author: OLSZEWSKI, Judge:

text:
    653 A.2d 1286
    COMMONWEALTH of Pennsylvania, v. Eugene RAGAN, Appellant.
    Superior Court of Pennsylvania.
    Submitted Sept. 26, 1994.
    Filed Feb. 7, 1995.

      Christopher D. Mannix, Philadelphia, for appellant.
    Gayle M. Baker, Asst. Dist. Atty., Doylestown, for Com., appellee.
    Before OLSZEWSKI, JOHNSON and BROSKY, JJ.
   OLSZEWSKI, Judge:

Appellant Eugene Ragan appeals from judgment of sentence entered against him on October 25,1993, in the Court of Common Pleas, Bucks County. The trial court set forth the facts as follows:

Defendant, Eugene Ragan, was convicted by a jury of aggravated assault, simple assault, recklessly endangering, conspiracy and other charges concerning his 6-week old daughter. Defendant brought the infant to Lower Bucks Hospital on January 23, 1992 at about 1:30 a.m. Due to the child’s condition, she was transferred to St. Christopher’s Hospital for Children. X-rays revealed 22 broken bones, both old and new. The fractures were of the ribs, arms and legs. The infant had very recently (within a matter of hours) sustained a lacerated liver. External bruising was also noted. Doctors’ testimony was offered to the jury that the injuries were life threatening and that the child would have died without the medical treatment accorded her. In all, five physicians testified for the prosecution. The medical testimony presented was that the injuries were due to repeated inflicted trauma, and one doctor testified that the injuries were not consistent with various explanations offered to her by defendant as to the cause of the injuries.
The codefendant, Leah Maywhort, testified in her own behalf that she was the mother of the child and that she and the child had lived together with the defendant in the weeks preceding the child’s hospitalization. She further testified that during the 24 hours preceding the hospitalization, defendant had spent a great deal of time alone with the child. When he presented the child to Maywhort he stated, “Take her, damn it, she won’t shut up.” She testified that 45 minutes later, the child became very pale and, as the day wore on, the baby was repeatedly vomiting and had diarrhea. Defendant denied to Maywhort that he injured the child. Instead, he accused her of sitting on the baby.
Under questioning by a detective, defendant stated that the baby “got in the middle” of a stressful situation with his wife. He also admitted he may have squeezed the baby too hard or pulled her by her arms and legs. He further blamed his unemployment and his wife’s fighting as excuses as to how these stresses could have contributed to the injuries inflicted'upon the child.

Opinion, 8/19/93 at 1-2. Ragan’s post-verdict motions were denied and he was sentenced to ten-to-thirty years. This appeal followed.

Ragan first asserts that the verdict was against the weight of the evidence. A motion seeking a new trial on the basis of a weight of the evidence challenge should be granted when “the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985) (citing Burrell v. Philadelphia Electric Co., 438 Pa. 286, 265 A.2d 516 (1970)).

While this standard, to be applied by the trial court, is very clear, the standard on appellate review has not been as clear. In the recent case of Commonwealth v. Brown, our Supreme Court discussed the standard of appellate review for weight of the evidence challenges. 538 Pa. 410, 435, 648 A.2d 1177, 1189 (1994). The Court noted that a weight of the evidence motion for a new trial is addressed to the sound discretion of the trial court. On review,' our function is to examine the trial court’s exercise of discretion and determine if there has been an abuse. We are not free to answer the underlying question of whether we believe that the verdict is against the weight of the evidence. Id. This distinction is a fine one, but a very important one; it allows us to correct a palpable abuse of discretion while ensuring that we will not substitute our judgment for that of the jury or the trial court. Id.

In the search for a palpable abuse of discretion, we must look at the trial court’s decision, findings, and reasons, and then “examine the record and assess the weight of the evidence; not however, as the trial judge, to determine whether the preponderance of the evidence opposes the verdict, but rather to determine whether the court below in so finding plainly exceeded the limits of judicial discretion and invaded the exclusive domain of the jury.” Id. at 437, 648 A.2d at 1190 (quoting Thompson, 507 Pa. at 598-600, 493 A.2d at 673 (citations omitted)). In essence, our abuse of discretion standard of review is very narrow and seeks only to ensure that the trial judge exercises the duties, yet respects the confines, of his or her particular role in the trial proceeding.

In the instant case, the trial judge has not provided us with his thinking on the matter of the weight of the evidence. On page two of his opinion, the trial judge addresses Ragan’s sufficiency of the evidence challenge. Opinion, 8/19/93 at 2. A sufficiency of the evidence challenge, however, does not involve the same inquiry as a weight of the evidence challenge. Commonwealth v. Birdseye, 432 Pa.Super. 167, 172-74, 637 A.2d 1036, 1039 (1994); Commonwealth v. Taylor, 324 Pa.Super. 420, 423-26, 471 A.2d 1228, 1229-30 (1984). Thus, we are left without an explicit trial court ruling on an issue that is addressed to the sound discretion of the trial court.

Appellee urges us to presume that the trial court examined the weight of the evidence. Brief for appellee at 19. It is true that the trial judge discussed and apparently credited much of the evidence introduced at trial. Based on this discussion, appellee would have us assume that the trial judge weighed the evidence and found that the verdict did not shock his sense of justice. In the absence of any indication that the trial court even noticed the weight of the evidence claim, however, any such assumption would look less like a review of the trial court’s exercise of discretion and more like an appellate court’s weighing of the evidence. We would be moving dangerously close to crossing the weight of the evidence “line in the sand” drawn by the Supreme Court in Brown. In an area of the law where the Supreme Court has taken such pains to clearly delineate the boundaries of the appellate and trial court functions, we decline the invitation to again blur the distinction.

Since our review, as set forth in Brown, requires an explicit trial court determination on the weight of the evidence, we are constrained to remand and order the trial court to write a supplemental opinion, within 30 days of the filing of this opinion, detailing its decision and findings on the weight of the evidence. Given our disposition of this first claim, we decline to address Ragan’s other claims at this time.

Remanded with directions for a supplemental opinion. Panel jurisdiction retained.

JOHNSON, J., concurs in the result.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    653 A.2d 1288
    COMMONWEALTH of Pennsylvania, Appellant v. James Russell CROSSLEY, Appellee.
    Superior Court of Pennsylvania.
    Argued Nov. 17, 1994.
    Filed Feb. 9, 1995.

      Merritt E. McKnight, Dist. Atty., Lock Haven, for the Com., appellant.
    Paul J. Ryan, Lock Haven, for appellee.
    Before CAVANAUGH, POPOVICH and SAYLOR, JJ.
   POPOVICH, Judge:

This case involves a Commonwealth appeal from the order granting a motion to suppress to and dismissing retail theft charges against the appellee/James Russell Crossley. We reverse.

The facts indicate that the appellee was charged on August 12, 1993, with retail theft of an item valued at $2.55. On October 25, 1993, the appellee pleaded guilty to the offense. But prior to the court’s acceptance of the plea, the appellee was permitted to withdraw it upon learning that the sentence to be imposed would result in imprisonment of 24 to 36 months in a state (versus a county) correctional facility.

The case was scheduled for the call of the list on April 18, 1994, with jury selection to be held on May 20, 1994. The appellee appeared on April 18th with the case being continued until the following day to inquire into whether a local sentence (9-15 months imprisonment) would be agreeable to the initial judge who heard the matter on October 25th. When the initial judge indicated the unlikeliness of deviating from the sentencing guidelines, the appellee opted to plead not guilty and seek representation. The court placed the case for jury selection on May 20, 1994. At the scheduled time, the appellee appeared without counsel and, as a result, the Public Defender’s Office was assigned to the case that same day, with jury selection following on the heels of the appointment.

