author: WIEAND, Judge:

text:
    485 A.2d 795
    COMMONWEALTH of Pennsylvania v. Vincent ROMANELLI, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Dec. 12, 1984.

      Dennis B. Stephens, Media, for appellant.
    Helen T. Kane, Assistant District Attorney, Media, for Commonwealth, appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   WIEAND, Judge:

Vincent Romanelli was tried by jury and was convicted of rape, unlawful restraint, indecent assault, involuntary deviate sexual, intercourse, simple assault and possession of instruments of crime. On direct appeal from the judgment of sentence, he contends that the trial court erred in permitting the victim’s “hypnotically-refreshed” testimony to be received by the jury. We disagree and affirm the judgment of sentence.

On the morning of June 3, 1981, at or about 11:00 o’clock, Deborah Deckman was standing on the platform of the Gladstone station in Lansdowne, Delaware County, when she observed a man walking along the railroad tracks. When the man reached the station, he came upon the platform and approached Ms. Deckman. When he was within a few feet of her, he pulled out a knife and asked her if she had ever been raped. He grabbed her by the arm, placed the knife to her neck and pulled her across the parking lot to a parked vehicle. He forced Ms. Deckman into the front seat, entered behind her, again placed the knife against her throat and ordered her to undress. When she failed to respond, he removed her clothes. He compelled her to commit fellatio and, after forcing her into the rear seat, engaged in vaginal intercourse. He then threatened her with the knife and a hammer and extracted from her a promise not to report the incident. When Ms. Deck-man was released, she got in her car, drove home and called the police.

Later the same day, she gave the Lansdowne police a detailed account of the crime and a description of her assailant. She said that she had been raped by a white male, approximately five feet, eight inches in height, with dark brown hair, dark eyebrows, very dark eyes, and an upper tooth which protruded from the right side of his mouth. She assisted a police officer in preparing a composite drawing of her attacker and later gave police a drawing which she had prepared by herself. The following day she assisted an officer of another police department in preparing another composite drawing. However, she felt that none of the drawings was entirely satisfactory. Thereafter, Sergeant Joseph Nero of the Lansdowne Police Department compiled a set of seven hundred thirty-six (736) photographs from police files by use of a “mirocode system.” From a physical description of “short, fat, ruddy complexion,” Nero entered into the system a corresponding code which produced photographs of individuals whose descriptions matched that represented by the code. Ms. Deckman identified none of the individuals depicted as her assailant, and the display was not preserved.

On June 8, 1981, Ms. Deckman went to the Delaware County Court House where she again gave a detailed account of the attack and a description of her assailant. She again stated that he was about 5' 8", had dark brown hair and a “[v]ery protruding tooth in the front[;] that’s the one thing that I won’t forget.” “I am almost positive I would” remember him if I saw him again, she remarked. Immediately thereafter, Mr. Paul Schneider, who was employed by the Major Crimes Task Force of Delaware County, placed Ms. Deckman under hypnosis and interviewed her in an effort to extract any facts which she might previously have forgotten. No additional facts of significance, either with respect to the details of the incident or the description of the rapist, were produced.

On August 8, two months later, Ms. Deckman was shown a series of eight photographs and identified appellant as the man who had raped her. On August 12, 1981, a new array of eight photographs was prepared and contained an older photograph of appellant. Ms. Deckman again identified appellant as her assailant.

Appellant moved pre-trial to suppress all of Ms. Deck-man’s testimony. At the suppression hearing, the court was shown a videotape recording of the pre-hypnotic and hypnotic interviews. The court refused to suppress Ms. Deckman’s testimony or her identification of appellant but did suppress all testimony “insofar as it relate[d] to those matters in the hypnotic interview which were not previously referred to or stated by her to have occurred in any statement or interview given by Deborah Lee Deckman prior to being hypnotized on June 8, 1981.” Ms. Deckman testified at trial as to the events of June 3, 1981 and identified appellant as her assailant. She said that her assailant didn’t have all his top teeth and had one tooth that was protruding. Appellant’s mouth, with false teeth removed, was observed by the jury.

The uses to be made of hypnotically retrieved and hypnotically-refreshed testimony have been considered in several recent decisions of the appellate courts in Pennsylvania. In Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981), the Supreme Court was asked to determine “whether hypnotically-refreshed testimony [was] admissible in a criminal trial when the witness ha[d] no present recollection of the facts prior to hypnosis.” Id., 496 Pa. at 99, 436 A.2d at 171. After exploring the scientific data and reviewing the decisions of other jurisdictions, the Court held: “While we do not want to establish a per se rule of inadmissibility at this time, we will , not permit the introduction of hypnotically-refreshed testimony until we are presented with more conclusive proof than has been offered to date of the reliability of hypnotically-retrieved memory.” Id., 496 Pa. at 111, 436 A.2d at 178.

