text:
    469 A.2d 604
    COMMONWEALTH of Pennsylvania v. Patrick L. BAILEY, Appellant.
    Superior Court of Pennsylvania.
    Argued May 26, 1983.
    Filed Nov. 18, 1983.

      Charles F. Gilchrest, Sharon, for appellant.
    Harry A. Penich, Assistant District Attorney, Mercer, for Commonwealth, appellee.
    Before CAVANAUGH, ROWLEY and CIRILLO, JJ.
   CIRILLO, Judge:

Appellant was tried before the Honorable Albert E. Acker and a jury in the Mercer County Court of Common Pleas, and found guilty of indecent assault. 18 Pa.C.S. § 3126. Appellant’s trial counsel, a public defender, filed boiler plate post-verdict motions. Appellant sent a letter to Judge Acker raising additional grounds for post-verdict relief, including several instances of ineffective assistance of counsel. Judge Acker appointed new post-trial counsel, who filed amended motions. After conducting post-trial hearings on appellant’s claims on May 8 and 27, 1980, Judge Acker denied the amended motions on December 8, 1980, and reaffirmed his order in an opinion dated January 31, 1981. Judgment of sentence was imposed March 20, 1981, and this appeal followed.

The incident involved in this case occurred at about 4:30 p.m. on August 18, 1979, in the Shenango Dam camping area. The nine-year-old victim, whom we will call Jane H., testified at trial to the following events: She was at the camp that day with her family. Her mother had given her some trash to throw away, and she went to the rest room to put the trash in a can by the door. Appellant, a park rest room attendant, appeared and told her to take the trash to a dumpster, which she did. Jane then returned to the rest room to relieve herself, and passed appellant coming out of the rest room. Jane entered the third stall. The door to the stall had no lock and would not close completely. She heard footfalls getting louder and appellant walked in on her by accident. He apologized and excused himself, but returned shortly. The child was on her feet wiping herself with her pants at her knees. Appellant entered the stall .and pushed her up against the wall with his hand on her shoulder. He then stooped and put his hands on her crotch, one from in front and one from behind, and began kissing her stomach. He tried to kiss her face. Jane asked what he was doing, but he did not respond. She began to scream. Appellant stood up and told her not to tell anyone. She ran screaming from the rest room and immediately told her parents what had happened.

Appellant’s defense was designed to show that Jane had a vivid imagination of which the assault was a product.' He did not deny being at the rest room at the time in question, or walking in on Jane by mistake. He testified that when he opened the stall door she was standing with her back to the door, and was knocked forward. He reached to help her, then quickly excused himself.

Appellant now maintains that his trial counsel rendered ineffective assistance in seven particular respects.

Our task in cases of alleged ineffectiveness of counsel encompasses both an independent review of the record and an examination of counsel’s stewardship of the now challenged proceedings in light of the available alternatives. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). However, our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Id.; Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981).

If the underlying claim or strategy foregone by counsel was without arguable merit, our inquiry into counsel’s effectiveness is at an end; counsel cannot be deemed ineffective for failing to advance a baseless claim. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). Only if the foregone claim is found to be of arguable merit do we proceed to determine whether there was some reasonable basis for counsel’s actions designed to protect his client’s interests. Id.; Commonwealth v. Norris, 305 Pa.Super. 206, 451 A.2d 494 (1982).

There is a presumption in the law that counsel was effective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981); Commonwealth v. Norris, supra. The burden of proving counsel’s ineffectiveness never shifts from the party alleging it. Washington v. Maroney, supra.

Appellant first alleges that counsel was ineffective for failing to object to the trial court’s qualification of Jane H. as competent to testify. Any such objection would have been groundless.

When a child under the age of fourteen is called to testify, the competency of the infant witness must be independently established. Rosche v. McCoy, 397 Pa. 615, 156 A.2d 307 (1959). In order for competency to be established it must be shown that the infant witness is conscious of the duty to tell the truth. Id. Appellant argues that Jane H. did not evidence a consciousness of the duty to tell the truth, because she only gave terse “yes” answers, to leading questions from the trial judge; she did not indicate that she knew the meaning of “truth” and “lie”; and she did not indicate that she knew the moral consequence of telling a lie.

Appellant’s contention is partly belied by the record. In response to Judge Acker’s query what she had been taught about God, Jane answered that God was always watching you and knew when you lied. Jane’s response bespeaks an independent perception that divine moral retribution attaches to the act of lying.

In Commonwealth v. Short, 278 Pa.Super. 581, 420 A.2d 694 (1980), we upheld a competency determination over a contention similar to appellant’s. There the minor witness testified she could not tell a lie because the judge and her mother would punish her, although she could not explain the difference between “the truth” and “a lie.” We think the showing of Jane H.’s competency also compares favorably with showings held adequate in other cases. See Commonwealth v. Payton, 258 Pa.Super. 140, 392 A.2d 723 (1978) (not error to permit six-year-old victim to testify although she could not give an accurate example of a lie and did not know concept of divine retribution); Commonwealth v. Penn, 497 Pa. 232, 439 A.2d 1154, cert. denied, 456 U.S. 980, 102 S.Ct. 2251, 72 L.Ed.2d 857 (1982) (competency determination upheld despite child’s inability to explain the meaning of “oath”).

Appellant relies on Commonwealth v. Rimmel, 221 Pa.Super. 84, 289 A.2d 116 (1972). There we overturned competency rulings allowing two eight-year-old girls, seven at the time of the incidents, to testify against the defendant on indecent assault charges. We held that the girls had evidenced comprehension of neither the difference between truth and falsehood, nor the moral responsibility to tell the truth under oath, where they knew only that they would be hollered at, beaten, or punished for lying.

Rimmel was distinguished in Commonwealth v. Riley, 458 Pa. 390, 326 A.2d 384 (1974); Commonwealth v. Mangello, 250 Pa.Super. 202, 378 A.2d 897 (1977); and Commonwealth v. Short, supra. The same distinction recognized in these cases obtains in the present case. Whereas in Rimmel the minor witnesses were able to relate their duty to tell the truth only to their fears of physical or emotional abuse, in each of the other cases the witness was able to relate lying to moral retribution.

Moreover, we should note the steady trend away from the application of the law found in Rimmel. In both Mangello and Short we criticized Rimmel and limited it to its facts. We recognized that competency determinations are matters peculiarly within the discretion of the trial judge, whose exercise of discretion should not be disturbed absent flagrant abuse. Because the trial judge who makes the competency ruling has a much superior opportunity to assess the competency of the child witness, an appellate court should virtually never reverse the ruling, the better practice being to accept the testimony on its face and leave the matter of credibility to the fact finder. See 6 Wigmore, Evidence § 1821 (Chadbourn rev. 1976); Commonwealth v. Short, supra; Commonwealth v. Mangello, supra. Judge Acker’s decision to employ leading questions was within his discretion in determining the competency of Jane H. See 98 C.J.S. Witnesses § 332 (1957) (“It is usual and proper for the court to permit leading questions in conducting the examination of a witness who is immature____”). Appellant’s trial counsel was not ineffective for failing to object to the qualification of the child witness.

Appellant’s next contention concerns trial counsel’s failure to impeach Jane’s credibility through use of her prior statements to park ranger Harry O’Connell and to policemen Eric Baugher and Ronald Staul. Appellant presented evidence at the post-conviction hearing designed to show that Jane’s statements to O’Connell, Baugher, and Staul were discrepant with her trial testimony.

O’Connell interviewed Jane immediately after the incident and prepared an incident report. The version of the incident appearing in O’Connell’s report is that Jane went to the rest room to throw away a bag of garbage and to use the facilities; that the door to the rest room was propped open with a garbage can, in which Jane attempted to put the bag of trash; that the rest room cleaner (Bailey) told her to throw the bag in the dumpster nearby, which she did; that she returned to the women’s side of the rest room; that the door was closed and no one was inside, so she went in; that the rest room attendant then entered, and, seeing Jane, apologized and left; that moments later the attendant reentered, pushed Jane against the wall and began touching and kissing her; that Jane screamed, the attendant told her not to tell anyone, and she ran from the rest room crying.

Shortly after O’Connell talked with Jane, Officer Eric Baugher spoke with her. The version of the incident contained in Baugher’s report is that Jane’s parents sent her to throw some trash in the dumpster; that instead she tried to throw the trash in the rest room can but was sent to the dumpster by Bailey; that Jane went to the rest room afterwards and heard Bailey come in; that as she stood wiping herself the door came open knocking her against the wall; that Bailey entered her stall and put his hands on her; that Bailey told her not to tell anyone; and that she screamed and ran from the rest room back to her campsite.

On August 22, 1979, four days after the incident, Officer Staul interviewed Jane and recorded the results of the interview in a report and an affidavit of probable cause for Bailey’s arrest. The version of the incident contained in Staul’s report and affidavit is that Jane’s parents sent her to the dumpster with some trash; that instead Jane tried to deposit the trash in the rest room cans; that Bailey, who was cleaning sinks in the rest room, told her to take the trash to the dumpster, which she did; that she returned to the rest room to use it; that Bailey was cleaning sinks when she walked in; that shortly after she went to the middle stall she heard footfalls leading out the door; that about a minute later she heard footfalls coming into the rest room and Bailey opened the door to her stall; that Bailey said “Sorry” and closed the door and left; that a very short time later Jane was wiping herself with her pants down when she saw the same man over the door again; that he pushed her up against the wall with a hand on her shoulder and held her there; that he got on his knees and started kissing her; that he put one hand between her legs from the front and the other hand between her legs from behind and touched the part of her body she used to go to the bathroom with; that during the entire incident Jane was asking Bailey what he was doing; that Jane screamed; that Bailey let go of her, told her not to tell anyone, and backed away; and that Jane ran from the rest room to her parents.