Also, with the case scheduled for trial on Tuesday, May 24th of 1994, the court ordered the Commonwealth to make its entire file available to defense counsel by 10:00 a.m. on Monday, May 23rd, or sooner. Prior to the commencement of the May 24th trial, defense counsel made a motion to suppress a statement of one Jolene Edwards received from the Commonwealth dated May 23rd. The substance of the statement concerned the appellee being observed by Ms. Edwards (a clerk in the retail store) looking over his shoulder toward the checkout counter as he walked out of the store and answering “no” when asked by Ms. Edwards if he had anything under his jacket. It was counsel’s contention that the shortness of time between his appointment and trial precluded the filing of a Bill of Particulars. Moreover, because Ms. Edwards’ statement was presented by the Commonwealth less than 24 hours before trial, a violation of the court’s order directing production of all information by 10:00 a.m. of May 23rd had occurred and warranted suppression of the statement.

The Commonwealth countered that everything it had on file was released to the appellee on Friday, May 20th. However, with an interview of a store clerk (Ms. Tracy Smeal) scheduled for Saturday at 4:00 p.m., the disclosure of the name of Jolene Edwards by Smeal led the police to question Ms. Edwards on Sunday, May 22nd. On Monday, the 23rd, Detective Keeler typed his report of the Edwards interview. In turn, Commonwealth’s counsel dictated a letter to defense counsel, with the Keeler report enclosed, and had the information hand-delivered to appellee’s counsel.

Counsel for the Commonwealth argued that it acted as expeditiously as possible in providing defense counsel with whatever information it had in the case. Further, the Commonwealth indicated it would not oppose a continuance if sought by the defense.

However, the court was of the opinion that the Commonwealth had ample opportunity to prepare its case (between jury selection and trial) prior to the weekend before trial. As a result, the court granted the appellee’s motion to suppress Ms. Edwards’ statement and precluded her testimony from introduction at trial. This prompted the Commonwealth to advise the court that it was appealing the ruling because it “c[ould] not proceed to trial without this evidence, it [wa]s necessary evidence to proceed with trialUpon hearing that the case was not going to trial that day, the court entered an order “dismissing” the retail theft charge against the appellee. This appeal followed and challenges the order (suppressing and dismissing the case) by the court below.

The resolution of the order appealed is governed by Pa.R.Crim.P. 305 and the case law interpreting it; viz.:

B. Disclosure by the Commonwealth
(1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused which is material either to guilt or to punishment, and which is within the possession or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth;
(c) the defendant’s prior criminal record;
(d) the circumstances and results of any identification of the defendant by voice, photograph, or in-person identification;
(e) results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant, which are within the possession or control of the attorney for the Commonwealth;
(f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence;
(g) the transcripts and recordings of any electronic surveillance, and the authority by which the said transcripts and recordings were obtained.
(2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable.
(a) the names and addresses of eyewitnesses;
(b) all written or recorded statements, and substantially verbatim oral statements, of eyewitnesses the Commonwealth intends to call at trial;
(c) all written or recorded statements, and substantially verbatim oral statements, made by co-defendants, and by co-conspirators or accomplices, whether such individuals have been charged or not;
(d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

From a reading of Rule '305, one learns that Ms. Edwards’ identity and statement to police were not mandatory but discretionary subjections of disclosure, and it was within the trial court’s discretion whether to require disclosure of such information. Commonwealth v. Novasak, 414 Pa.Super. 21, 606 A.2d 477, 482 (1992).

With respect to violations of Rule 305, this Court has remarked that a trial court has broad discretion in choosing an appropriate remedy. See Commonwealth v. Palmer, 319 Pa.Super. 56, 465 A.2d 1050, 1052 (1983). Further, Pa. R.Crim.P. 305 E provides:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.

In Commonwealth v. Johnson, 310 Pa.Super. 385, 456 A.2d 988, 993 (1983), this Court wrote:

Pa.R.Crim.P. 305 E gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. In many cases, ordering a continuance will be an adequate remedy. This will be so where the undisclosed statement or other evidence is admissible and the defendant’s only prejudice is surprise. E.g., Commonwealth v. Parente, 294 Pa.Superior Ct. 446, 440 A.2d 549 (1982); Commonwealth v. Bey, 294 Pa.Superior Ct. 229, 439 A.2d 1175 (1982).

Additionally, we have held that termination of the prosecution to be “a penalty far too drastic” for a prosecutor’s violation of discovery rules. Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631, 641 (1987).

Albeit the trial court did not dismiss the charge of retail theft for the Commonwealth’s tardiness in disclosing Ms. Edwards’ statement to the defense, its equivalent was accomplished when the Commonwealth declined to proceed to trial without Ms. Edwards’ statement and suffered a dismissal of the charge in failing to prosecute prior to resolution of the suppression issue on appeal.

.Under Dugger, infra, our Supreme Court held specifically that the prosecution, upon a good faith certification that a suppression order substantially handicapped or terminated its case against a defendant, was entitled to appeal the order, as a final one as a matter of right. This was predicated upon the Court’s general supervisory and administrative authority, as well as its authority to adopt procedural rules. To require the Commonwealth to pursue its case to trial (without evidence considered “relevant” and having the propriety of its exclusion by a suppression order resolved) would be “to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed^ the result of which wa]s highly unfair to the Commonwealth and the interests of society which it represents.” Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985), quoting Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963). We will not allow that to occur instantly.

The failure of the prosecution to comply fully with the discovery order was not demonstrated by the appellee to prejudice his right to a fair trial. See Commonwealth v. Manchas, 430 Pa.Super. 63, 633 A.2d 618, 626 (1993). Thus, the drastic remedy of dismissing the retail theft charge for the refusal of the Commonwealth to proceed before testing the propriety of the suppression order resulted in the trial court abusing its discretion (see Novasak, supra) and violated Dugger’s allowance of such a right of review in advance of prosecution.

Therefore, the dismissal of the prosecution was not a remedy consistent with the wrong committed by the Commonwealth. It is conceivable, of course, that a violation may be so egregious as to recommend an order dismissing all charges. Such an order, however, was not warranted under the circumstances present in this case. A continuance, if necessary and requested, would have been more appropriate. See Commonwealth v. Woodell, 344 Pa.Super. 487, 496 A.2d 1210, 1213 (1985) (Collecting cases). Surely, a short delay to allow defense counsel to review the rather straight-forward statement of Ms. Edwards would have remedied any Rule 305 violation. Consequently, for the reasons herein stated, the order of court suppressing evidence and dismissing the retail theft charge against the appellee is reversed.

Order reversed.

      . Our examination of the record, i.e., the transcript and notice of appeal, establishes that the Commonwealth satisfied its obligation to certify in good faith that the order appealed "substantially handicapped” its continued prosecution of the case. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985). The appellee's suggestion that this Court examine the merits of such a claim of being “substantially handicapped” by the order appealed is contra the Dugger ruling which provides that such a good faith assertion of being “substantially handicapped” is sufficient to secure review.

      . This was the appellee’s third retail theft making it a felony of the third degree.

      . Appointment was made by the court at 3:45 p.m. on the 20th day of May, 1994, with jury selection completed by 4:20 p.m.

      . It was appellee’s counsel's position that the statement of events related specifically to the appellee’s intent, i.e., whether he intended to deprive the store of the merchandise, and showed consciousness of guilt, which related specifically to the defense to be offered.