This Court followed Nazarovitch in Commonwealth v. McCabe, 303 Pa.Super. 245, 449 A.2d 670 (1982), a murder case , wherein the chief Commonwealth witness, a sixteen-year-old girl, had seen the apparent murderers but could not identify them. During and after hypnosis, the witness was able to recall the identity of both men, one her brother and the other an acquaintance. Because the witness had had no recollection of the identity of the alleged murderers prior to hypnosis, the Superior Court affirmed the suppression of her testimony.

A different result was reached by a panel of this Court in Commonwealth v. Taylor, 294 Pa.Super. 171, 439 A.2d 805 (1982) (allocatur denied April 7, 1982). In that case the hypnotized witness had been the victim of a brutal rape and assault. Despite death-threatening injuries, she had been able to inform police that her assailants were two men whom she had just met at a neighbor’s party. She was also able to make positive identifications of her attackers from photographs prior to hypnosis. The Court said:

It is clear that the victim was able to positively identify both of her assailants prior to the hypnotic session. Therefore, with respect to the victim’s ability to identify her two assailants, the hypnotic session did not, in fact, refresh her memory and the dangers of unreliable suggestion, fantasy and confabulation are not at issue. With respect to what happened to the victim after she was raped, during the period in which she lapsed in and out of consciousness, our review of the entire trial transcript, suppression hearing transcript and transcript of the hypnotic session itself confirms that the prosecution deliberately did not attempt to utilize any testimony of the victim which conceivably surfaced for the first time as a result of the hypnotic session____ Therefore, the victim’s testimony was not rendered incompetent by the hypnotic session due to the fact that she did have prior recollection.

Id., 294 Pa.Superior Ct. at 177-178, 439 A.2d at 807.

Earlier this year the Supreme Court handed down its decision in Commonwealth v. Smoyer, 505 Pa. 83, 476 A.2d 1304 (1984), in which the defendant had been convicted of aggravated assault and homicide by vehicle arising from a high speed chase and the striking of an automobile driven by the deceased victim. Dennis Lucas, a passenger in the decedent’s car, was called as a witness by the Commonwealth. Prior to hypnosis, he had been able to recall that the defendant’s car had struck the decedent’s vehicle at least twice. As a result of a hypnotic session, conducted by a county detective, Lucas was able to recall being struck by the defendant’s car a third time, when their car had been forced into a telephone pole. Following its earlier decision in Nazarovitch, the Court held inadmissible the portion of Lucas’ testimony which had emanated from hypnotically-induced’ “recollection.” The Court went further, however, and held that “that part of Lucas’ testimony which was not hypnotically adduced” could be used upon a retrial. The Court explained:

The conscious mind when put to rest, isolated from immediate distractions and led to concentration upon a topic, may put order to information otherwise jumbled and confused. In a state induced by chemicals or concentration one may better remember things received by the senses and put them in their original sequence, however defective was their original reception.
Placidity may indeed freshen the memory, recalling events and connections that might aid in further, discovery. However, such process does not validate the impression originally received by the senses. They always remain subject to error. Neither concentration nor chemicals can supply a defect in sight or hearing. What benefits may come from hypnotism in aiding memory or discovery are different from using the product as admissible evidence.

Id., 505 Pa. at 89, 476 A.2d at 1307-1308. While approving of this Court’s decision in Taylor, the Court prescribed additional guidelines:

[WJhenever a person previously hypnotized is offered as a witness, the offering party must so advise the court, and show that the testimony to be presented was established and existed previous to any hypnotic process; that the person conducting the hypnotic session must be trained in the process and is neutral of any connection with the issue or the parties; and, the trial judge shall instruct the jury that the testimony of a witness previously hypnotized should be carefully scrutinized and received with caution.

Id., 505 Pa. at 89-90, 476 A.2d at 1308.

Appellant’s contention in this case that all of the victim’s testimony should be inadmissible because of hypnosis is clearly untenable. Such a position has been expressly rejected by the Supreme Court in Smoyer and by this Court in Taylor. The wisdom of refusing to adopt a per se rule of exclusion is well illustrated by the facts of this case. Ms. Deckman, an obviously intelligent and perceptive woman, had a clear recollection of the indignities visited upon her and of the features of her assailant. All of this was recorded prior to her being placed under hypnosis. That its reliability was not diminished by suggestivity or confabulation while under hypnosis seems clear. That it rested upon - actual observation rather than hypnotically induced fancy is also clear.