Bailey’s trial counsel, Michael Wherry, did not interview O’Connell or read his report. Wherry did talk to Baugher and Staul, and did see their reports. Wherry called only Baugher as a defense witness at trial, but not for the purpose of impeaching Jane with prior inconsistent statements. Bailey now contends that Wherry’s failure to use Jane’s statements to O’Connell, Baugher, and Staul as impeaching evidence constitutes ineffectiveness of trial counsel.

Failure to interview witnesses who might have furthered a defense, or to produce known evidence helpful to the defense, supports a finding of ineffective assistance of counsel. Commonwealth v. Mabie, 467 Pa. 464, 359 A.2d 369 (1976); Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975); Commonwealth v. Fallings, 251 Pa. Super. 365, 380 A.2d 822 (1977). But trial counsel’s failure to call possible witnesses will not be equated with a conclusion of ineffectiveness of counsel absent some positive demonstration that their testimony would have been helpful to the defense. Commonwealth v. Wade, 501 Pa. 331, 461 A.2d 613 (1983); Commonwealth v. Leonard, 499 Pa. 357, 453 A.2d 587 (1982); Commonwealth v. Payne, 309 Pa.Super. 25, 454 A.2d 1063 (1982). Because the burden of proving counsel’s ineffectiveness rests on the party alleging it, appellant’s burden in this case was to prove that Wherry forsook a course of conduct that would have helped the defense. Commonwealth v. Helvy, 278 Pa.Super. 458, 462, 420 A.2d 631, 633 (1980); Commonwealth v. Olivencia, 265 Pa.Super. 439, 402 A.2d 519 (1979). This burden appellant failed to carry.

A party may impeach the credibility of an adverse witness by introducing evidence that the witness has made one or more statements inconsistent with her trial testimony. Commonwealth v. Brown, 302 Pa.Super. 391, 448 A.2d 1097 (1982); In re Farms, 216 Pa.Super. 445, 268 A.2d 170 (1970). It is difficult for this Court to see any actual inconsistency between Jane’s direct testimony at trial and her statements as reported by O’Connell and Baugher. She testified that she passed Bailey while entering the rest room. This fact does not appear in the O’Connell or Baugher reports. Additionally, Baugher’s report contains no mention of Bailey’s having entered Jane’s stall two distinct times before the assault. However, as Judge Acker noted in his post-verdict opinion, the reports from which the witnesses at the evidentiary hearing read were mere summaries by the witnesses in paraphrase of what Jane had told them. The witnesses did not through independent recollection elaborate on the written words of their reports. Moreover, Baugher spoke with Bailey for half an hour before getting Jane’s story. There is therefore a clear inference that Baugher’s report was a compilation or distillation of what Baugher learned from both Jane and Bailey, rather than a summary of Jane’s words alone. The mere omissions of detail in O’Connell’s and Baugher’s written reports are not inconsistencies of the sort contemplated by the law as impeaching evidence. See In re Pittsburgh Action Against Rape, 494 Pa. 15, 428 A.2d 126 (1981). Mere dissimilarities or omissions in prior statements, even when the statements are the verbatim words of the victim, do not suffice as impeaching evidence; the dissimilarities or omissions must be substantial enough to cast doubt on a witness's testimony to be admissible as prior inconsistent statements. See Commonwealth v. Gee, 457 Pa. 123, 354 A.2d 875 (1976); In re Silverberg, 459 Pa. 107, 327 A.2d 106 (1974); Commonwealth v. Ryan, 253 Pa.Super. 92, 384 A.2d 1243 (1978); M. Greenberg & A. Bocchino, Pennsylvania Evidence 88 (1988); G. Lilly, An Introduction to the Law of Evidence § 83 at 303 (1978). A comparison of Jane’s testimony with her statements to O’Connell and Baugher, and consideration of the circumstances under which the statements themselves were taken and transcribed, lead us to conclude that a jury could not reasonably have doubted Jane’s testimony on the basis of the available evidence of her prior statements to O’Connell and Baugher.

It is arguable that Jane’s statement to Staul four days after the incident deviated more substantially from her testimony. Not only does Staul’s report not mention Jane and Bailey passing at the rest room door; the report seems to indicate further that Bailey was still in the rest room cleaning sinks when Jane entered, and that he did not exit until she went into her stall. However, there were compelling tactical reasons for counsel not to attempt to impeach Jane with the Staul statement.

Judge Acker indicated in his post-verdict opinion that he would have required counsel first to confront Jane on cross-examination with her prior statement in order to provide her the opportunity to explain or deny it. See Commonwealth v. Manning, 495 Pa. 652, 435 A.2d 1207 (1981); Commonwealth v. Brown, supra. Had Jane then successfully explained or denied the statement, counsel might have been impotent to rebut her explanation or denial.

First, counsel could not have used the Staul report itself as a tool to confront Jane with a prior inconsistency. A written report which is only a summary of the words of the victim and not verbatim notes from the victim cannot be used by the defendant to impeach the victim on cross-examination. Commonwealth v. Hustler, 243 Pa.Super. 200, 364 A.2d 940 (1976). The rationale for this rule is that it would be unfair to permit impeachment of a witness through the use of a police officer’s interpretation of what the witness said, rather than what the witness said verbatim. In re Pittsburgh Action Against Rape, supra; Commonwealth v. Pinder, 310 Pa.Super. 56, 456 A.2d 179 (1983); Commonwealth v. Hill, 267 Pa.Super. 264, 406 A.2d 796 (1979).

Secondly, it is not clear that counsel would have been allowed to impeach Jane’s testimony through direct testimony from Staul. Impeachment through extrinsic evidence is not generally allowed on matters collateral to the issues at trial. Lilly, supra, at § 84; see Commonwealth v. Brown, supra; In re Farms, supra; Greenberg & Bocchino, supra, at 89.

Thirdly, even assuming that the discrepancy between Jane’s direct testimony and Staul’s report was material to an issue at trial, i.e., credibility, the impeachment value of Staul’s testimony would have been greatly minimized by Jane’s testimony on cross-examination. After Jane had testified to passing Bailey at the rest room door, defense counsel elicited the following:

MR. WHERRY: Now, was Mr. Bailey in the rest room when you went in, or was he coming out of the rest room?
THE WITNESS: He was coming out.
MR. WHERRY: Did you ever see Mr. Bailey doing any cleaning in there?
THE WITNESS: Yes.
MR. WHERRY: When did you see him doing cleaning?
THE WITNESS: When I was going to come in.
MR. WHERRY: Okay. You saw him in there cleaning?
THE WITNESS: Uh huh.
MR. WHERRY: Was he cleaning sinks?
THE WITNESS: Yes.

There is a striking similarity between Jane’s trial testimony taken as a whole and the narrative contained in Staul’s report; the only essential difference is the allusion in Staul’s report to footfalls (presumably Bailey’s) leading out the rest room door after Jane entered her stall. And the effectiveness of Staul’s testimony in establishing that this allusion is not a rearrangement or misinterpretation of Jane’s words is doubtful. At the post-conviction hearing Staul’s testimony, like O’Connell’s and Baugher’s, consisted of nothing more than a direct reading from a report, with no elaboration on what Jane’s actual words were.

Against the questionable impeachment value of Staul’s testimony stood the danger to the defense that the Commonwealth would have been able to rehabilitate Jane effectively by having her prior consistent statements read into the record. As a general rule, prior declarations of a witness which are consistent with her in-court testimony are admissible to corroborate the witness only where it is alleged that the in-court testimony has been recently fabricated or stems from corrupt motives. Baldino v. Castagna, 308 Pa.Super. 506, 454 A.2d 1012 (1982). However, it is not necessary that an explicit allegation of recent fabrication be made; it is enough that the jury be reasonably able to infer that a party is imputing recent fabrication to the witness. Commonwealth v. Gore, 260 Pa.Super. 540, 396 A.2d 1302 (1978). In this case, had appellant attempted to prove that Jane had previously said that appellant was in the rest room until Jane entered her stall, the jury might reasonably have inferred that appellant was imputing recent fabrication to Jane’s trial testimony. At that point it would have been open to the Commonwealth to have Staul read his entire report to the jury to rebut the inference that Jane had made up her story. Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Kjersgaard, 276 Pa.Super. 368, 419 A.2d 502 (1980). Although the jury would not have been entitled to consider Jane’s prior consonant statements as proof of the matter contained in them, Commonwealth v. Wilson, 394 Pa. 588, 148 A.2d 234 (1959), the statements would have been admissible to rehabilitate Jane’s credibility in general, and in particular to corroborate the accuracy of her remembrance of the details of the actual assault. Commonwealth v. Cruz, supra; cf. Catina v. Maree, 498 Pa. 443, 447 A.2d 228 (1982) (error for court to permit entire statement to be read into record as rehabilitation evidence where statement contained inadmissible opinion evidence and did not meet the force of the impeaching portion of the statement).

