parlance), the husband had to cater to the existing and prospective clients, and a means by which to create or perpetuate this business relationship was by expending money to entertain (be it in a social, political or charitable context). This is a factor which is more a reality than fantasy and is even granted credence by the allowance of such deductions by the Internal Revenue Service. Thus, to the extent that the Majority would disapprove of the “operating” expenses incurred by the husband as a means of doing business, and, in turn, maintain or improve his position in the hierarchy of the law firm, I would allow the same as did the court below.

On the question of the trial court’s failure to allocate the support order between spousal and child payments, the matter is resolvable given that the husband had offered (and the wife/appellant had agreed at one point in the case) to file a joint return. This would discount the negative tax consequences flowing from a non-allocable support order. However, as is so often the situation in domestic relations cases, the spurning of one spouse by the other generates such enmity between the two that little, if any, cooperation is forthcoming to ameliorate any of the (resolvable) problems, be they in the tax area or in the allocation of monies or resources.

To the .extent that the court below may have erred in calculating various deductions {e.g., mortgage payment), a remand is appropriate to rectify the mistabulation.

Lastly, I conclude, as did the trial court, that the wife/Nora Coffey is “employable”. Her past work experience and extensive involvement in the HERS Foundation (established by Nora in 1978-79) prompts this writer to agree (as did the court below on the question of the credibility of the experts presented by both parties) that Nora Coffey does have skills that are transferrable to the market place. To say otherwise would be to ignore totally her educational and work background recounted with specificity in the trial court’s opinion, not to mention the day-to-day involvement of Nora Coffey in the operation of the HERS Foundation as a counselor and the driving force as to its inception, perpetuation and ongoing annual conferences held by the Foundation.

I see no reason to disturb the trial court’s credibility findings, a subject which is within the trial court’s bailiwick and not to be disturbed where the record is supportive of its findings of fact and conclusions of law.

As this Court has done in the past, there is no reason to think that the appellant/wife, once she makes the effort to secure employment, and is either unsuccessful or the monies paid for the position obtained falls short of the trial court’s estimated “earning capacity”, to come back into court to seek a modification of the support order. See, e.g., Mazzei v. Mazzei 331 Pa.Super. 432, 480 A.2d 1111 (1984). There is nothing in the law that would foreclose the wife from petitioning the court to review her employment effort and having the projected “earning capacity” assigned to her by the court altered premised on the reality of her attempts) to obtain a job. Id.

For the reasons herein stated, I respectfully concur in part and dissent in part to the actions of the Majority.

      . Fibromyalgia is not, strictly speaking, a disease, but a syndrome, which is apparently diagnosable only in terms of pain reactions, and is not susceptible to laboratory measurement.

      . These deductions are listed as follows:
      Charitable contributions $8,350
      Political Action Committee 1,200

        Political Contribution 2,000
      Business Entertainment 3,500
      Business Mileage (Unreimbursed) 1,540

      . The new Rules became effective September 30, 1989. The order being challenged in the instant case was entered November 23, 1988, and notice of appeal lodged December 22, 1988. The appeal was thus pending when the new Rules became operational, and is governed by them. See, Moore v. Moore, 390 Pa.Super. 174, 568 A.2d 250 (1990).

      . See, e.g., 18 Pa.C.S.A. § 7322. Demanding Property to secure employment.

      . Appellee’s contributions to a mandatory retirement plan and capital fund are outlined in an affidavit from the firm’s comptroller. Presumably, therefore, were documentation available for the other payments it would have been forthcoming.

      . Despite appellee’s depiction of the family’s previous existence as extremely modest, the trial court found that the parties' vacation had been "luxurious.” (T.C.O. at 23) Further, even assuming that the house in Mt. Airy was reflective of a different scale of living, it was, as appellee points out, a large, comfortable house (Appellee’s Brief at 38), not an apartment.

      . See Publication 17 ("Your Federal Income Tax”) of the Internal Revenue Service, which allows a contributor to deduct charitable contributions, subject to certain limits, made to a qualified organization. There was no indication at trial that the charities receiving money from the husband’s firm were not "qualified organizations” under federal tax law. Thus, payments exacted from the husband by his law firm, as a matter of course from his wages, were properly allowed by the trial court as a legitimate expense (to preserve his position with the firm).
      Also, the Internal Revenue Service allows deductions for entertainment expenses "incurred for the production of income”, Id.; the husband’s accounting that his attempt to endear himself to existing and prospective clients manifested itself in the form of lunches, banquets and the purchasing of various tickets for events sponsored or endorsed by the existing or prospective client warranted their deductibility.
      Given that the Internal Revenue Service allows for the cost of such items in the form of deductions, I see no reason why the same should not apply in calculating one’s net income for support purposes. There was no evidence proffered that the husband intentionally exposed himself to such expenses for the purpose of diminishing his “spendable” income, and, thus, painting a false financial picture in assessing his support obligations.