It is argued, however, that the identification of appellant by Ms. Deckman occurred only after she had been hypnotized. Chronologically this is correct. However, Deckman had evidenced a clear recollection of her assailant prior to hypnosis. She had described accurately and in considerable detail the features of her assailant and had expressed confidence in her ability to recognize him if she saw him or his likeness in the future. The same description had been repeated on several occasions. Indelibly impressed in her memory was the image of a 5' 8" white male with dark hair and eyes and a protruding tooth. Attempted composite drawings were unable to capture sufficient detail to satisfy her more accurate recollection. Although no positive identification was made prior to hypnosis, it is significant also that no misidentification was made during this time frame. The videotape of the hypnosis session disclosed that no suggestive questions had been asked and no new information regarding the appearance of the assailant had been developed. The hypnotic session neither pillared nor occluded Ms. Deckman’s recollection of her rape or of the person who attacked her.

The decision’ in Smoyer will not be applied rigidly and mechanically. It is enough to render the victim’s testimony admissible'that her recollection of the facts had been established and existed prior to any hypnotic process. The hypnotic process will not per se invalidate the competency of impressions originally received by the senses. The victim of a crime who has a vivid and precise recollection of her attacker, who has observed him for a protracted period in .broad daylight and possesses a clear, independent, mental image of her assailant’s appearance will not be rendered incompetent to testify when she finds again the man who attacked her merely because, in the interim, she subjected herself to nonsuggestive hypnosis. Smoyer does not require a contrary result. See: Simkus v. State, 296 Md. 718, 464 A.2d 1055 (1983); In re J.R.D., 342 N.W.2d 162 (Minn.App.Ct.1984); State v. Armstrong, 110 Wis.2d 555, 329 N.W.2d 386, cert. denied, 461 U.S. 946, 103 S.Ct. 2125, 77 L.Ed.2d 1304 (1983).

The Smoyer Court prescribed that when a person who has been previously hypnotized is offered as a witness, the Commonwealth must show that the person conducting the hypnotic session was trained in hypnosis and was neutral of any connection with the issue or the parties. Although the Smoyer Court did not verbalize the reason for this requirement, the Court’s opinion in Nazarovitch is enlightening. The Court there said: “ ‘[T]he hypnotized individual is not only more easily influenced but is also more highly motivated to please others, most especially the hypnotist’ ____ Consequently, the subject may intercept and internalize any suggestions about the desired answer____ [I]n most cases involving forensic hypnosis, the subject is aware that the reason for the hypnotic session is an inability on his part to remember facts. A subject’s awareness of the purpose of the hypnotic session, coupled with the hypersuggestibility which the subject experiences, amounts to a situation fraught with unreliability.” Commonwealth v. Nazarovitch, supra, 496 Pa. at 104, 436 A.2d at 174. The purpose of the requirement of neutrality and training, therefore, is to eliminate any possibility that the witness’ recollection will be influenced by an unqualified or biased hypnotist, even where it is established that the testimony to be presented was existing prior to hypnosis. We view this precaution as a prudent one. However, where the hypnotic session has been tape recorded and the expertise and impartiality of the hypnotist are thereby demonstrated, this requirement has been met. This is particularly so where, as here, it is also demonstrated that the witness’ recollection has been unchanged by hypnosis. Deckman’s memory was positive and detailed prior to hypnosis, and remained so, with little or no change, after hypnosis. Under these circumstances, the qualifications and neutrality of the hypnotist were sufficient to justify the court’s refusal to suppress the victim’s testimony.

The trial court did not instruct the jury that the testimony of Ms. Deckman “should be carefully scrutinized and received with caution.” However, counsel did not request such an instruction and did not object to the omission thereof. The points for charge which appellant did submit were submitted untimely, immediately prior to commencement of the court’s jury instructions, see: Pa.R.Crim.P. 1119(a), and consisted of abstract observations regarding the process of hypnosis having no application to the facts of the case. The trial court properly rejected them.