      . It is to be noted that even the trial court stated, following the appointment of counsel and the selection of the jury immediately thereafter, the case was "so easy to try that even the assignment of counsel five minutes before the swearing of the jury would not work to the Defendant’s disadvantage or prejudice.” N.T. 5/20/94 at 21.


author: SAYLOR, Judge:

text:
    653 A.2d 1292
    Renee BLOOM, Appellant, v. Joseph FINE, Jr., Hanover Excavating Co., and Guy’s Brake Service Co., Appellees.
    Superior Court of Pennsylvania.
    Submitted Dec. 19, 1994.
    Filed Feb. 7, 1995.

      Arthur M. Lobel, Philadelphia, for appellant.
    Richard J. Margolis, Philadelphia, for appellees.
    Before DEL SOLE, SAYLOR and MONTGOMERY, JJ.
   SAYLOR, Judge:

This is an appeal from an order of the Court of Common Pleas of Bucks County sustaining the preliminary objections of Appellees, Joseph Fine, Jr. and Hanover Excavating Company, and dismissing the complaint of Appellant, Renee Bloom, for lack of personal jurisdiction. We affirm.

On September 11, 1989, Appellant, Renee Bloom (“Bloom”) was operating a motor vehicle in South Brunswick, New Jersey, when she was struck by a motor vehicle driven by Appellee, Joseph Fine, Jr., (“Fine”) and owned by Appellee, Hanover Excavating Company (“Hanover”). On September 5, 1991, Bloom instituted an action against Fine and Hanover in the Court of Common Pleas of Bucks County, based upon her belief that Hanover either had a registered place of business in Pennsylvania or conducted business in Pennsylvania. On December 4, 1991, Hanover and Fine filed preliminary objections alleging lack of jurisdiction on the basis that Hanover neither had an office in Pennsylvania nor conducted business in Pennsylvania. On November 24, 1993, the trial court was advised by Bloom’s counsel that “plaintiff will not be able to prove that the defendants conducted business within Pennsylvania.” Bloom requested, however, that the trial court transfer the case to the United States district court. The trial court refused to transfer the case and granted Fine and Hanover’s preliminary objections, dismissing Bloom’s complaint for lack of personal jurisdiction. It is from this order that Bloom appeals.

Bloom raises the following issues on appeal: 1) Whether the trial court erred in granting the preliminary objections in the nature of a motion to dismiss for lack of personal jurisdiction when the court had jurisdiction pursuant to 42 Pa.C.S.A. § 5322(a)(4); and 2) Whether the trial court erred in failing to transfer this case to federal court.

Bloom contends that the trial court has jurisdiction in this case pursuant to Pennsylvania’s long arm statute, 42 Pa.C.S.A. § 5322(a)(4), which provides:

(a) General rule — A tribunal of this Commonwealth may exercise personal jurisdiction over a person ... who acts directly or by an agent, as to a cause of action or other matter arising from such person:
(4) Causing harm or tortious injury in this Commonwealth by an act or omission outside this Commonwealth.

42 Pa.C.S.A. § 5322(a)(4).

In DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986), the Superior Court held that the Pennsylvania courts did not have personal jurisdiction over a New Jersey resident under the Pennsylvania long arm statute even though the accident which occurred in New Jersey caused the plaintiff to suffer injuries in Pennsylvania. In doing so, the Superior Court relied upon the district court’s reasoning in Hilferty v. Neesan, 506 F.Supp. 218 (E.D.Pa.1980), which applied Pennsylvania law in a diversity action and held that:

the mere fact that a plaintiff may have some residual pain and suffering while recuperating in the forum state from an accident which occurred entirely out of the state is not the type of harm “caused in the Commonwealth” which is contemplated by the long arm statute.

Id., supra, 506 F.Supp. at 220.

In this case, it is clear that the statutory requirements for exercising personal jurisdiction over Fine and Hanover have not been satisfied. Although Bloom may have suffered residual pain in the forum state of Pennsylvania following the accident in New Jersey, this is not the type of harm contemplated by 42 Pa.C.S.A. § 5322(a).

Additionally, the contacts which Fine and Hanover had with Pennsylvania were not sufficient to satisfy the constitutional requirements necessary to justify the exercise of personal jurisdiction. Pursuant to 42 Pa.C.S.A. § 5322(b), Pennsylvania law authorizes personal jurisdiction to the fullest extent allowable under the United States Constitution. Consistent with constitutional requirements of due process, the nonresident defendant is required to have certain “minimum contacts” with the forum state. DeFay v. McMeekin, 352 Pa.Super. 409, 508 A.2d 324 (1986) citing International Shoe Company v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and Pecot, Inc. v. Sirianni, 295 Pa.Super. 462, 441 A.2d 1324 (1982). Here, Bloom admitted in a letter to the trial court that she would not be able to prove that Fine and Hanover conducted business in Pennsylvania. Thus, Fine and Hanover’s sole contact with Pennsylvania is Bloom’s suffering of residual harm in the forum state, which is clearly not sufficient to satisfy the constitutional requirement of minimum contacts.

Secondly, Bloom claims that the trial court erred by failing to transfer this case to the United States district court. Bloom argues that the trial court is permitted to transfer this case to the United States district court pursuant to 28 U.S.C.A. § 1631 and 42 Pa.C.S.A. § 5103. We disagree.

Section 1631 of the United States Code provides:

Whenever a civil action is filed in a court as defined in Section 610 of this title ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed ...

28 U.S.C.A. § 1631.

The term “courts” in Section 610 is defined as follows:

As used in this chapter the word “courts” includes the courts of appeals and district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, the District Court of the Virgin Islands, the United States Claims Court, and the Court of International Trade.

28 U.S.C.A. § 610.

Section 1631 pertains only to the transfer of a case within the federal court system and was “broadly drafted to allow transfer between any two Federal courts.” McLaughlin v. Arco Polymers, Inc., 721 F.2d 426, 429 (3d Cir.1983).

Nor does 42 Pa.C.S.A. § 5103 provide for the transfer of erroneously filed cases from state to federal court. Section 5103 provides:

(a) General rule — If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or district justice shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth
(b) Federal cases:
(1) Subsection (a) shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth ... Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth ...

Section 5103 thus allows a court of this Commonwealth to transfer a case to another court within the Commonwealth which has jurisdiction, and permits a litigant to transfer a case dismissed by the United States district court for lack of jurisdiction to a Pennsylvania state court. The statute does not, however, authorize the transfer of a state court action to a federal court.

Order affirmed.


author: CIRILLO, Judge: OLSZEWSKI, Judge,

text:
    654 A.2d 555
    COMMONWEALTH of Pennsylvania, v. Jose BOURGEON, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 20, 1994.
    Filed Dec. 20, 1994.
    Reargument Denied Feb. 28, 1995.

      David P. Trulli, Philadelphia, for appellant.
    Vram Nedurian, Jr., Asst. Dist. Atty., Newton Square, for Com. appellee.
    Before CIRILLO, OLSZEWSKI and HESTER, JJ.
   CIRILLO, Judge:

This is an appeal from a judgment of sentence entered in the Court of Common Pleas of Delaware County. We affirm.

Appellant Jose Bourgeon was charged with aggravated indecent assault, indecent assault, and corruption of minors as a result of an assault on two minor boys, Justin Z., age seven, and David S., age eleven. Both boys testified at trial. The trial resulted in a hung jury and a mistrial was declared. Bourgeon was retried and convicted of two counts of corruption of minors.

Bourgeon filed post-trial motions, which were denied. The sentencing judge sentenced Bourgeon to a total term of fifteen to thirty-six months in the Delaware County Prison. Additionally, the court ordered Bourgeon to undergo counseling and to pay restitution for one of the victim’s counseling. This appeal followed.