We conclude that counsel was not ineffective for not attempting to impeach the victim in the manner suggested by appellant.

Appellant’s remaining allegations of ineffectiveness concern trial counsel’s failure to request or object to certain jury instructions.

Appellant claims that counsel was constitutionally ineffective for not requesting an instruction that the child witness’s testimony should be received with caution and carefully scrutinized before being accepted. In Commonwealth v. Barnosky, 264 Pa.Super. 443, 400 A.2d 168 (1979), this Court declined to adopt a rule requiring an “infant witness” charge like that suggested by appellant in cases in which a child witness has testified. Instead, we said that the matter is better left to the sound discretion of the trial judge based on his observation of the child’s testimony and the youth’s mental and emotional maturity. We also said that once the initial determination is made that the child is a competent witness, then the general charge on credibility will usually suffice as to all witnesses.

It is elementary that a finding of ineffectiveness can never be made unless we conclude that the alternatives not chosen by counsel offered a potential for success substantially greater than the tactics actually utilized. Washington v. Maroney, supra. Appellant has failed to show that a request for an infant witness charge offered a potential for success substantially greater than counsel’s quiescence, and therefore counsel cannot be found ineffective.

Appellant next argues that counsel should have objected to the instructions on the credibility of the child witness actually given by the trial court. The court charged as follows:

Credibility is entirely for your consideration. The Court has nothing to say as to who you will believe or what weight you will give the testimony of any witness or party. In determining the credibility of the witness, you will consider their manner of testifying, their apparent candor and frankness and fairness or lack of it, their bias or prejudice in the case if any, their means of observing that which they testify to, their corroboration, if any, by other witnesses, and their interest in the result. Now, in this case we have a child who testified. We all know that in looking at whether a child tells you the truth or not that sometimes children are given to fantasies, and that’s possible. There were questions asked of this child to attempt to support that possible theory____ The thrust of that type of testimony is to suggest that the girl is fantasizing the story which she told from the stand. Is she the type of a child that would do that or not? That’s for you to determine. You saw her, and you had the opportunity to evaluate her as to her abilities. On the other hand, you know that children are not as sophisticated as adults. By that I mean that they don’t have the experience and knowledge that many of us have as to the consequences of what they say or do; therefore, they may be conceivably more apt to tell the truth, because they don’t know what the effect of telling an untruth may be. I can’t say that necessarily is the case here as to this child, but I’m throwing that out as a basis of human nature. I’m not telling you anything that you don’t already know. I’m just bringing it to your minds. That I’m sure that you have all found out through human nature, through your own children, through yourself, as you were a child growing up.

Appellant contends that this charge indicated to the jury that children are inherently more believable than other witnesses, and that the judge believed Jane’s testimony in particular to be more credible than the defendant’s.

Appellant cites United States v. Meltzer, 100 F.2d 789 (7th Cir.1938), in which the court disapproved an instruction that a “stranger to the courts” might be considered more believable than witnesses who had appeared in court before. We do not accept appellant’s analogy between the instructions disapproved in Meltzer and those given in the present case. The trial judge in Meltzer suggested to the jury his own belief that the “stranger to the courts” was an honest man. The court in this case simply suggested the unsophistication of children as a factor, known through general human experience, which the jury could consider in reaching their verdict. The court did not opine that the particular child witness in this case was unsophisticated and therefore apt to tell the truth.

The trial judge may comment on the evidence as long as the jury is left free to act on its own view of the evidence. Commonwealth v. Austin, 274 Pa.Super. 1, 417 A.2d 1220 (1980); Commonwealth v. Dougherty, 259 Pa.Super. 88, 393 A.2d 730 (1978). It is well settled that the trial court’s instructions to the jury must be read as a whole, and that error cannot be predicated on isolated excerpts from the charge. Commonwealth v. Irwin, 494 Pa. 277, 431 A.2d 257 (1981); Commonwealth v. Todaro, 301 Pa.Super. 1, 446 A.2d 1305 (1982). Judge Acker’s charge on infant witness credibility was balanced, fair, unargumentative, and deferent to the jury. Counsel was not ineffective for accepting the charge as given. Compare Commonwealth v. Austin, supra, with Commonwealth v. Dougherty, supra.

Appellant finds counsel ineffective also for failing to object to the court’s instruction that the jury was to determine whether the defendant’s testimony or that of the Commonwealth’s witness was more realistic and logical in light of the other evidence. Appellant contends that, by allowing the jury to weigh the credibility of the opposing witnesses, the court reduced the Commonwealth’s burden of proof to one of preponderance of the evidence. Appellant does not dispute that the court otherwise properly instructed the jury on the Commonwealth’s burden of proof.

It is true that the Commonwealth bears the unshifting burden of proving each and every element of the crime charged beyond a reasonable doubt, Commonwealth v. Hinchcliffe, 479 Pa. 551, 388 A.2d 1068, cert. denied, 439 U.S. 989, 99 S.Ct. 588, 58 L.Ed.2d 663 (1978), but it is also true that credibility of witnesses is a matter exclusively within the province of the jury, and that in passing on the weight and credibility to be accorded to witness testimony the jury is free to believe all, part, or none of any witness’s testimony. Commonwealth v. Smith, 484 Pa. 71, 398 A.2d 948 (1979); Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976). These principles co-exist. A trial court does not err when it instructs the jury both on the Commonwealth’s burden of proof and on the jury’s exclusive prerogative to decide witness credibility. Because we believe the trial court’s instructions on witness credibility were a correct explication of the law, we find appellant’s claim of ineffectiveness on this count meritless.

Appellant’s next point is that counsel was ineffective for failing to object when the court in its charge repeatedly referred to the child witness as “Jane”, while referring to appellant as “Patrick Bailey”, “Mr. Bailey”, or “the defendant”. Appellant alleges that the court’s appellations prejudiced him by evidencing the court’s sympathy with the child. This point is frivolous. As Judge Acker noted in his opinion, it is customary and usual for adults to refer to nine-year-old children by their first names, and it might have seemed strained for the judge to refer to Jane by any other name. We would add only that it is unusual for judges to refer to adult defendants by their first names, and for Judge Acker to have called appellant “Patrick” would have seemed ludicrous.

Appellant finally contends that the court did not instruct the jury that lack of consent of the victim is an essential element of the crime of indecent assault; and that counsel’s failure to object to the charge on this ground was ineffectiveness. Appellant’s claim is contradicted in the record. The court did instruct the jury that a touching must be indecent, offensive to the victim, and without her consent to be indecent assault. See 18 Pa.C.S. § 3126; Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980).

Affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge: HESTER, Judge,

license: Public Domain

text:
    469 A.2d 615
    COMMONWEALTH of Pennsylvania v. George A. CORBIN, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 13, 1982.
    Filed Nov. 18, 1983.
    Petition for Allowance of Appeal Denied April 18, 1984.

      William C. Kriner, Clearfield, for appellant.
    F. Cortez Bell, III, Assistant District Attorney, Clearfield, for Commonwealth, appellee.
    Before HESTER, JOHNSON and POPOVICH, JJ.
   POPOVICH, Judge:

This is an appeal from the Order of the Court of Common Pleas of Clearfield County (per President Judge Reilly) denying, in part, appellant’s, George A. Corbin’s, ineffectiveness of counsel claim. See note 2, infra. We reverse and remand.

We have reviewed all of appellant’s claims and find that the only one meriting discussion concerns trial counsel’s failure to file pre-trial motions. For the reasons that are discussed infra, we maintain that trial counsel was ineffective for failing to file a motion to suppress the evidence obtained during the course of the police’s examination of the glove compartment and trunk of a vehicle linked to the appellant if no warrant existed to sanction the search and seizure.

Moreover, we find the cases of South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) and Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) to be distinguishable from the case at bar. There, the United States Supreme Court authorized the search of impounded vehicles by police, days after their seizure, for purposes of making an inventory of the contents so as to protect themselves and avoid the consequences of owner claims against the police over lost or stolen property. Instantly, unlike in Opperman and Cooper, the police were utilizing a national handbook to assist them in locating the vehicle’s registration number when the incriminating evidence was discovered. The purpose of the police’s conduct was not to inventory the vehicle as a precaution against possible claims by the true owner for loss of contents. Rather, the search conducted was for the specific purpose of locating potentially incriminating evidence against the driver-appellant, and, thus, “was a pretext concealing an investigatory police motive.” South Dakota v. Opperman, supra, 428 U.S. at 376, 96 S.Ct. at 3100. This is supported by the facts, i.e., after the appellant presented the police with a driver’s license inconsistent with the name of the vehicle’s owner, as told to them by the appellant, the police observed through the windshield that the vehicle’s identification number was “gone.” Thereafter, the vehicle was impounded and the following day the vehicle was searched and the evidence complained of (check-writing equipment, checks and a corporate seal) was seized from the glove compartment and trunk.