Next, appellant complains that, because the Lansdowne police did not preserve the mirocode display of 736 photographs from which Ms. Deckman was unable to choose a suspect it was impossible to determine whether appellant’s picture had been included. We agree that had appellant’s picture there appeared, Ms. Deckman’s failure to identify it would have been relevant in determining the credibility and weight of her identification testimony. However, the Commonwealth was under no obligation to preserve a photo display which resulted in no positive identification. It is required that such a display be preserved when an identification is made to enable the defendant “to attack the credibility of the identification witness’ testimony, or to have the entire identification testimony suppressed because of the impermissibly suggestive nature of the layout procedure.” Commonwealth v. Jackson, 227 Pa.Super. 1, 10, 323 A.2d 799, 804 (1974). Where, as here, no identification has been made, the reasons for requiring retention and/or reproduction of the array are not present. Appellant’s identification was not rendered incompetent because the array of 736 photographs could not be recreated and reviewed.

Finally, appellant argues that the trial court erred in denying the motion for change of venue which he filed on the eve of trial. In this motion he contended that he could not receive a fair trial in Delaware County because of media reporting of the trial held one week earlier in which he had been found guilty of raping a former nun. During voir dire examination of prospective jurors, however, only nine of fifty veniremen questioned had ever heard or read anything regarding appellant in relation to the instant case or any other matter. After voir dire had been completed, there was available a reservoir of thirty potential jurors, none of whom had ever heard or read anything about appellant.

Our cases make it clear that an application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. E.g., Commonwealth v. Scott, 469 Pa. 258, 266, 365 A.2d 140[, 144] (1976); Commonwealth v. Hoss, 469 Pa. 195, 199, 364 A.2d 1335[, 1337] (1976); Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282[, 287] (1976); Commonwealth v. Powell, 459 Pa. 253, [259], 328 A.2d 507[, 510] (1974); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974). “In reviewing the trial court’s decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant’s] guilt or innocence as a result of the pre-trial publicity.” Commonwealth v. Kichline, supra, 468 Pa. at 274, 361 A.2d at 287. Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Rolison, [473 Pa. 261, 374 A.2d 509, cert. denied, 434 U.S. 871, 98 S.Ct. 215, 54 L.Ed.2d 150 (1977) ]; Commonwealth v. Hoss, 469 Pa. 195, 201, 364 A.2d 1335[, 1338] (1976); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, [212,] cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). But this rule is subject to an important exception. In certain cases there “can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between publicity and actual jury prejudice,” Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had.

Commonwealth v. Romeri, 504 Pa. 124, 131-132, 470 A.2d 498, 501-502 (1983), cert. denied, — U.S. —, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984), quoting Commonwealth v. Casper, 481 Pa. 143, 150-151, 392 A.2d 287, 291 (1978).

Appellant concedes that the evidence was insufficient to show actual prejudice but contends that the pre-trial publicity was so recent and so sensational that the community must be presumed to be inherently prejudiced against him. We disagree. “[0]nce the fact of pre-trial publicity is determined, the inquiry then turns to the nature of the publicity and its effect on the community. Factors to be considered in determining the nature of the publicity include the following:

whether the pre-trial publicity was, on the one hand, factual and objective, or, on the other hand, consisted of sensational, inflammatory and ‘slanted articles demanding conviction’ ...; whether the pre-trial publicity revealed the existence of the accused’s prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers.”

Commonwealth v. Romeri, supra, 504 Pa. at 132, 470 A.2d at 502, quoting Commonwealth v. Casper, supra, 481 Pa. at 152-153, 392 A.2d at 292. Even the publication of prejudicial information does not require a change of venue unless “such publicity has been so extensive, so sustained and so pervasive that the community must be deemed to have been saturated with it.” Commonwealth v. Romeri, supra, 504 Pa. at 134, 470 A.2d at 503, quoting Commonwealth v. Casper, supra, 481 Pa. at 153, 392 A.2d at 292.

In the instant case the only information regarding the prior week’s trial had appeared in three daily editions of the Delaware County Daily Times. These editions carried factual accounts of the trial, including the testimony of the victim. On January 22, 1982, the third day’s account carried appellant’s photograph and a headline, “SUSPECT GUILTY OF ATTACK ON EX-NUN.” The only other reference to this prior conviction was contained in an 11:00 p.m. newscast by WCAU-Channel 10 television in Philadelphia on January 21, 1982. This news report had also been factual. It was as follows:

Back home, a Delaware County jury has found a Darby man guilty of the rape of an ex-nun at Sts. Peter and Paul Cemetery in Marple Township last July. Twenty-four year old Vincent Romanelli has been convicted of raping the Haverford woman when she was placing flowers on her father’s grave.