Bourgeon raises the following issues for our review:

1. Did the trial judge err in finding through the weight and sufficiency of the evidence, that the Commonwealth’s ■witness was “unavailable” to testify at the second trial on May 26, 1993, and as such, admit his prior testimony into evidence from the October 28, 1992 trial, denying the appellant his constitutional right to view and cross-examine his accuser?
2. Did the trial judge abuse his discretion by qualifying Dr. George Leute as an expert based upon his testimony concerning the examination of the Commonwealth witness Justin Z. and other hearsay testimony?
3. Did the trial judge err in determining that the verdict was consistent with the weight and sufficiency of the evidence?

In his first issue, Bourgeon claims the court erred in finding that Justin Z. was unavailable to testify at the second trial. Justin testified and was cross-examined at the first trial. At the second trial, however, Justin would not testify. Justin was examined by a psychologist, Dr. George M. Leute. Dr. Leute testified that Justin was severely traumatized by the event and by having to testify at the preliminary hearing and the first trial. He stated that Justin was unable to relate the events of the case again. Dr. Leute also testified that if Justin was called again to testify, he would suffer additional trauma. Based on this testimony, the trial court ruled that Justin was unavailable to testify and admitted into the second trial the audio tape of Justin’s testimony from the first trial.

Bourgeon argues that, as a result of the court’s finding that Justin was unavailable to testify, the court denied him his constitutional right to cross-examine and confront the witnesses against him. The premise of Bourgeon’s argument, though valid, is not directly applicable in this case.

' In Commonwealth v. Ludwig, 366 Pa.Super. 361, 531 A.2d 459 (1987), this court was presented with the issue of whether use of a closed circuit television to transmit a child’s testimony violated the defendant’s state constitutional right to confront witnesses against him. The majority opinion held that it did not. Id. at 371-73, 531 A.2d at 464. The Pennsylvania Supreme Court granted Ludwig’s appeal, 518 Pa. 617, 541 A.2d 744 (1988), and reversed. Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991).

Our state constitution provides in pertinent part: “In all criminal prosecutions the accused hath a right ... to meet the witness face to face.... ” Pa. Const, art. I, § 9. This clause and similar provisions in other state constitutions as well as the sixth amendment to the United States Constitution are firmly rooted in the history of Anglo-Saxon jurisprudence____ Case law, history, and the plain language of our constitution establish that in Pennsylvania, the right of confrontation means that a person has the right to meet his accuser face to face in the courtroom.... Though the right to confrontation is important, it is not absolute. Face to face confrontation may be the constitutional ideal, but many adjustments and exceptions to the ideal are constitutionally permissible....

Commonwealth v. Ludwig, 366 Pa.Super. 361, 389-92, 531 A.2d 459, 473-475 (1987) (Cirillo, P.J., dissenting) (emphasis added).

In Ludwig, the Pennsylvania Supreme Court acknowledged that “the right to confront an accuser is not without exception.” 527 Pa. at 478-79, 594 A.2d at 284, (citing Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) (permitting the prosecution to use preliminary hearing testimony of a witness at trial when that witness was unavailable)) and Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977) (permitting prosecution to use a videotape deposition of a witness unavailable for trial). We emphasize that Rodgers, supra, and Stasko, supra, the cases on which the Supreme Court relied, presented exceptions to the state constitutional right to face to face confrontation; both cases involved original testimony “given in the presence of the defendant with the defendant having the opportunity to face and cross-examine his accuser.” Ludwig, 527 Pa. at 479, 594 A.2d at 284. In Ludwig, however, the exception did not apply; the Court determined that the “subjective fears of the witness,” without more, were “insufficient to restrict this important constitutional right.” Id. at 480, 594 A.2d at 285.

In the instant case, the trial court found that Justin was unavailable. The audio tape of Justin’s testimony, therefore, was admitted at the second trial. Here, as in Stasko and Rodgers, and unlike Ludwig, original testimony was given in the presence of Bourgeon and Bourgeon was given the opportunity to face and cross-examine his accuser.

Additionally, in this case, it was not simply Justin’s subjective fears on which the trial court based its finding of unavailability. Dr. Leute testified that there were both physical and psychological manifestations of Justin’s trauma at the prospect of testifying again, including vomiting, diarrhea, threatening to run away, and threatening suicide.

Next, Bourgeon argues that the trial court abused its discretion by qualifying Dr. Leute as an expert to determine if the witness, Justin, was unavailable to testify at the second trial. We find no error or abuse of discretion.

The qualification of expert testimony lies within the sound discretion of the trial court; we will not reverse absent an abuse of that discretion. Commonwealth v. Echevarria, 394 Pa.Super. 261, 575 A.2d 620 (1990). The standard of qualification is a liberal one:

If a witness “has any reasonable pretension to specialized knowledge on the subject under investigation he may testify and the weight to be given to his evidence is for the jury.”

Kuisis v. Baldwin-Lima Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974) (citations omitted). See also Commonwealth v. Bennett, 471 Pa. 419, 370 A.2d 373 (1977). Additionally, “great deference is given to the trial court’s finding of fact with regard to qualifications[.]” Packet & Poulin, Pennsylvania Evidence, § 702.3 (1987).

Here, the trial court accepted the opinion of Dr. Leute, finding him qualified to testify with respect to Justin’s physical and psychological manifestations of trauma induced as a result of sexual abuse and as a result of having testified at the first trial. Dr. Leute is a licensed psychologist. Dr. Leute testified that he was in private practice and also did consulting for the Children’s Sexual Abuse Center in Media, Pennsylvania, which involves treating children who have been sexually abused. Dr. Leute holds a master of arts degree in clinical psychology and, at the time of trial, had several hundred hours of training in hypnotherapy and psychotherapy.

Dr. Leute also testified that he had attended various seminars and educational programs pertaining to child sexual abuse, with respect to both victims and perpetrators. Dr. Leute testified that approximately one-third of his practice was devoted to treating sexually abused children.

The trial court found that Dr. Leute was qualified to testify as an expert as to the physical and psychological trauma suffered by Justin as a result of sexual abuse and as a result of being made to testify, and, consequently, as to Justin’s “unavailability.” We find no error. Dr. Leute’s education and experience with the dynamics of child sexual abuse clearly places him within the range of having “specialized knowledge on the subject” of child sexual abuse and its effects. Kuisis, 457 Pa. at 338, 319 A.2d at 924.

In his final claim, Bourgeon argues that the verdict is against the weight of the evidence and that the evidence is insufficient to support the verdict. These claims pertain to criminal information number 104B, corruption of minors, in which David was the victim. We find both claims meritless.

In evaluating a challenge to the sufficiency of the evidence, we must determine whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences therefrom, the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Jarman, 529 Pa. 92, 94-95, 601 A.2d 1229, 1230 (1992); Commonwealth v. Swann, 431 Pa.Super. 125, 635 A.2d 1103 (1994). “This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Swerdlow, 431 Pa.Super. 453, 458, 636 A.2d 1173, 1176 (1994) (citing Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1986)). See also Commonwealth v. Chmiel, 536 Pa. 244, 639 A.2d 9 (1994). Furthermore, it matters not whether the appellant finds a witness’s testimony lacking in credibility; such matters are solely within the province of the jury as trier of fact and, as such, will not be assailed on review by this court. Swerdlow, supra.