To adhere to any other position would be to sanction an illegal search for incriminating evidence under the guise of an inventory search, especially given the facts available to the police prior to the search which rendered the ownership of the vehicle suspect. In other words, the legal owner of the impounded vehicle was brought into question and the police’s “protective procedures [were but] a subterfuge for criminal investigations.” South Dakota v. Opperman, supra, 428 U.S. at 370 n. 5, 96 S.Ct. at 3097 n. 5. If we were to approve of such an activity by the authorities, henceforth the police could eschew the requirements of a warrant to search an impounded vehicle regardless of the object of their search. This goes far beyond what Opperman and Cooper envisioned.

In light of the fact that the search conducted by the police was not for inventory purposes, appellant’s trial counsel’s action in failing to file a motion to suppress the evidence seized raises a question as to his stewardship, which was dealt with by the court below and raised by appellant on appeal. In evaluating this claim, we' observe that we must make an independent review of the record and decide if the course of action counsel is charged with not pursuing had some reasonable basis. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 921 (1977). Only if the claim is ruled to be of arguable merit must we inquire into counsel’s reasons for not pursuing it. Commonwealth v. Strader, 262 Pa.Super. 166, 396 A.2d 697 (1978).

We find that the subject of the existence or non-existence of a warrant, which is pivotal to a determination of counsel’s stewardship, is not ascertainable from the documents provided to this Court, and, thus, another remand is necessary.

For example, at the evidentiary hearing conducted at this Court’s direction, see Commonwealth v. Corbin, 268 Pa.Super. 526, 408 A.2d 1128 (1979), to evaluate appellant’s various allegations of ineffectiveness attendant to his trials, one of which occurred on November 14-15, 1977 and is of concern to us here, counsel for appellant testified that he filed no pre-trial suppression motion or post-trial motions regarding the evidence seized by the Warren police. On this subject, the following exchange took place:

[By Mr. Kresner — appellant’s new counsel:]
Q Now, Mr. Corbin alleges, Mr. Blakley, that you were ineffective in failing to file Pre-Trial Motions prior to the November Trial. Did you consider filing any PreTrial Motions prior to the Trial?
[Benjamin S. Blakley, III — appellant’s trial counsel:]
A No, I didn’t.
Hs * * * * • Hi
Q He also alleges that you were ineffective in failing to object to certain evidence seized in the November Trial.
A I did object to it ... [when appellant] leaned over to me and asked me to object to it [at defense table] because he felt that there was not sufficient identification. And at that time, on the record, I did object to it.
Q And I don’t believe you filed Post-Verdict Motions on that basis. What was the reason there?
He Hi Hi * * *
A Based on the testimony raised at Trial, it was my opinion that the automobile had been sufficiently identified and that my Post-Trial Motions would have been frivolous. So I did not file them.
Q Now, Mr. Corbin has alleged in testimony that you gave him a copy of your Motion for New Trial and/or Verdict in Arrest of Judgment and told him that it had been filed when ultimately no such Motion was filed. You would agree that no such Motion was filed?
A III agree to that.
Q Would you agree that you gave such to Mr. Corbin and indicated to him that such was filed?
A I will assume that I gave a copy to Mr. Corbin—
* He He He He
THE WITNESS: Mr. Corbin has a copy of the Motion that I had prepared. I do not recall telling him that I had definitely, filed it. I — I believe that I discussed the situation with Mr. Corbin. I cannot be sure, two years later, exactly what words were stated to Mr. Corbin.
Q ... Appellant, Mr. Corbin, ... indicates] basically that there “were Pre-Trial Motions which you could have filed which you did not file because of a lack of experience?
A I — it [ — a letter written by Attorney Blakley to the appellant dated March 28, 1978 — ] doesn’t specify PreTrial Motions, Post-Trial Motions, it just says certain things. There are certain tactical moves which I, had I been aware of them, and which I may become aware of ten years from now, I probably could have filed. I’m not aware of any. I suppose if I would have chosen to employ some delaying tactics or so forth, I might have been able to do it. I know of none now. Undoubtedly a more experienced attorney could — could have done it. I was explaining to Mr. Corbin, at the time of this Trial, I had been sworn in at the Supreme Court about a week and a half, a week before.
Q Before what, Mr. Blakley?
A Before this Trial.
Q Before the November Trial?
A Before the November Trial. I was sworn in the first week of November of ’77. This was my first Trial. I was explaining to Mr. Corbin why certain — why I was not acting as an F. Lee Bailey.
sj; sK
Q ... Would you read the exact sentence which is underlined [in the letter sent by you to the appellant and dated March 28, 1978.]
A I realized at the November Trial there were certain things that I could have filed that I did not file and I told you this in January, the reason being that I was fresh out of law school and was not aware of the proper procedures at that time.
Q The proper procedures at that time. In retrospect, Mr. Blakley, were there any Motions which you at this point feel that you should have filed but for your inexperience?
A There are Motions that I believe could, have been filed but probably would have been frivolous. I don’t believe that I would have conducted myself any differently than I did at the time. There are many things that could have been filed.
(Emphasis added) (N.T. 10/17-18/79 at 159, 160-161, 162-163, 165-167)

Appellant’s trial counsel’s belief that the filing of a motion to suppress would have been a useless gesture was reaffirmed during his cross-examination by the Commonwealth’s attorney; viz.:

Q Now, you said that you could have filed a number of Pre-Trial Motions, but you felt that they were fruitless. I believe those were your words, is that correct?
A Yes.
Q That included your feeling that an attempt to Suppress this evidence taken and used against the Defendant would have been fruitless to file a Motion to Suppress that?
A Given what I knew, yes.
(Emphasis added) (N.T. 10/17-18/79 at 174)

Keeping the aforesaid in mind, we turn to the record which reveals that on November 14, 1977, the date appellant’s second trial commenced, appellant also was scheduled for criminal court for a third trial charging similar offenses arising out of a separate incident (but using the same evidence seized in the November trial) which resulted in his conviction on January 23, 1978. Of interest here is the fact that on January 17, 1978 Attorney Blakley did file an “Omnibus Pre-Trial Motion For Suppression of Evidence” in which the following averments were made:

1. That your Petitioner is charged with the crimes of forgery, receiving stolen property and criminal conspiracy.
2. That your Petitioner is scheduled for trial on January 23, 1977 [ — sic 1978].
3. That the Commonwealth intends to introduce certain physical evidence obtained by the Warren PA Police Department from a Cadillac Eldorado allegedly belonging to the petitioner. Such evidence consisting of a checkwriting machine, a box of unused checks and a corporate seal.
4. That your Petitioner’s rights will be violated by the introduction of the said physical evidence for the following reasons:
A) That the Warren Pa Police Department lacked probable cause to impound said Cadillac Eldorado prior to the search of said vehicle leading to the discovery of the aforesaid physical evidence.
B) That the Warren PA Police Department failed to obtain proper search warrant before conducting a search of said Cadillac Eldorado.
C) That if a search warrant was issued prior to the search of said vehicle, such search warrant was issued without probable cause.
D) That for the reasons set forth above, petitioners [sic] rights under the United States Constitution and Pennsylvania Constitution would be violated if the physical evidence obtained during the search of said Cadillac Eldorado is introduced.

WHEREFORE, your Petitioner respectfully requests that this Court direct the Commonwealth to show cause why the physical evidence obtained by the Warren PA Police Department should not be suppressed.

Respectfully submitted,
/s/ Benjamin Spencer Blakley III
Benjamin Spencer Blakley III
Assistant Public Defender

(Emphasis added) (Record at page 23)

On January 20, 1978, the date set for hearing appellant’s Motion to Suppress, the court entered an Order granting the suppression of the evidence listed in the Motion because “the District Attorney ... indicated no opposition thereto[.]” (Record at page 25) It seems difficult for this Court to perceive that by appellant’s third trial counsel would be totally ignorant of the existence of a warrant, although such a conclusion can be drawn from a reading of Attorney Blakley’s Motion to Suppress at Point 4, paragraphs (B) & (C).

Thus, in light of the aforecited, it cannot be seriously argued that the record contains evidence to establish the absence of a warrant. Were we to hold trial counsel ineffective without assuring ourselves that a search warrant was not secured by the Warren police prior to the seizure of the incriminating evidence from the Cadillac Eldorado, such a procedure would assault the tenet that “counsel should be afforded the opportunity to explain his choice of strategy at an evidentiary hearing.” Commonwealth v. Lambeth, 273 Pa.Super. 460, 462, 417 A.2d 739, 740 (1979). This requirement has not been satisfied by the hearing held on October 17-18, 1979, and, thus, the record is silent on the subject of ineffectiveness. In Commonwealth v. Robinson, 298 Pa.Super. 447, 444 A.2d 1260 (1982) a panel of this Court was confronted with an identical problem and handled it in the following manner:

[We] will not automatically deem counsel ineffective for failing to present the suppression motion timely. Counsel ■ will not be deemed ineffective when he fails to pursue a meritless claim. Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979). In this case, however, because of the inadequacy of the record, it is not possible to conclude that the motion to suppress had arguable merit.
The affidavit supporting the search warrant is not in the record and the lower court did not address the issue. We therefore remand to the trial court with direction to order the party in possession to produce the search warrant and affidavit and to conduct an evidentiary hearing on the question of whether the suppression motion had arguable merit. If the lower court determines that counsel was ineffective, appellant should be allowed to file a suppression motion nunc pro tunc.
The judgment of sentence is reversed and case remanded.