Appellant’s concern that his prior conviction was potentially available to every family in Delaware County is blunted by the fact that only nine of fifty potential jurors had ever heard of him. See: Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975) (no change of venue required where 31 of 139 prospective jurors had formed fixed opinions); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971) (no change required where 26 of 138 jurors had formed opinion). The reporting of the news media, as we have seen, was factual. It was neither extensive nor pervasive. The community had not been saturated with it. It seems clear, therefore, that the trial court did not abuse its discretion in refusing to change venue on the eve of trial.

The judgment of sentence is affirmed.

      . 18 Pa.C.S. § 3121.

      . 18 Pa.C.S. § 2902.

      . 18 Pa.C.S. § 3126.

      . 18 Pa.C.S. § 3123.

      . 18 Pa.C.S. § 2701.

      . 18 Pa.C.S. § 907.

      . It will be obvious to the reader that the trial in this case preceded the decision of the Supreme Court in Commonwealth v. Smoyer, supra.

      . At the close of the court’s instructions, appellant did not object to the court’s denial of his points for charge. As to the effect of such failure, see Commonwealth v. Russell, 326 Pa.Super. 346, 352-353, 473 A.2d 1383, 1386 (1984) and Commonwealth v. Rineer, 310 Pa.Super. 241, 249, 456 A.2d 591, 595 (1983).

      . Appellant also produced four newspaper items which had appeared in August, 1981 following his arrest. These news stories disclosed that appellant had been charged with two separate rape offenses but were otherwise factual and neither hysterical nor inflammatory. The post-arrest publicity was neither pervasive nor recent. It occurred more than five months prior to appellant’s trial and its slight effect, if any, had clearly been dissipated by the lapse of time. This, too, is illustrated by the fact that only nine of fifty prospective jurors had ever heard of appellant.


source: Caselaw Access Project

author: WIEAND, Judge: CIRILLO, Judge,

license: Public Domain

text:
    485 A.2d 802
    COMMONWEALTH of Pennsylvania v. Nathaniel CARTER, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 30, 1984.
    Filed Dec. 12, 1984.

      Douglas M. Johnson, Assistant Public Defender, Souderton, for appellant.
    Joseph A. Smyth, District Attorney, Norristown, for Commonwealth, appellee.
    Before SPAETH, President Judge, and WIEAND and CIRILLO, JJ.
   WIEAND, Judge:

Nathaniel Carter committed acts constituting violations of parole and probation. After hearing, his parole was revoked, and he was directed to serve the balance of a 23 month maximum sentence previously imposed for recklessly endangering another person. Carter’s probation was also revoked, and he was sentenced to serve a concurrent term of imprisonment of not less than nineteen months nor more than five years on a prior conviction for a firearms offense. Carter appealed. Although his appeal was filed from both orders, he has conceded the violations. His argument, therefore, is directed toward the new sentence of imprisonment imposed by the court. This sentence was imposed, he contends, without benefit of a pre-sentence investigation by a sentencing court which gave inadequate reasons for the sentence which it imposed. Because there is merit in this contention, the judgment of sentence imposed for the firearms offense will be vacated, and that matter will be remanded for resentencing.

The imposition of a sentence of imprisonment for the firearms offense was not accompanied by a statement of the court’s reasons for the sentence. Moreover, the sentence was not preceded by a pre-sentence investigation. Although defense counsel made a specific request for a pre-sentence investigation, the court denied his request. Appellant had previously been on probation and parole, the court said, and it was “not going to waste the facilities of the probation department.” This is reflected by the following:

[THE COURT]: You have been around the courts too long to ask for a drug program now. You had all the essential elements working for you in order to get yourself a drug program. You had a probation officer that you could have asked for a drug program. You have had an extensive juvenile record. You have had a thread of violence throughout your career and you could not stay out of trouble when you were given probation and parole. All of these things don’t militate any hand wringing at this point for your rehabilitation. If you want rehabilitation, you rehabilitate yourself. It is about time the public stopped supporting you throughout this community and you start supporting yourself. If you want a drug program, you get one at Graterford. The nonsense stops here. This is the second Gagnon that I have had in these files from you and there is a new charge still pending, floating around. Irresponsible behavior does not necessitate any help at this point. You are the one that is taking it. You are the one that got yourself into this thing and you are the one that continually breaks the law. The soft soap about drugs getting you into trouble does not go very far with me at this point.
MR. WALSH: Your Honor, at this time I would request a pre-sentence investigation for my client before sentencing. I hear your statements right now, Your Honor, that you don’t feel a drug program is appropriate for the defendant. However, I feel that he should, be at least evaluated to give you alternative thinking. It is true that some of these charges— •
THE COURT: I am not going to waste the facilities of the probation department. He has been on probation and parole twice. He has been readmitted. I am not wasting my time at all with any pre-sentence investigation. He has run the scheme.
MR. WALSH: First of all, Your Honor, with regard to drug programs, some of them are much tougher than even Graterford.
THE COURT: He is not going into a drug program. He has finally made the big time.
MR. WALSH: You have stated that he has an extensive juvenile record and background. I have no knowledge of that past record. I only have knowledge of his prior adult record. I feel that with a pre-sentence investigation it will help to put on the record exactly what type of prior criminal record he does have.
THE COURT: I hear you, but I don’t hear you. —Go ahead. .
MR. WALSH: Your Honor, if you are going to sentence today, first of all note on the record that I have requested the pre-sentence investigation and note my exception.