Where issues of credibility and weight of the evidence are concerned, it is not the function of an appellate court to substitute its judgment based on a cold record for that of the trial court. Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973); McElrath v. Commonwealth, 405 Pa.Super. 431, 443, 592 A.2d 740, 745 (1991). A new trial is warranted on a challenge to the weight of the evidence only if the verdict is so contrary to the evidence as to shock one’s sense of justice. McElrath at 441-43, 592 A.2d at 745. Given this stringent standard, along with the facts and testimony of the instant case, we do not find the evidence here so shocking to one’s sense of justice so as to warrant a new trial. Furthermore, issues of credibility are left to the trier of fact; the jury is free to accept all, part, or none of the witness testimony. Commonwealth v. Pirela, 398 Pa.Super. 76, 83-84, 580 A.2d 848, 852 (1990), appeal denied, 527 Pa. 672, 594 A.2d 658 (1991); Commonwealth v. Vitacolonna, 297 Pa.Super. 284, 288-90, 443 A.2d 838, 841 (1982). The evidence presented at trial indicated that the two victims, Justin and David, became acquainted with Bourgeon in the summer of 1991. Justin and David, as well as other children in the neighborhood, played in Bourgeon’s garage and were invited into Bourgeon’s house. David testified that during that summer Bourgeon invited him into the house. David stated that Bourgeon showed him a “pin toy,” which made impressions. Bourgeon placed it on his face and showed David the impression. He then told David to go upstairs in the bathroom and place it on his penis. David hesitated but was lured upstairs to Bourgeon’s bedroom to view a karate photograph. Bourgeon carried the pin toy upstairs. Bourgeon again told David to go into the bathroom and place the pin toy on his “wiener.” David was undecided about whether to do it, but he went into the bathroom. He was about to close the door when Bourgeon walked in. Bourgeon tried to pull David’s gym shorts down, stating “I just want to put it on.” He pulled David’s shorts down about two inches, but David pulled them up. David said “no,” and left the house. Bourgeon gave him money, but David refused it because “it was dirty.”

Applying the above standards to the evidence presented at trial, we find that Bourgeon’s sufficiency and weight of the evidence claims are clearly meritless. Jarman, supra; Paquette, supra. See Commonwealth v. Hernandez, 420 Pa.Super. 1, 615 A.2d 1337 (1992) (testimony of victim, corroborated in part by his mother, was sufficient to sustain defendant’s conviction for corruption of a minor); Commonwealth v. Bricker, 397 Pa.Super. 457, 580 A.2d 388, appeal denied, 527 Pa. 596, 589 A.2d 687 (1990) (verdict finding defendant guilty of corruption of a minor was supported by sufficient evidence of acts which would corrupt a minor, regardless of finding of not guilty of indecent assault or involuntary deviate sexual intercourse).

Judgment of sentence affirmed.

OLSZEWSKI, J., files a Concurring Opinion.

OLSZEWSKI, Judge,

concurring:.

I concur in the result reached by the majority in this case. I write separately only to further clarify the trial court’s discussion of the unavailability of the child witness.

For purposes of using a witness’s former testimony, the witness is unavailable if he or she is dead, out of the jurisdiction, cannot be found, or is sick or insane. Shields v. Larry Construction Co., 370 Pa. 582, 585-87, 88 A.2d 764, 766 (1952); Mackintosh-Hemphill Div. v. Unemployment C.B. of R., 205 Pa.Super. 489, 493-95, 211 A.2d 23, 26 (1965). The trial court here found that the child witness was unavailable under the illness prong, based on the trauma that the child would suffer as a result of being forced to testify again. While the illness prong of the unavailability test is not well developed in the case law, it seems that a witness’s subjective fear of testifying at trial does not constitute an illness. See Commonwealth v. Ludwig, 366 Pa.Super. 361, 400-02, 531 A.2d 459, 479 (1987), appeal granted, 518 Pa. 617, 541 A.2d 744 (1988), reversed, 527 Pa. 472, 594 A.2d 281 (1991) (Cirillo, J., dissenting). A trial is stressful by nature, and a person should not be excused for having a normal reaction to the judicial proceedings. Id.

We have found illness, and therefore unavailability, however, if the stress of trial aggravates a pre-existing medical condition. See Commonwealth v. Stasko, 471 Pa. 373, 370 A.2d 350 (1977). In Stasko, the trial court found a witness to be “ill,” and therefore unavailable, based upon evidence that she previously had numerous abdominal operations for ulceric conditions and the emotional strain of appearing for trial would have greatly aggravated her existing medical condition. On appeal, our Supreme Court held that the witness was properly found unavailable and the testimony did not violate the defendant’s confrontational rights. Id.

In the instant case, an expert testified that the child would suffer severe emotional distress if he were forced to testify at the second trial. The illness required for unavailability, however, was not found on the basis of a subjective fear of testifying at trial. The requisite illness was found in the fact that the child witness was traumatized by testifying at the first trial, and now had a pre-existing medical condition which would be aggravated by the stress of being forced to testify at the second trial. This case falls squarely within the scope of Stasko, and the majority opinion cannot be interpreted as creating any general category of unavailability based solely on subjective fears of testifying at trial.

In addition to the illness prong of unavailability, which applies to all witnesses, special considerations also exist in this case that militate against finding a confrontation right violation. This child witness has been the victim of a neighbor’s sexual abuse. The child testified at the defendant’s first trial, under oath and in the defendant’s presence. At that first trial, the defendant had a full and fair opportunity for live cross-examination. Additionally, an expert testified about the real physical symptoms that this child experienced, such as vomiting and diarrhea, in anticipation of testifying' again.

Unlike the child witness videotape cases in recent years that have been found to violate the Pennsylvania Constitution, this defendant did have the opportunity to confront his child accuser face-to-face, and this child witness suffered real physical symptoms and not just a subjective fear of testifying. Cf. Commonwealth v. Louden, 536 Pa. 180, 187-89, 638 A.2d 953, 957 (1994) (finding 42 Pa.C.S. §§ 5984 and 5985 unconstitutional because they raise subjective fears of child witness above the rights of a defendant to confront his accuser face to face); Commonwealth v. Ludwig, 527 Pa. 472, 480-82, 594 A.2d 281, 285 (1991) (finding child witness’s subjective fears about testifying not sufficient to override defendant’s right to a face-to-face confrontation with his accuser). In a case such as this, the state’s interest in protecting the child outweighs the very limited infringement on the defendánt’s confrontational rights.

Based on the foregoing, I concur in the majority’s conclusion that appellant’s right to confrontation was not violated.

      . A child psychology expert testified that after the trauma of testifying in the first trial, the threat of testifying again caused the child to suffer vomiting, diarrhea, and thoughts of suicide. N.T. 5/26/93 at 26.


author: CAVANAUGH, Judge.

text:
    654 A.2d 560
    Claude FENINGER, Appellee, v. CAPITAL ACCUMULATIONS SERVICES, INC. T/A CAS Financial Securities, and Bruno Giordano, Appellants.
    Superior Court of Pennsylvania.
    Argued June 21, 1994.
    Filed Dec. 27, 1994.

      James R. Malone, Haverford, for appellants.
    Harris B. Savin, Philadelphia, for appellee.
    Before ROWLEY, President Judge, and CAVANAUGH and TAMILIA, JJ.
   CAVANAUGH, Judge.

This matter is presently before the court on the appeal of Capital Accumulation Services, Inc., t/a CAS Financial Securities and Bruno Giordano. Appellants appeal from orders entered March 3, 1989 (which granted appellee’s motion for summary judgment) and December 29, 1993 (which granted judgment in favor of appellee in the amount of $164,361) of the Court of Common Pleas of Delaware County. After review of the record and relevant authority, we affirm.

A brief review of the facts. Claude Feninger first met appellant Bruno Giordano, the controlling shareholder of Capital Accumulations Services, Inc., in 1982. Within months Mr. Feninger engaged the appellants to provide him with financial services. In 1984 the appellants brought to appellee’s attention a tax shelter investment involving the lease of breeding cattle. In December of 1984 Mr. Feninger purchased an Old Chisholm Trail Genetics, Inc. (“OCTG”) breeding management agreement (“BMA”). This investment involved the lease of cows for the purpose of insemination and gestation of calves. Any calves born became the property of the investor.