Id. 298 Pa.Super. at 453-54, 444 A.2d at 1263-64.

In accordance with Robinson, this case will be remanded with directions to require the person in possession of the search warrant, if one does exist, to produce it and then have the trial court assess the probable cause section in accordance with accepted standards.

On the other hand, if a warrant was not secured by the authorities, failure to raise in a pre-trial motion such an arguably meritorious claim cannot be said to have been a course of action designed to effectuate a client’s interest. See Commonwealth v. Segers, 479 Pa. 108, 387 A.2d 858 (1978); cf. Commonwealth v. Byrd, 250 Pa.Super. 250, 256, 378 A.2d 921, 924 (1977) (“We can perceive no reasonable legal basis for an attorney to fail to object to a violation of his client’s right to speedy trial under Pa.R.Crim.P. 1100.” (Citation omitted)). This is especially so given the interpretation of the officers’ actions (motive) in searching the vehicle. (N.T. 11/14-15/77 at 83-94)

Consequently, if a remand establishes that the search was a warrantless one, it seems clear to us that counsel was ineffective. Appellant should be then afforded the opportunity to file a suppression motion nunc pro tunc, see Commonwealth v. Robinson, supra, and have the case proceed through the judicial process as any other matter, for it'may be that the Commonwealth can secure a conviction in the absence of the seized evidence as occurred in appellant’s January 23, 1978 trial.

Order reversed and case remanded. Jurisdiction is relinquished.

JOHNSON, J., concurs in the result.

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

HESTER, Judge,

concurring and dissenting:

While I concur with the majority opinion that the lower court correctly resolved the four allegations of ineffective assistance of counsel alleged by appellant against his trial counsel for failing to file certain motions concerning: 1) a delay in the preliminary arraignment; 2) a delay in the preliminary hearing; 3) holding a preliminary hearing without assistance of counsel for appellant; and 4) double jeopardy. I believe these issues merit discussion due to the complex factual nature of this case and errors contained in the lower court’s reasoning regarding their resolution. Thus, I will first discuss the procedural history of this case to better elucidate the issues that are now before us.

Appellant was arrested and charged with three counts of forgery, four counts of receiving stolen property, and eight counts of criminal conspiracy. The District Attorney’s Office of Clearfield County decided to prosecute appellant in three separate trials. Appellant was tried and convicted on September 21, 1977, on charges of forgery and receiving stolen property. The second trial occurred on November 14 and 15, 1977, when appellant was again convicted of forgery, receiving stolen property, and criminal conspiracy. Appellant was tried for the third time on similar charges on January 23, 1978, and was similarly convicted on all counts.

Appellant, through his counsel, filed an appeal with this Court alleging error with the first and the third ■ trials. Appellant also filed a pro se brief claiming ineffective assistance of counsel in all three trials. In remanding the convictions stemming from the first two trials to the lower court, we ruled:

“Inasmuch as we are unable to determine from the record before us whether or not defendant was represented by ineffective counsel either pretrial, trial, or post trial in either of the first two trials (one on September 21, 1977 and the other on November 15, 1977), we are remanding the cases tried on those two dates. The court below is directed to hold an evidentiary hearing to determine the question of effectiveness of counsel. If it is determined that counsel for defendant was ineffective in one or both of said trials, then the defendant shall be granted a new trial in one or both series of charges. If on the other hand it is determined that counsel was not ineffective in either of said trials, the judgment of said sentences following those trials will be affirmed.
We affirm the convictions in the cases tried on January 23, 1978, however, this group of cases is remanded to the court below for resentencing in the event that a new trial should be granted in either of the other series. After the court below has made its decisions, either party may appeal.”

Commonwealth v. Corbin, 268 Pa.Super. 526, 535, 408 A.2d 1128, 1132 (1979). A hearing was held in accordance with our Order on October 17-18, 1979, and on December 5, 1979. Following the hearing and the submission of briefs by both parties, the lower court granted a new trial as to the first trial but affirmed the convictions secured by the second trial.

The present appeal is thus limited to appellant’s claim of ineffective assistance of counsel at his second trial on November 14-15, 1977. First, I will address appellant’s contention that neither his preliminary arraignment nor preliminary hearing was timely. In the case sub judice, appellant was arrested on June 22, 1977 on a parole violation. Appellant was not arrested on the charges for which he was tried on three separate occasions until July 12, 1977. On that same day, appellant was taken before District Magistrate Wesley J. Read in Dubois, Pennsylvania, for his preliminary arraignment. Thus, appellant’s contention that his preliminary arraignment was untimely is meritless.

At the time of his preliminary arraignment, appellant was advised of his right to be represented by a public defender. Appellant rejected legal representation, and instead, elected to hire his own counsel. However, on July 19, 1977, the day of his preliminary hearing, appellant still had not retained counsel; a one-week continuance was granted until July 26, 1977. On that date, appellant’s counsel, Robert Garshak, and the attorney for the Commonwealth agreed to continue the hearing until August 5, 1977, at 9:00 a.m. However, on that date, Mr. Garshak arrived more than an hour after the hearing was to begin and indicated to Magistrate Read that he was withdrawing from the case. Appellant then requested, contrary to his previous declarations, that an attorney be appointed to represent him.

The Commonwealth, fully prepared to proceed with the preliminary hearing, objected to any further delays. Magistrate Read granted the Commonwealth’s motion to proceed and thereafter held appellant for trial on three counts of forgery, four counts of receiving stolen property, and eight counts of criminal conspiracy.

I conclude that appellant’s allegation that his preliminary hearing was untimely is without merit in that the first scheduled hearing was well within the prescribed time limits and the continuances were granted for good cause.

Appellant next contends that his lack of representation at the August 5, 1977 preliminary hearing constituted reversible error, and that his court-appointed trial counsel was ineffective for not raising this issue. It is axiomatic that the preliminary hearing is a “critical stage” of a criminal proceeding at which appellant is entitled to the assistance of effective counsel. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Carver, 292 Pa.Super. 177, 436 A.2d 1209 (1981); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977); Commonwealth v. Redshaw, 226 Pa.Super. 534, 323 A.2d 92 (1974). However, lack of representation at a preliminary hearing must result in specific prejudice to a defendant in order to constitute a basis for relief. Coleman v. Alabama, supra; Commonwealth v. Sawyer, 238 Pa.Super. 213, 357 A.2d 587 (1976); Commonwealth v. Redshaw, supra 226 Pa.Super. at 536, 323 A.2d at 93. “If appellant suffers no prejudice, he is entitled to no remedy.” Commonwealth v. Rines, supra, 247 Pa.Super. at 432, 372 A.2d at 903 (citations omitted); Commonwealth v. Carver, supra 292 Pa.Super. at 179-180, 436 A.2d at 1211.

Appellant has made no allegation of specific prejudice and the record reveals none, for appellant received a second preliminary hearing prior to his second trial. Furthermore, as noted by the district attorney at the evidentiary hearing, the Commonwealth had all of its witnesses present on both August 5, 1977, and July 26, 1977. Moreover, even though the hearing on July 26, 1977, was continued due to a conflict arising between the Commonwealth’s and appellant’s counsel, appellant’s counsel stated that he would have not represented appellant at that hearing due to the fact that he had not received his fee. In addition, Mr. Garshak arrived an hour late for the August 5, 1977, hearing, and then withdrew his appearance as a result of not having been compensated. The Commonwealth’s witnesses were so infuriated by the delays that one left, resulting in the Commonwealth being unable to proceed in one of its cases against appellant.

The absence of counsel at the August 5, 1977, hearing was the fault of appellant and his counsel, Mr. Garshak. At his preliminary arraignment on July 12, 1977, appellant was advised of his right to have court-appointed counsel and he failed to exercise that right. The original preliminary hearing had to be continued due to a fee dispute between appellant and his counsel. Furthermore, this fee dispute had not been resolved by August 5, 1977. Either appellant or Mr. Garshak should have informed the magistrate prior to that date of their conflict so that counsel could have been appointed for appellant. Therefore, appellant’s trial counsel was not ineffective for failing to pursue this meritless issue.

Appellant next raises the issue of whether he was subjected to double jeopardy. In Commonwealth v. Miller, 278 Pa.Super. 103, 106-107, 419 A.2d 1378, 1380 (1980), we stated the law to be applied in such instances:

“In the case of Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974), our Supreme Court held that double jeopardy considerations require a prosecutor to bring, in a single proceeding, all known charges against a defendant arising from a ‘single criminal episode.’ Shortly after that decision, the General Assembly put into effect section 110 of the Crimes Code which provides in pertinent part:
‘Although a prosecution ... is based on different facts [than a former prosecution], it is barred by such former prosecution under the following circumstances:
(1) The former prosecution resulted in an acquittal or in a conviction as defined in section 109 of this title ... and the subsequent prosecution is for:
(i) any offense of which the defendant could have been convicted on the first prosecution;
(ii) any offense based on the same conduct or arising from the same criminal episode, if such offense was known to the appropriate prosecuting officer at the time of the commencement of the first trial and was within the jurisdiction of a single court unless the court ordered a separate trial of the charge of such offense;
Applying section 110 to the instant situation, we conclude that appellant is not entitled to discharge. To win discharge under § 110(l)(ii), appellant would have to prove that his offenses were ‘based on the same conduct or ar[ose] from the same criminal episode.’ See Commonwealth v. Shelhorse, 252 Pa.Super. 475, 381 A.2d 1305 (1977). The record in the instant case reveals that indictments numbers 305 and 47 charged appellant with theft and conspiracy offenses occurring on the same premises and against the same victim. The criminal incidents represented by each indictment entailed, however, distinct entries into the same residence and were temporally separated by a period of at least six hours. Under these circumstances, we hold that the ‘same criminal episode’ test of Campana and section 110 has not been met, and therefore the instant prosecution is not prohibited.”