Whether to dispense with a pre-sentence investigation rests primarily upon the exercise of a sound discretion by the trial court. Pa.R.Crim.P. 1403 A(1). The reasons for dispensing with a pre-sentence report, however, must be stated on the record and must be adequate to permit appellate review. Pa.R.Crim.P. 1403 A(2). “The first responsibility of the sentencing judge [is] to be sure that he ha[s] before him sufficient information to enable him to make a determination of the circumstances of the offense and the character of the defendant.” Commonwealth v. Doyle, 275 Pa.Super. 373, 381, 418 A.2d 1336, 1340 (1979). Accord: Commonwealth v. Young, 299 Pa.Super. 488, 491, 445 A.2d 1235, 1236 (1982). The responsibility is no less urgent where the defendant comes before the court as a probation violator. A sentencing court is not excused from this responsibility merely because the court desires to relieve the probation department from an additional assignment.

Each person sentenced must receive a sentence fashioned to his or her individual needs.

The constraints placed upon the trial court in the exercise of its [sentencing] discretion are that it must not overlook pertinent facts, disregard the force of the evidence, commit an error of law, or inflict punishment exceeding that prescribed by statute. The trial court must thoroughly examine the facts and circumstances of the crime and the background and character of the defendant, and should consult a pre-sentence report if one has been prepared, especially where, as here, incarceration for one year or more is a possible disposition. Likewise, the court should consider any information in the record bearing on degree of punishment.

Commonwealth v. Franklin, 301 Pa.Super. 17, 25-26, 446 A.2d 1313, 1317 (1982), quoting Commonwealth v. Knight, 479 Pa. 209, 212-213, 387 A.2d 1297, 1299 (1978) (citations omitted).

In the instant case the court did not explain its sentence except to say that it was rejecting appellant’s request that he be placed in a drug treatment program. Although the sentencing judge spoke generally of prior juvenile and adult records, the nature of appellant’s prior record does not appear. Indeed, even appellant’s counsel asserted a lack of knowledge of any juvenile record. Under these circumstances, and despite the broad discretion vested in the sentencing court, the court’s unconfirmed assertion of familiarity with appellant’s prior record does not constitute an adequate basis for dispensing with a pre-sentence investigation and imposing a sentence of imprisonment. Otherwise, the sentence becomes entirely subjective with the sentencing judge and does not permit of appellate review.

In Commonwealth v. Weldon, 287 Pa.Super. 533, 430 A.2d 1180 (1981), this Court held that “[t]he failure of [a] court to give reasons for dispensing with a presentence report especially considered with the failure to adequately state the reasons for sentencing and a consideration of the statutory guidelines for sentencing require that ... we vacate the sentence and remand for resentencing.” Id., 287 Pa.Superior Ct. at 538, 430 A.2d at 1182. Cf. Commonwealth v. Bryner, 285 Pa.Super. 305, 309 & n. 2, 427 A.2d 236, 237-238 & n. 2 (1981); Commonwealth v. Schwartz, 267 Pa.Super. 170, 173 n. 5, 406 A.2d 573, 574 n. 5 (1979).

So, too, in this case, the sentence imposed for the firearms offense must be vacated and the case remanded for resentencing. The order revoking parole, however, was proper and can be affirmed.

It is so ordered. Jurisdiction is not retained.

CIRILLO, J., filed a dissenting opinion.

CIRILLO, Judge,

dissenting:

I respectfully dissent.

Appellant contends that the court erred in refusing to direct the preparation of a pre-sentence investigation report prior to sentencing. Further he asserts that the sentence imposed is harsh and excessive, and lacking substantiation on the record. I would find these contentions to be without merit and would affirm the judgment of sentence.