On December 22, 1986 Feninger filed the instant lawsuit claiming violations of the Pennsylvania Securities Act of 1972. (70 P.S. § 1-101 et seq.) Specifically, appellee alleged that the appellants were liable to him under Section 503 of the Act in that appellant Giordano acted as an agent of Old Chisholm in the sale of an unregistered security in violation of Section 201 of the Act. On June 24, 1988 appellants filed a motion for summary judgment to which appellee filed a cross-motion on July 26, 1988. On March 2, 1989 the court below granted Feninger’s cross-motion for summary judgment. On December 9, 1993 the court below decided the issue of damages and entered judgment in favor of appellee. This appeal followed.

Appellants raise two questions:

1. Is appellee’s claim time-barred by the one-year limitation period of 70 P.S. § 1 — 504(b)?
2. Are appellants exempt from liability under 70 P.S. § 1-503(a)?

Our scope of review on appeal from summary judgment is stated as:

In reviewing an order granting a motion for summary judgment, we must view the record in the light most favorable to the non-moving party. All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Moreover, in summary judgment proceedings, it is not' the court’s function to determine the facts, but only to determine if an issue of material fact exists. Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the trial court’s conclusion that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. (citations omitted).

Schriver v. Mazziotti, 432 Pa.Super. 276, 638 A.2d 224, 225-226 (1994).

Appellants first argue that Mr. Feninger’s claim against them is time-barred by the provisions of 70 P.S. § 1 — 504(b). This section provides that:

No action shall be maintained to enforce any liability created under section 502 (or section 503 in so far as it relates to that section) unless brought before the expiration of two years after the violation upon which it is based or the expiration of one year after the plaintiff receives actual notice or upon the exercise of reasonable diligence should have known of the facts constituting such violation, whichever shall first expire. (Emphasis added).

On December 22, 1986 appellee filed this lawsuit. Appellants claim that since appellee had notice of all the facts constituting a violation of the Act more than one year before December 22, 1986, his suit is time-barred. Appellants claim that if the Act’s “violation” was the sale of the unregistered security to the appellee, the timeliness of his claim depends on whether he knew (or should have known) of the facts constituting the sale more than one year before filing suit. Appellants claim that appellee should have known that the BMA investment was unregistered. Appellants further claim that the status of the BMA investment as a “security” (which makes its unregistered sale a violation of the Act) is a legal conclusion and not a fact appellee needed to have “known” to prevent the one-year limitations period from applying.

The trial court, in its opinion filed when it granted appellee’s summary judgment motion, addressed this argument. The court found that the cattle breeding agreement did constitute a security under the Act. Accordingly, the Act applied to the transaction between Mr. Feninger and OCTG. The court further found that the appellants sold to the appellee an unregistered and non-exempt security in violation of the Act. The court also found that, while the plaintiff could have discovered that the agreements were not registered (so as to trigger the one-year statute), this knowledge would be relevant only if the investment was a “security”, and it would be unreasonable to hold the appellee accountable for that determination. Accordingly, the court found that the appellee could not reasonably be charged with, and did not, have the knowledge which would trigger the one-year limitation period under Section 504(b) and, therefore, his lawsuit was timely.

Upon review of the record before us we find no error in the court’s findings. In our view the decision is also supported by the conclusion that a reasonable investor can not be charged with knowledge that a cow breeding agreement is a “security” so as to implicate application of the Pennsylvania Securities Act. Accordingly, we reject appellants’ first claim.

Appellants also claim that they are not liable under Section 503 since they themselves did not, and could not, know that the BMA was a security.

Section 503(a) of the Act provides a defense to a broker-dealer or agent if he proves that he did not, and exercising reasonable care, could not, have known of the facts which establish liability. It is significant that the burden of proof is on the agent. Appellants, nevertheless, claim they are not liable under this standard.

We note, however, that appellants failed to assert this claim as an affirmative defense in their answer to appellee’s complaint, did not raise it in their own motion for summary judgment, or in their response to appellee’s motion for summary judgment. In fact, appellants first asserted this claim at oral argument on the issue of damages, one year after judgment had been entered as to their liability. Accordingly, this issue was not “timely and properly” raised at the trial level and has not been preserved for appellate review. See: Paparelli v. GAF Corp., Inc., 379 Pa.Super. 62, 549 A.2d 597, 599 (1988); Reilly by Reilly v. Southeastern Pennsylvania Transportation Authority, 507 Pa. 204, 489 A.2d 1291 (1985); Dilliplaine v. Lehigh Valley Trust Company, 457 Pa. 255, 322 A.2d 114 (1974).

Even were this issue not waived we note that the appellants, who held themselves out as investment specialists, had the burden to plead and prove that they did not and could not reasonably have known of the facts establishing liability. The sections of the Act which establish the time for filing of suit and the defense of not knowing the facts which establish liability differ in this material respect. In the latter the burden of proof was on the appellants to prove their lack of knowledge. This they failed to do.

As the court below’s rulings were not in error, the orders appealed are affirmed.

Orders affirmed.

      . Section 503(a) provides:
      Every affiliate of a person liable under section 501 or 502, every partner, principal executive officer or director of such person, every person occupying a similar status or performing similar functions, every employee of such person who materially aids in the act or transaction constituting the violation, and every broker-dealer or agent who materially aids in the act or transaction constituting the violation, are also liable jointly and severally with and to the same extent as such person, unless the person liable hereunder proves that he did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.
      Section 502 of the Act, “Violation of registration requirements” provides in pertinent part:
      Any person who violates section 201 or any material condition imposed under section 206 or 207 shall be liable to the person purchasing the security offered or sold in violation of section 201 from him who may sue either at law or in equity to recover the consideration paid for the security, together with interest at the legal rate from the date of payment, less the amount of any income or distributions, in cash or in kind, received on the security, upon the tender of the security, or for damages if he no longer owns the security.

      . Section 201 provides:
      It is unlawful for any person to offer or sell any security in this State unless the security is registered under this act or the security or transaction is exempted under section 202 or 203 hereof.

      . Section 102(t) of the Act defines a security, inter alia, as including any "investment contract.”

      ; The court also noted that paragraph 12 .of the BMA specifically stated that the investment was not a security.


author: BECK, Judge.

text:
    654 A.2d 563
    Lynn E. McGINNIS v. John Leo McGINNIS, Appellant.
    Superior Court of Pennsylvania.
    Submitted Oct. 18, 1994.
    Filed Jan. 25, 1995.

      John L. McGinnis, pro se.
    Edward E. Kopko, Pottsville, for appellee.
    Before BECK, HUDOCK and BROSKY, JJ.
   BECK, Judge.

In this child support action we address whether, based on a prior child support agreement, the trial court may deviate from the support guidelines. In this case we conclude that the guidelines control and that the support agreement has no bearing. We reverse the trial court’s order and remand for further proceedings.

Appellant-father and appellee-mother have two children. They were married in 1975 and divorced in 1990. At that time they entered into a support agreement under which appellant was required to pay child support in the amount of $100 per week. In March, 1991, appellee filed a complaint for support. She did not base her action on the support agreement. After the master made his recommendation and a hearing was held on appellant’s exceptions to the recommendation, the trial court ordered appellant to pay $100 per week. This timely appeal followed.