In the present case, the offenses faced by appellant in his second trial not only occurred at a different time than the offenses charged in the first trial as in Miller, supra, but also involved different locations and parties. I therefore conclude that appellant was not subjected to double jeopardy in the lower court proceeding, and thus, his trial counsel was not ineffective for failing to raise this issue.

Regarding appellant’s final issue concerning appellant’s allegation that his trial counsel was ineffective for not perserving for appellate review the issue involving the search of appellant’s vehicle, I must respectfully dissent concerning this issue. The facts surrounding this search and seizure are as follows. On May 13, 1977, Sergeant Nearing of the Warren Borough Police Department observed a Cadillac automobile parked in a no parking zone outside a tavern. Sergeant Nearing proceeded into the establishment and inquired as to the ownership of the vehicle. Appellant responded, “I am the owner”, and/or “I am driving it.” The officer then checked on the license plate number. Appellant produced a driver’s license issued to John T. Krakowsky, one of his aliases. Sergeant Nearing was then informed by appellant that the car was owned by George Corbin.

Failing to secure a record for the vehicle, Officer Moore, Sergeant Nearing’s partner at the scene, checked through the windshield to view the vehicle I.D. number. Finding it to be missing, the officers subsequently impounded the vehicle. The next day, they procured a national auto theft book and searched the vehicle for an identification number. During this search, the officers followed the instructions in the book and opened the glove compartment. Although they did not find the missing number, they did discover the corporate seal of the Spruce Hill Equipment Corporation in plain view. Continuing their search for the vehicle identification number, the officers inspected the trunk of the vehicle where they observed in plain view a check-writing machine and a box of checks belonging to the Spruce Hill Equipment Corporation. These objects were subsequently used as evidence at appellant’s second trial.

The police officers quite properly impounded the car after learning that the license plate was not registered and that the dashboard vehicle identification number was absent. However, the record is devoid of any mention as to whether the officers who conducted the search of the entire vehicle, including the glove compartment and trunk, possessed a search warrant or whether appellant’s counsel had knowledge of the existence of such a warrant.

In South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976), the United States Supreme Court, in upholding the warrantless search of a motor vehicle, stated:

When vehicles are impounded, local police departments generally follow a routine practice of securing and inventorying the automobiles’ contents. These procedures developed in response to three distinct needs: the protection of the owner’s property while it remains in police custody, United States v. Mitchell, 458 F.2d 960, 961 (CA9 1972); the protection of the police against claims or disputes over lost or stolen property. United States v. Kelehar, 470 F.2d 176, 178 (CA5 1972); and the protection of the police from potential danger, Cooper v. California, supra [386 U.S. 58] at 61-62, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790-791]. The practice has been viewed as essential to respond to incidents of theft — or vandalism. See Cabbler v. Commonwealth, 212 Va. 520, 522, 184 S.E.2d 781, 782 (1971), cert. denied, 405 U.S. 1073, 31 L.Ed.2d 807, 92 S.Ct. 1501 (1972); Warrix v. State, 50 Wis.2d 368, 376, 184 N.W.2d 189, 194 (1971). In addition, police frequently attempt to determine whether a vehicle has been stolen and thereafter abandoned. (Emphasis added).

And at 428 U.S. 367-68, 96 S.Ct. 3096, 1004 of 49 L.Ed.2d:

This Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment. Although automobiles are “effects” and thus within the reach of the Fourth Amendment, Cady v. Dombrowski, 413 U.S. 433, 439, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not. Cardwell v. Lewis, 417 U.S. 583, 589, 41 L.Ed.2d 325, 94 S.Ct. 2464 [2468], 69 Ohio Ops.2d 69 (1974); Cady v. Dombrowski, supra [413 U.S.] at 439-440, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2527]; Chambers v. Maroney, 399 U.S. 42, 48, 26 L.Ed.2d 419, 90 S.Ct. 1975 [1979] (1970).
The reason for this well-settled distinction is two-fold. First, the inherent mobility of automobiles creates circumstances of such exigency that, as a practical necessity, rigorous enforcement of the warrant requirement is impossible. Carroll v. United States, 267 U.S. 182, 153-154, 69 L.Ed. 543, 45 S.Ct. 280 [285], 39 ALR 790 (1925); Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 29 L.Ed.2d 564, 91 S.Ct. 2022 [2034-2035] (1971). But the Court has also upheld warrantless searches where no immediate danger was presented that the car would be removed from the jurisdiction. Chambers v. Maroney, supra [399 U.S.] at 51-52, 26 L.Ed.2d 419, 90 S.Ct. 1975 [at 1981-1982]; Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788 (1967). Besides the element of mobility, less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office. In discharging their varied responsibilities for ensuring the public safety, law enforcement officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly noncriminal in nature. Cady v. Dombrowski, supra [413 U.S.] at 442, 37 L.Ed.2d 706, 93 S.Ct. 2523 [at 2528]. Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.

The expectation of privacy as to automobiles is further diminished by the obviously public nature of automobile travel. Only two Terms ago, the Court noted:

“One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects____ It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, supra [417 U.S. 583] at 590, 41 L.Ed.2d 325, 94 S.Ct. 2464 [at 2469], 69 Ohio Ops.2d 69.

And at 428 U.S. 371, 96 S.Ct. 3098, 1006 of 49 L.Ed.2d:

The majority of the Federal Courts of Appeals have likewise sustained inventory procedures as reasonable police intrusions. As Judge Wisdom has observed:
“[W]hen the police take custody of any sort of container [such as] an automobile ... it is reasonable to search the container to itemize the property to be held by the police. [This reflects] the underlying principle that the fourth amendment proscribes only unreasonable searches.” United States v. Gravitt, 484 F.2d 375, 378 (CA5 1973), cert. denied, 414 U.S. 1135, 38 L.Ed.2d 761, 94 S.Ct. 879 (1974).

And at 428 U.S. 372-73, 96 S.Ct. 3098-99, 1007 of 49 L.Ed.2d:

The decisions of this Court point unmistakably to the conclusion reached by both federal and state courts that inventories pursuant to standard police procedures are reasonable. In the first such case, Mr. Justice Black made plain the nature of the inquiry before us:
“But the question here is not whether the search was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment.” Cooper v. California, 386 U.S., at 61, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790] (emphasis added).
And, in his last writing on the Fourth Amendment, Mr. Justice Black said:
“[T]he Fourth Amendment does not require that every search be made pursuant to a warrant. It prohibits only ‘unreasonable searches and seizures.’ The relevant test is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. The test of reasonableness cannot be fixed by per se rules; each case must be decided on its own facts.” Coolidge v. New Hampshire, 403 U.S., at 509-510, 29 L.Ed.2d 564, 91 S.Ct. 2022 [at 2059-2060] (concurring and dissenting) (emphasis added).
In applying the reasonableness standard adopted by the Framers, this Court has consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents. In Cooper v. California, supra, the Court upheld the inventory of a car impounded under the authority of a state forfeiture statute. Even though the inventory was conducted in a distinctly criminal setting and carried out a week after the car had been impounded, the Court nonetheless found that the car search, including examination of the glove compartment where contraband was found, was reasonable under the circumstances. This conclusion was reached despite the fact that no warrant had issued and probable cause to search for the contraband in the vehicle had not been established. The Court said in language explicitly applicable here:
“It would be unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” 386 U.S., at 61-62, 17 L.Ed.2d 730, 87 S.Ct. 788 [at 790-91].

In the present situation, the police were attempting to determine if the vehicle had been stolen since the dashboard vehicle I.D. number was missing. In continuing their attempt to locate the vehicle I.D. number, the police, following the instructions in the national auto theft book, opened the glove compartment and trunk and found the corporate seal, check-writing machine, and the box of checks which were admitted into evidence. Thus, the conduct of the police was not “unreasonable” under the Fourth Amendment, because the car was validly held. South Dakota v. Opperman, supra, and Cooper v. California, supra.

Therefore, I submit that counsel was not ineffective for failing to raise this issue and thus I would affirm the judgment of the lower court.

      . We note that the charges lodged against the appellant were all the outgrowth of a check cashing scheme that occurred, as is evident from the criminal complaints filed by Trooper Ronald Amon, on June 13th, May 5th and April 19th of 1977. Each of the fraudulent checks linked to the appellant resulted in separate trials of September 21, 1977, November 14-15, 1977 and January 23, 1978.
      As far as we can decipher from the record, since the transcript of the September trial is not included herein, at the November trial the evidence seized from the Cadillac Eldorado was introduced to buttress the Commonwealth’s case against the appellant. Thus, it was a factor in his conviction.