The record reveals that the trial court adequately complied with the provisions of Pa.R.Crim.P. 1403 in electing to dispense with the pre-sentence investigation and in stating its reasons for doing so. Rule 1403 provides in pertinent part:

(1) The sentencing Judge may, in his discretion order a pre-sentence investigation report in any case.
(2) The sentencing Judge shall place on the record his reasons for dispensing with the pre-sentence investigation report if the court fails to order a pre-sentence report in any of the following instances: (a) where incarceration for one year or more is a possible disposition under the applicable sentencing statute ...

It is the responsibility of the sentencing judge to have before him sufficient information to enable him to determine the character of the defendant and the nature of the offense. Commonwealth v. Doyle, 275 Pa.Super. 373, 418 A.2d 1336 (1979). The majority’s bare assertion that: “The responsibility is no less urgent where the defendant comes before the court as a probation violator. A sentencing court is not excused from the responsibility merely because the court desires to relieve the probation department from an additional assignment,” ignores what actually occurred in the case at bar.

Judge Salus was fully apprised of the circumstances attendant to the appellant’s case, after having conducted extensive colloquies in October, 1981, and in March, 1983. The judge was impressed with the failure of the appellant to abide by the terms of his probation and parole, his failure to obtain employment, his continuing use of drugs, and his initial refusal to participate in a rehabilitative drug program. Noting both that the appellant had a thorough understanding of the criminal proceedings, and that any further investigation would serve only to waste the facilities of the probation department, Judge Salus denied the appellant’s request for a pre-sentence report and sentence was imposed thereafter.

Moreover, I would also find without merit, appellant’s contention that the court failed to articulate its reasons on the record and thereby imposed a manifestly harsh and excessive sentence.

It is well settled that Pennsylvania trial judges are vested with broad sentencing discretion with which the appellate courts will not interfere absent manifest abuse. Commonwealth v. Black, 321 Pa.Super. 44, 467 A.2d 884 (1983). To facilitate meaningful appellate review and to insure that discretion has been exercised, the sentencing court must state on the record its reasons for the sentence imposed. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977). Commonwealth v. Mead, 300 Pa.Super. 510, 446 A.2d 971 (1982). The crucial function of Riggins is to preserve the legitimacy of the sentencing process. Cf. Commonwealth v. Puchalski, 310 Pa.Super. 199, 456 A.2d 569 (1983). The requirement of setting forth a statement of reasons allows us to discern the sentencing judge’s thought process. Commonwealth v. O’Brien, 282 Pa.Super. 193, 422 A.2d 894 (1980). While the court need not enumerate the factors of the Sentencing Code, 42 Pa.C.S. § 9721 et seq., there must be a sufficient statement to indicate that the court did consider them. See e.g., Commonwealth v. Wareham, 259 Pa.Super. 527, 393 A.2d 951 (1978).

Although Judge Salus did not proceed seriatim, the record amply demonstrates that he considered the specified factors of the Sentencing Code. The appellant had originally received a light term of imprisonment with a subsequent parole and a term of probation to afford him an opportunity to pursue rehabilitation. These minimal restrictions had not been effective, and accordingly, Judge Salus felt obligated to impose total confinement. The sentence imposed comports with the general principle of the Sentencing Code, “that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.”- 42 Pa.C.S. § 9721(b). In short, we know why appellant is now behind bars.

Accordingly, I would affirm the judgment of sentence.

      . The record does not disclose that a pre-sentence investigation had been made prior to the earlier sentences. These sentences had been imposed pursuant to a plea bargain and, apparently, without benefit of a pre-sentence investigation.

      . The order revoking parole did not impose a new sentence; it required appellant, rather, to serve the balance of a valid sentence previously imposed.


author: TAMILIA, Judge:

text:
    485 A.2d 806
    Kathleen A. ALBERT, Appellant, v. James DENITO.
    Superior Court of Pennsylvania.
    Submitted Aug. 17, 1984.
    Filed Dec. 12, 1984.

      Peter J. Yerderame, Langhorne, for appellant.
    David Durben, Newtown, for appellee.
    Before WICKERSHAM, BROSKY and TAMILIA, JJ.
   TAMILIA, Judge:

This is an appeal from an Order of the Court of Common Pleas of Bucks County denying appellant’s motion to add delay damages to an arbitrators’ award in a tort claims action.

Appellant argues that Pa.R.C.P. 238 relating to delay damages permits the lower court, by virtue of the modification provisions of Pa.R.C.P. 1307(d), to supplement the arbitrators’ award despite her failure to bring a request for such delay damages to the attention of the arbitrators. We disagree.