The trial court found, inter alia, that the parties shared custody of the children under an arrangement in which appellant had custody 43% of the time and appellee had custody 57% of the time. Under this arrangement, each party provided direct support to the children during his or her respective periods of custody, and the parties equally shared many of the children’s other expenses, such as costs of health and life insurance, clothing, medical expenses and school costs. The trial court found that because both parties had transferred assets out of their names in order to avoid claims by creditors, their credibility on issues' of income and expenses was questionable. However, the court concluded that appellee had income from part time employment as a nurse which provided an average net income of $1,483.17 per month in 1992, while appellant, who is self-employed, had net income at least sufficient to meet his monthly expenses of $2,409.34 per month. The court also found that under the agreement appellant was obligated to pay $100.00 per week in child support.

In arriving at its support order, the trial court used the guidelines but deviated from them based on the support agreement. Under the guidelines the court found that appellant was obligated to pay $45.65 per week for the children’s support. Nevertheless the court ordered appellant to pay $100 per week, reasoning that under the prior support agreement the husband had consented to pay $100 per week.

Appellant contends that under the guidelines the trial court’s order was an abuse of discretion in light of its factual findings regarding the parties’ incomes and their shared custody arrangement. We agree.

In considering appellant’s claims of error, we are mindful that we must apply an abuse of discretion standard. Ball v. Minnick, 538 Pa. 441, 449, 648 A.2d 1192, 1196 (1994) (citing Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975)). “A support order will not be disturbed on appeal unless the trial court failed to consider properly the requirements of the Rules of Civil Procedure Governing Actions for Support, Pa.R.C.P. 1910.1 et seq., or abused its discretion in applying these Rules.” Id. (citing O’Callaghan v. O’Callaghan, 530 Pa. 176, 607 A.2d 735 (1992)).

We do not question the trial court’s factual findings as to the parties’ respective incomes or the proportion of time each parent has custody of the children. Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199 (1989). However, the trial court did not base its order upon these findings alone. After arriving at the amount appellant owed under the guidelines, the court deviated from the guidelines based on the support agreement. We reiterate that this action was not premised on the support agreement, but was an action in support which triggered the use of the guidelines.

The trial court cited this court’s decision in Borrell v. Borrell, 346 Pa.Super. 1, 498 A.2d 1339 (1985), in support of the proposition that it should consider the parties’ agreement as a factor in determining the appropriate amount of its support order. Borrell, however, was decided prior to the adoption of the support guidelines, Pa.R.C.P. 1910.16-1— 1910.16-5. The guidelines were promulgated pursuant to the Act of October 30,1985, as amended, 23 Pa.C.S. § 4322, which provides that child and spousal support shall be awarded pursuant to statewide guidelines to be established by the Supreme Court by general rule. Ball v. Minnick, supra at 450, 648 A.2d at 1197 (1994).

Under the guidelines, the amount of the support award determined by application of the grids and formulas is presumed to be correct, and that presumption is rebutted only where “the trier of fact makes a written finding, or a specific finding on the record, that an award in the amount determined from the guidelines would be unjust or inappropriate” Pa. R.C.P. 1910.16-l(b). Such a finding must be based upon factors set forth in Pa.R.C.P. 1910.16-4(b), which provides:

In deciding whether to deviate from the amount of support determined by the guidelines, the trier of fact shall consider
(1) unusual needs and unusual fixed obligations;
(2) other support obligations of the parties;
(3) other income in the household;
(4) ages of the children;
(5) assets of the parties;
(6) medical expenses not covered by insurance;
(7) standard of living of the parties and their children; and
(8) other relevant arid appropriate factors, including the best interests of the child or children.

Pa.R.C.P. 1910.16-4(b). These factors are “the only factors that a trier of fact may consider in determining whether to deviate.” Ball v. Minnick, supra at 449, 648 A.2d at 1196 [emphasis added]. Thus, the trier of fact does not have “unfettered discretion to, in each case, deviate from the recommended amount of support. Deviation will be permitted only where special needs and/or circumstances are present such as to render an award in the amount of the guideline figure unjust or inappropriate.” Id. at 450, 648 A.2d at 1196.

The existence of a prior private support agreement between the parties is not one of the factors included in Rule 1910.16-4 as a permissible basis for departure from the guidelines. Moreover, the mere existence of a support agreement cannot, without evidence of. other special circumstances, establish that the guidelines amount of support is unjust or inappropriate. Thus, to the extent that this court’s decision in Borrell allowed a trier of fact to consider the provisions of a private support agreement in determining the amount of support, we must conclude that its authority has been vitiated by the adoption of the support guidelines and the decision in Ball v. Minnick, supra.

Appellee in this action elected not to sue on the support agreement, but instead initiated an action in support. By electing this course, she forsook her contract 'right to sue, and instead submitted her claim to the powers of the support court. Knorr v. Knorr, 527 Pa. 83, 86-87, 588 A.2d 503, 505 (1991). The support court, in acting on her claim, was not bound by the terms of the parties’ agreement. Id. It was, however, obliged to comply with the procedures and requirements of the Rules of Civil Procedure Governing Actions for Support, including the support guidelines. Ball v. Minnick, supra. In setting the amount of the support award in this matter, the trial court deviated from the guidelines based upon an impermissible factor, namely the support agreement. In doing so, the trial court failed to comply with the procedures and requirements of the Rules. This failure constitutes an abuse of discretion which requires reversal of the order of support.

In reversing the trial court’s order in this matter and remanding for further proceedings, we are cognizant that on remand the amendments to Pa.R.C.P. 1910.1(b)(1) which became effective on July 1, 1994, will permit enforcement of the parties’ child support agreement directly through the action in support. This fact, however, does not render our remand a futile act. If, upon remand, the appellee-wife elects to seek court enforcement of the agreement, such enforcement cannot be automatic. The trial court’s power to enforce the agreement, based as it is in Section 3105(a) of the Domestic Relations Code, 23 Pa.C.S. § 3105(a), is tempered by its obligation to consider whether allegations of changed circumstances warrant modification of the agreement under Section 3105(b) of the Code, 23 Pa.C.S. § 3105(b).

Order reversed; case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

      . The trial court took the support agreement into consideration despite the fact that it recognized that under Pa.R.C.P. 1910.1 (b)(i), then in effect, the support agreement of the parties was not specifically enforceable in an action for support. At the time of the trial court’s decision in this matter, Rule 1910.1(b) provided in pertinent part that "[t]he rules of this chapter shall not govern (1) an action or proceeding for support based upon a contract or agreement unless the contract or agreement provides that may be enforced by an action in accordance with these rules.” Pa.R.C.P. 1910.1(b) (as amended Nov. 7, 1988, effective Jan. 1, 1989). Rule 1910.1(b) was amended effective July 1, 1994 to permit enforcement of an agreement through an action in support unless the agreement specifically provides that it may not be so enforced.

      . See Pa.R.C.P. 1910.1, Explanatory Comment — 1994. Section 3105(a) of the Domestic Relations Code provides:
      (a) Enforcement. — A party to an agreement regarding matters within the jurisdiction of the court under this part, whether or not the agreement has been merged or incorporated into the decree, may utilize a remedy or sanction set forth in this part to enforce the agreement to the same extent as though the agreement had been an order of the court except as provided to the contrary in the agreement.
      23 Pa.C.S. § 3105(a).

      . Section 3105(b) of the Domestic Relations Code provides:
      (b) Certain provisions subject to modification. — A provision of an agreement regarding child support, visitation or custody shall be subject to modification by the court upon a showing of changed circumstances.
      23 Pa.C.S. § 3105(b).


author: HOFFMAN, Judge:

text:
    654 A.2d 566
    COMMONWEALTH of Pennsylvania v. Richard McCLEERY, Appellant.
    Superior Court of Pennsylvania.
    Argued Oct. 25, 1994.
    Filed Feb. 1, 1995.