      . Pursuant to this Court’s directive, see Commonwealth v. Corbin, 268 Pa.Super. 526, 408 A.2d 1128 (1979), a hearing was conducted to evaluate appellant’s various allegations of ineffectiveness attendant to his trials, one of which occurred on September 21, 1977 and the other on November 14-15, 1977. The hearing judge, after the proceedings were completed, held that "a new trial must be granted to the [appellant] for the September 21st trial.” (Lower Court Opinion at 3) We see no reason, based on the claims made and the facts presented in regard thereto, to disturb this ruling.

      As an aside, we note that the Commonwealth filed a “Petition For Nolle Prosequi” on May 15, 1981; therein it stated:
      8. That on January 22, 1981, by Order of your Honorable Court, the defendant was granted a new trial with regards [sic] to the first trial by jury which was held on September 21, 1977.
      9. After remand by your Honorable Court, it was discovered that through no fault of the Clearfield County District Attorney’s Office, evidence necessary to commence trial in this particular case had been destroyed and lost, despite diligent efforts by the District Attorney’s Office to locate same. Therefore, we will be unable to proceed in this matter.
      (Record at page 76)
      The court entered an Order dated May 14, 1981 holding that a nolle prosequi be granted with regard to one count of forgery and receiving stolen property, of which the defendant was convicted on September 21, 1977. All other matters in connection with the case (77-610-CRA) were to remain the same.

      . 18 Pa.C.S.A. § 4101.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . Pa.R.Crim.P. 123(a)-(c) is as follows:
      "(a) Where the offense charged is bailable before an issuing authority and the defendant has been arrested in a county other than where the warrant of arrest was issued, the arresting person shall take the defendant to an issuing authority in the county of arrest for the purpose of posting bail.
      (b) Such issuing authority shall advise the defendant of his right to post or waive bail. Unless the right to post bail is waived, the defendant shall be admitted to bail conditioned upon his appearance for the preliminary arraignment before the issuing authority whose name appears on the warrant at a date certain not less than five (5) nor more than ten (10) days thereafter.
      (c) A defendant may post bail to appear at a preliminary hearing, or if the attorney for the Commonwealth does not object, he may waive preliminary hearing and post bail to appear in court. Where an objection is made to such waiver, the defendant may post bail only for his appearance at the preliminary hearing.”
      In reaching this conclusion, I must disagree with the lower court which found that the preliminary arraignment was held twenty-one days after appellant was arrested. Appellant’s arrest on June 12, 1977, was for a parole violation in Allegheny County, and thus has no relevance as to this issue. Also, if the lower court concluded, as it did, that appellant’s preliminary arraignment and hearing were untimely, this would not only be grounds for granting a new trial as to the September 21, 1977 case but also for the November 14-15, 1977 trial which is at issue in this appeal, since appellant’s preliminary arraignment and hearing encompassed not only the charges for the first trial but also the November 14-15, 1977 trial.

      . Appellant has also raised the issue of whether the lower court erred in not recusing itself from the evidentiary hearing in that the rulings alleged to be prejudicial involving appellant’s first trial which was reversed by the lower court, I find appellant's contention to be groundless.


author: HOFFMAN, Judge:

text:
    469 A.2d 626
    Theodora A. ROSENBERG, Appellant, v. David E. ROSENBERG. (Two Cases) David E. ROSENBERG v. Theodora A. ROSENBERG, Appellant. David E. ROSENBERG, Appellant, v. Theodora A. ROSENBERG. Theodora A. ROSENBERG v. David E. ROSENBERG, Appellant.
    Superior Court of Pennsylvania.
    Argued April 27, 1983.
    Filed Nov. 18, 1983.
    Petition for Allowance of Appeal Denied April 24, 1984.

      Stanley W. Greenfield, Pittsburgh, for Theodora A. Rosenberg.
    Hilary Wedner Braun and Paul J. Leventon, Pittsburgh, for David E. Rosenberg.
    Before ROWLEY, POPOVICH and HOFFMAN, JJ.
   HOFFMAN, Judge:

This case involves several consolidated appeals from the lower court’s determination of various claims arising from the parties’ September, 1976 property settlement agreement. Finding no merit in the parties’ numerous claims, we affirm the order and decrees of the court below.

On September 8, 1976, contemporaneous with their divorce, the parties, Mr. and Mrs. Rosenberg, entered into a detailed property settlement agreement. Three separate actions resulted. In mid-October Mrs. Rosenberg sought specific performance of the settlement agreement alleging that Mr. Rosenberg had failed to provide her with several items to which he had agreed in the settlement. Mr. Rosenberg counter-claimed averring Mrs. Rosenberg’s anticipatory repudiation of the agreement because she had allegedly refused, contrary to the agreement, to vacate the parties’ pre-divorce residence. Mr. Rosenberg then sought to enjoin Mrs. Rosenberg from remaining at the house. Finally, Mrs. Rosenberg petitioned for child support. After hearing the three cases together, the lower court found that Mrs. Rosenberg had anticipatorily breached the agreement, enjoined her from living in the residence, completely reinstated the September, 1976 agreement and ordered Mr. Rosenberg to pay a retroactive amount of child support. Both parties have appealed that order.

Mrs. Rosenberg contends first that the lower court erred in refusing to admit evidence of Mr. Rosenberg’s misrepresentations under the fraud exception to the parol evidence rule. We find no merit in this contention. “The parol evidence rule seeks to preserve the integrity of written agreements by refusing to permit the contracting parties to alter the import of their contract through the use of contemporaneous oral declarations.” Rose v. Food Fair Stores, Inc., 437 Pa. 117, 120, 262 A.2d 851, 853 (1970). “[I]f the written agreement was intended by the parties to encompass the matter in dispute, then evidence of a contrary nature based upon an oral agreement at the time of the execution of the written agreement [is] barred in the absence of fraud, accident or mistake.” Boyd Estate, 394 Pa. 225, 232, 146 A.2d 816, 820 (1958). The contracting parties may introduce evidence of fraudulent misrepresentations “to modify or avoid a written contract if it is averred and proven that they were omitted from the (complete) written contract by fraud, accident or mistake.” Bardwell v. The Willis Co., 375 Pa. 503, 507, 100 A.2d 102, 104 (1953) (emphasis in original). Mrs. Rosenberg argues specifically that Mr. Rosenberg represented that in addition to the provisions in the written property agreement, he would provide her with a house (including renovations and furnishings) worth $250,000, vacations, summer camp for the children, a new car annually, and gasoline for the car. The lower court tentatively admitted the testimony but later determined that the alleged misrepresentations failed to embody the fraud necessary for an exception to the parol evidence rule.

Two pertinent portions of the parties’ agreement are as follows:

PARAGRAPH ELEVENTH: ... Further, subsequent to the closing of the purchase by the WIFE of such new residence, the HUSBAND and the WIFE will mutually agree as to certain labor and materials which the HUSBAND shall provide to the WIFE for alterations, repairs, decorating and refurbishing said residence, together with the amount and the manner of repayment of such costs if such be their agreement at that time.
PARAGRAPH TWENTY-SEVENTH: This Agreement contains the entire agreement between the parties with respect to the subject matter hereof and may not be modified or amended except by a further Agreement or writing duly executed by both parties hereto. Any waiver by either of the parties of any of the terms of this Agreement shall not be construed an amendment of the Agreement, and either the HUSBAND or the WIFE may insist upon the performance of this Agreement in accordance with its terms irrespective of any such prior waiver or any prior course of conduct or action inconsistent with the provisions hereof.

We agree with the lower court that Mrs. Rosenberg has failed to demonstrate that the parties orally agreed upon certain items that were then fraudulently omitted from the written agreement. First, Paragraph Eleventh expressly discusses the manner in which Mr. Rosenberg agreed to pay for any alterations and renovations in Mrs. Rosenberg’s new home. In light of this clear mention of Mrs. Rosenberg’s new home and the accompanying renovations, and considering the subjects covered in the remainder of the agreement, e.g., medical expenses, country club memberships and use, child support, etc., we find that had the parties intended the agreement to cover summer camp, vacations and automobiles, these items would surely have been specifically mentioned. Furthermore, Paragraph Twenty-Seventh specifically states that “[t]his Agreement contains the entire agreement between the parties with respect to the subject matter hereof.” Accordingly, we find that the lower court correctly evaluated the evidence and applied the parol evidence exclusion.