      Ellen M. Viakley, Pittsburgh, for appellant.
    Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
    Before CIRILLO, TAMILIA and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from judgment of sentence entered on August 4, 1993. Appellant, Richard McCleery, raises the following issues for our review:

1. Whether the lower court erred in permitting expert witnesses to testify over defense objection that the witness’ conduct was consistent with rape trauma syndrome[?]
2. Whether it was error to permit the prosecution to augment the credibility of the complaining witness with prior statements[?]
3. Whether the defendant was denied the effective assistance of counsel at trial, under both federal and state constitutional standards, by counsel’s failure, inter alia, to introduce critical evidence regarding the competence and credibility of the complaining witness[?]
4. Whether defendant was denied due process of law, under both federal and state constitutional standards, by the trial court’s refusal to permit counsel to present evidence in support of the post-trial motions; to mark exhibits for the record for purposes of appeal; and to order the enforcement of duly issued subpoenas[?]
5. Whether the lower court erred in ruling inadmissible evidence of allegations of sexual misconduct reported by the complainant and investigated in 1985, which attributed substantially similar misconduct to another person[?]

Appellant’s' Brief at 2. For the reasons that follow, we reverse.

The facts of this case may be summarized as follows. In September of 1982, T.M. and D.M. were removed from the custody of their mother with the assistance of Children Youth Services (hereinafter “CYS”). The children were then placed in the temporary custody of Joy and Richard McCleery as foster children. At that time, T.M. and D.M. were respectively two and one half and one years old. The girls remained in the custody of the McCleery’s until July of 1985, at which time B.S., another foster child living with the McCleery’s, reported to CYS that T.O.M., the McCleery’s natural son, had been engaging in sexual conduct with both T.M. and D.M. All three children were removed from the household and T.O.M. later admitted to having sexual conduct with both girls.

Five years later, in May of 1990, while the victim attended a counseling session with a psychiatric social worker, she revealed that she had been raped by her foster father numerous times beginning at the age of two years old. As a result on .May 9, 1991, appellant was charged -with one count of rape, one count of statutory rape, one count of involuntary deviate sexual intercourse, two counts of indecent assault and one count of corruption of minors.

At trial, the Commonwealth presented expert testimony concerning the usual delay in reporting by child sexual abuse victims. In addition, they presented testimony regarding the presence and absence of physical trauma in child sexual abuse cases and the typical time for resolution of such physical trauma. Following a trial by jury, on September 17, 1992, appellant was found guilty of all charges and subsequently sentenced to an aggregate period of incarceration of not less than ten (10) nor more than twenty (20) years imprisonment. Post-trial motions were filed and denied. This timely appeal followed.

Appellant first argues that the lower court erred in permitting expert witnesses to testify that the victims’ conduct was consistent with rape trauma syndrome. Specifically, he contends that both the admission of expert testimony regarding the delay in reporting by child sexual abuse victims and the admission of expert testimony concerning the significance of physical evidence of trauma in child victims of sexual abuse constitutes reversible error. After careful analysis of case law in this area, we are constrained to agree.

Recently, in Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992), the Supreme Court specifically held that it was reversible error to permit the prosecution to introduce expert testimony regarding delay in reporting by child sexual abuse victims. The Court explained that such testimony comprises an impermissible attempt by the Commonwealth to bolster the credibility of the complaining witness. Dunkle at 184, 602 A.2d at 837. See also Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991), appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) (determinations of credibility are reserved exclusively for the jury).

Dunkle, however, is only one case in a long line of decisions regarding the inadmissibility of expert testimony on issues related to the credibility of sexual complainants. See e.g., Commonwealth v. Gallagher, 519 Pa. 291, 547 A.2d 355 (1988) (court found reversible error where expert witness testified that rape complainant’s failure to identify her attacker was unremarkable); Commonwealth v. Davis, 518 Pa. 77, 541 A.2d 315, 317 (1988) (reversible error to permit an expert to testify that children generally lack the ability to fabricate sexual experiences); Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 920, 922 (1986) (rape conviction reversed where expert stated an opinion regarding the veracity of child sexual abuse complainants); Commonwealth v. Emge, 381 Pa.Super. 139, 553 A.2d 74 (1988) (conviction reversed where expert testified that victim’s post-attack behavior was consistent with behavior of victims of child sexual abuse). With these cases in mind, we will proceed with appellant’s claim.

In the present case, Commonwealth witness, Mary Carrasco, an expert in the area of pediatrics and child abuse, was permitted to testify that the witness’ delay in reporting was consistent with sexual abuse and that “most” child victims of sexual abuse delay in reporting the abuse. The expert was further permitted to testify to a reasonable degree of medical certainty, that the absence of any physical evidence of trauma was consistent with the complainant’s allegations of sexual abuse.

The expert testimony challenged here is precisely that which this court en banc previously found to comprise reversible error. Commonwealth v. Garcia, 403 Pa.Super. 280, 588 A.2d 951 (1991) (en banc). In Garcia, the Commonwealth called an expert witness who was a pediatrician and co-director of a pediatric sexual assault program. Over defense objection, the witness was permitted to testify that it was not unusual for child abuse victims to delay in reporting abuse. Garcia at 283-284, 588 A.2d at 952. Our Court reversed the conviction, holding that such testimony was an impermissible attempt by the Commonwealth to bolster the credibility of the victim. We also note, that the expert in Gama, similar to the instant case, testified regarding the “presence and absence of physical trauma in child sexual abuse cases' and the usual time frame for resolution of such trauma.” Id. at 284, n. 3, 588 A.2d at 952, n. 3. The court held that expert testimony regarding the significance of the presence or absence of physical trauma in child sexual abuse cases was inadmissible, because the “prejudicial impact of this testimony clearly outweighs in probative value.” Id.

The Commonwealth argues that Ms. Carrasco’s statement concerning the presence and absence of physical findings in child sexual abuse cases was in response'to defense counsel’s suggestion during his opening that the Commonwealth must- present physical corroboration in order to sustain its burden of proof. After carefully reviewing the opening remarks of defense counsel, we draw no such inference. In his opening statement, defense counsel merely informed the jury that since there was no physical evidence in this case, the question would essentially come down to one of credibility.

The Commonwealth further argues that Ms. Carrasco’s statement that “most children disclose sexual abuse after a long period of time,” is admissible because defense counsel opened the door. Again, we disagree. On direct examination, the Commonwealth themselves elicited much testimony on the absence of physical trauma in sexual abuse cases, inferring that physical trauma does not exist due to a delay in reporting. Therefore, as it was the Commonwealth who initially offered this testimony, this argument is equally without merit.

Thus, in light of Garcia, Dunkle, and the long line of cases preceding them, we find that the testimony in the instant case should not have been admitted. Such testimony was an impermissible attempt by the Commonwealth to bolster the credibility of the victim. As such, it invaded the province of the jury by encouraging them to abdicate their responsibility to ascertain the facts. See Garcia at 289, 588 A.2d at 955. (expert testimony presents unique dangers to a defendant’s right to a fair trial in that jurors may be, “unduly impressed by an expert, his credentials, and ultimately his opinion”).

Accordingly, for the reasons stated above, we reverse and remand for a new trial.

Reversed and remanded for a new trial.

      . The children were removed from the custody of their natural mother because of the mother’s history of substance abuse, violence and psychiatric instability.

      . We note that the victim was later diagnosed as suffering from psychotic episodes, hallucinations and a possible bipolar disorder.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 3122.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 6301.

      . In addition, Commonwealth witness, Norma Bussey, a CYS caseworker for twelve years, also testified that it was common for child sexual abuse victims to delay in reporting.

      . Due to the disposition of this issue, we need not address the remaining issues.