Mrs. Rosenberg further contends that the lower court erred in not permitting the introduction of parol evidence to explain an alleged ambiguity in Paragraph Eleventh. We find that the lower court correctly refused the introduction of this parol evidence as well. Paragraph Eleventh, as noted above, states that the parties will mutually agree on labor and materials for the renovation of Mrs. Rosenberg’s new residence. Mrs. Rosenberg argues that an ambiguity exists because the value of the home and renovations for which she claims Mr. Rosenberg is responsible, $250,000, was omitted. She alleges that several witnesses were available to testify that Mr. Rosenberg orally represented that he would pay that specific amount. “In order for [the court] to find an ambiguity in the agreement, we must find that the document is reasonably capable of two different interpretations.” Merriam v. Cedarbrook Realty, Inc., 266 Pa.Superior Ct. 252, 259, 404 A.2d 398, 401 (1979) (appellant attempted to create an ambiguity through parol evidence when agreement was not ambiguous on its face). See also Kohn v. Kohn, 242 Pa.Superior Ct. 435, 442, 364 A.2d 350, 353 (1976) (parol evidence may resolve an ambiguity if the meaning of a term is unclear; however, parol evidence may not alter the terms of the contract). In the instant case, we find only one reasonable interpretation of the pertinent part of Paragraph Eleventh: after Mrs. Rosenberg had closed on a new home, the parties would agree on the labor, materials, and costs necessary to alter, repair, decorate, and refurbish the house. Mrs. Rosenberg’s attempt to introduce parol evidence of a specific amount of money to be spent on the renovations would change the terms of this portion of the agreement. As it reads, the exact amount to be spent on labor and materials remains open, pending appellee’s closing on a new house, presumably so that the parties could agree on the renovations needed for the particular house purchased. We therefore find that the lower, court correctly determined that no ambiguity existed that would require the introduction of parol evidence.

Mrs. Rosenberg next disagrees with the lower court’s finding her in anticipatory breach of the settlement agreement.

A repudiation is (a) a statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach ...

Restatement of Contracts, Second, § 250. Comment (b) reads:

In order to constitute a repudiation, a party’s language must be sufficiently positive to be reasonably interpreted to mean that the party will not or cannot perform ...

See McClelland et al. v. New Amsterdam Casualty Co., 322 Pa. 429, 185 A. 198 (1936) (renunciation requires “absolute and unequivocal refusal to perform”); McCormick v. Fidelity and Casualty Co., 307 Pa. 434, 161 A. 532 (1932) (unequivocal act evidencing “an intent not to fulfill his executory agreement at the time specified”). Here, the agreement required Mrs. Rosenberg to vacate the marital residence by December 31, 1976. Mr. Rosenberg testified that he first became aware of Mrs. Rosenberg’s refusal to move out of the house in early October, 1976. (N.T. May 14, 1980 at 1250). Mrs. Rosenberg testified that she had refused to move because of Mr. Rosenberg’s refusal to pay for renovations on her new house in accordance with their agreement. (N.T. May 6, 1980 at 765). At that time, Mr. Rosenberg had already paid, pursuant to the agreement, the first installment of spousal support and the initial amount agreed upon for child support pending a separate action, plus an additional $25,000 lump sum payment to which the parties had agreed. Thus, the evidence indicates that Mrs. Rosenberg had no reason to think that Mr. Rosenberg would not perform his contractual obligations. Mrs. Rosenberg understood her obligation to vacate the marital residence by December 31, 1976, yet refused to perform that obligation. Her action could reasonably have been interpreted by the lower court as an “unequivocal act ... evidencing] an intent not to fulfil” her contractual obligation. McCormick, supra.

Mr. Rosenberg finds error in the lower court’s refusal to assess damages against Mrs. Rosenberg in light of Mrs. Rosenberg’s anticipatory repudiation of the parties’ agreement. Specifically, Mr. Rosenberg avers that he is entitled to $29, 187, the total amount which he had paid to Mrs. Rosenberg before her renunciation. We find no merit in Mr. Rosenberg’s contention. Any damages resulting from Mrs. Rosenberg’s having remained in the house would accrue in favor of the Oliver Construction Corp., the corporation to which Mr. Rosenberg had deeded the marital residence after Mrs. Rosenberg surrendered her half interest. Mr. Rosenberg also alleges that he suffered personal monetary loss as well. Mr. Rosenberg’s brief, however, fails to distinguish between his losses, leaving us little to consider. After reviewing the record, however, we agree with the lower court that we are “not convinced that [Mr. Rosenberg] has proven any net damage.” (Lower Court Op. at 42).

Mr. Rosenberg also challenges the lower court’s decision to reinstate the 1976 agreement. Specifically, he argues that because Mrs. Rosenberg committed an anticipatory repudiation of the agreement it cannot stand. We disagree. “This court has long recognized the power of a chancellor to shape and render a decree which accords with the equities in the case when, as here, the complaint includes a prayer for general relief.” Sack v. Feinman, 489 Pa. 152, 160, 413 A.2d 1059, 1063 (1980). Further, appellate review is usually limited to deciding whether the chancellor abused his discretion or committed an error of law, and “our scope of review of a final decree in equity is limited and will not be disturbed unless it is unsupported by the evidence or demonstrably capricious.” Id., 489 Pa. at 165, 413 A.2d at 1066. Here, the chancellor found Mrs. Rosenberg in anticipatory breach because she refused to move out of the house as agreed to in the settlement. However, in reinstating the 1976 agreement in its entirety, the lower court contemporaneously granted a mandatory injunction in Mr. Rosenberg’s favor, removing Mrs. Rosenberg from the home. The parties, therefore, each received what they had bargained for five years earlier. At the time the agreement was signed, the parties evidently came to somewhat of an equitable agreement. In reinstating that very same agreement, and placing the parties where they would have been, we cannot say that the chancellor erred as a matter of law or entered a demonstrably capricious decree. In this complex, bitter litigation, the reinstatement is a reasonable, thoughtful result.

Both parties challenge the child support award. Mr. Rosenberg claims it is too high, while Mrs. Rosenberg alleges its insufficiency. The lower court, in awarding the support, considered what it thought to be fair and appropriate, subtracted the amount Mr. Rosenberg had been paying since January 1, 1977, and determined that Mr. Rosenberg owed $79,800 in support. Child support orders are reviewed in our Court by an abuse of discretion standard. Remick v. Remick, 310 Pa.Superior Ct. 23, 30, 456 A.2d 163, 166 (1983). “In support proceedings, the trial judge who sees and hears the witnesses is in a better position than the Superior Court to decide the issue on its merits.” Commonwealth ex rel. Friedman v. Friedman, 223 Pa.Superior Ct. 66, 67, 297 A.2d 158, 159 (1972). Accordingly, we give great deference to the lower court’s determination of what is essentially a monetary judgment. Remick v. Remick, supra. The lower court first reviewed what it considered the “extremely opulent” lifestyle of the family before the divorce. It noted such luxuries as summer camp, private school, a household maid and chauffeur and, significantly, the large spousal support and clothing and personal allowances for the children contained in the parties’ agreement. The court then evaluated Mr. Rosenberg’s yearly income and taxes and thereby determined the appropriate level of support for the children for each of the years 1977 through 1981. Because the parties in an earlier consent order had agreed to a postponed support determination, and because the lower court thoughtfully considered the family’s economic status and appellant’s income and ability to pay child support, we find no abuse of discretion in the court’s determination.

Accordingly, finding no merit in the parties’ contentions, we affirm the order and decrees of the lower court.

Affirmed.

      . Further, the lower court notes that the issue of an alleged oral agreement was not raised by appellee until 1979, although litigation between the parties began in 1976.

      . The instant agreement is unlike that in Kohn v. Kohn, supra, where our Court ordered that parol evidence be admitted to explain the ambiguity of the term "alimony” in a support agreement. The Court noted that "alimony" often includes "child support.” In Kohn, two distinct interpretations of the term were possible, and the husband’s obligation to the wife depended solely on the court’s ultimate conclusion.

      . Appellee also contends that appellant breached the agreement first, in allegedly refusing to renovate her new home. Because we agree with the lower court's evidentiary ruling disallowing the parol evidence offered, and because there is no evidence that appellant refused to renovate, we find that appellant’s termination of the support payments after learning of appellee’s refusal to move, occurred only after appellee's anticipatory repudiation of the agreement.

      . See Frowen v. Blank, 493 Pa. 137, 142, 425 A.2d 412, 415 (1981) ("Where a reading of the record reasonably can be said to reflect the conclusions reached by the chancellor, a reviewing court may not substitute its judgment for that of the chancellor.”)

      . We do not find, as appellant alleges, that the lower court erred as a matter of law in reinstating the agreement. "An anticipatory breach gives the other party the right to choose whether or not the obligation as to future performance, a substantive part of the contract, shall continue to exist, or whether that part of the contract shall at once end, exactly as an offer for a contract, in its entirety may be accepted or rejected, and the action then taken determines whether or not there shall be a contract." McCormick v. Fidelity and Casualty Co., 307 Pa. 434, 161 A. 532 (1932). Here, appellant discontinued his obligation under the agreement in response to appellee’s breach, thus rendering it unenforceable. He has not, however, been harmed by its reinstatement as he has suffered no loss, and in fact, has gained what was to be his under the agreement. In addition, because we find the reinstatement within the court’s equity power and within the law, we find appellant’s distinction of Sack v. Feinman, supra, meritless.

      . In December, 1976, a consent decree was entered whereby appellant would pay appellee $1,000 per month for child support, medical expenses and tuition. The decree also stated that “an action for support would be filed promptly and that an increase, though, not any decrease, would be retroactive to December 27, 1976." (Lower Court Op. at 15). The court’s child support award, therefore, relates back to this consent decree.

      . We find no merit in appellant's contention that the lower court failed to consider that two of the children were emancipated at the time of its order. The court, in making its order, did consider the majority status of the children in appellee’s custody.