Our reasons for doing so are threefold: The lower court has correctly stated that Rule 1307(d) relates only to the correction of “obvious and unambiguous errors”, under which rubric damages for delay are not included since their addition is tantamount to a different, substantive remedy rather than a mere rectification of formal error.

As the comment to Rule 1307(d) states: “If the award is unintelligible or ambiguous or unclear or subject to alternative interpretations, an aggrieved party can only appeal.”

No formal appeal was taken as this, matter came before the Court of Common Pleas on motion. Assuming this procedure was sufficient to bring the issue under scrutiny,

[T]he Uniform Arbitration Act intends that the court may review or modify or correct the arbitrators only where:
1. ) there was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
2. ) the arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
3. ) the award is deficient in a matter of form, not affecting the merits of the controversy. 42 Pa.C.S.A. § 7315(a)(1), (2) and (3).

Greenspan v. United Services Automobile Association, 324 Pa.Super. 315, 322, 471 A.2d 856, 860 (1984).

Despite appellant’s argument that no rule requires that the issue of delay damages be raised, common sense dictates that an award cannot be made where injury is not alleged. Further, Pa.R.C.P. 1306, which requires that delay damages be separately indexed on the arbitrators’ award document, also states that “the award shall dispose of all claims for relief____” The tacit corollary is clear that a claim must be presented for compensation to be forthcoming. The obvious parallel is to Pa.R.App.P. 302(a) which requires that for consideration to be afforded an issue on appeal, it must have been raised below or it is waived.

Finally, the recent case of Greenspan v. United Services Automobile Association, supra, is dispositive. In that case, under similar factual circumstances and where delay damages had in fact been alleged in the complaint, we stated:

For this Court to find that Rule 238 affords the impetus for altering the award of the arbitrators would be tantamount to weaving new law out of whole cloth. There is no basis in fact or law for such a pronouncement by this Court, regardless of the appealability of such a notion.

Id., 324 Pa.Superior Ct. at 323, 471 A.2d at 860 (emphasis in original)

Although Greenspan applies specifically to common law, rather than statutory arbitration, we feel no compunction in adhering to this principle.

Order of the Court of Common Pleas of Bucks County is affirmed.

      . Pa.R.C.P. 238:
      Rule 238. Award of Damages for Delay in an Action for Bodily Injury, Death or Property Damage

        (a) Except as provided in subdivision (e), in an action seeking monetary relief for bodily injury, death or property damage, or any combination thereof, the court or the arbitrators appointed under the Arbitration Act of June 16, 1836, P.L. 715, as amended, 5 P.S. § 30 et seq., or the Health Care Services Malpractice Act of October 15, 1975, P.L. 390, 40 P.S. § 1301.101 et seq., shall
      (1) add to the amount of compensatory damages in the award of the arbitrators, in the verdict of a jury, or in the court's decision in a nonjury trial, damages for delay at ten (10) percent per annum, not compounded, which shall become part of the award, verdict or decision;
      (2) compute the damages for delay from the date the plaintiff filed the initial complaint in the action or from a date one year after the accrual of the cause of action, whichever is later, up to the date of the award, verdict or decision.
      (b) In arbitration under the Act of 1836, the amount of damages for delay shall not be included in determining whether the amount in controversy is within the jurisdiction of the arbitrators.
      (c) Except as provided in subdivision (e), damages for delay shall be added to the award, verdict or decision against all defendants found liable, no matter when joined in the action.
      (d) The court may, and on request of a party shall, charge the jury that if it finds for the plaintiff, it shall not award the plaintiff any damages for delay because this is a matter for the court.
      (e) If a defendant at any time prior to trial makes a written offer of settlement in a specified sum with prompt cash payment to the plaintiff, and continues that offer in effect until commencement of trial, but the offer is not accepted and the plaintiff does not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of the offer, the court or the arbitrators shall not award damages for delay for the period after the date the offer was made.

      . Pa.R.C.P. 1307(d)
      (d) Where the record and the award disclose an obvious and unambiguous error in the award in mathematics or language, the court, on application of a party within the thirty-day period allowed for appeal, may mold the. award to the same extent and with the same effect as the court may mold the verdict of a jury.


text:
    485 A.2d 809
    Abraham FISCHER and Mae Fischer, his wife, Marjorie Garfield, Irene B. Klein, Aaron Paull and Mary Paull, his wife, Alan P. West and Hallye A. West, his wife, and All Persons Similarly Situated v. Harry K. MADWAY, Sam Madway, Ralph K. Madway and Jacob Margolis, Individually & Trading as Madway Engineers and Constructors, a/k/a Green Hill in Lower Merion; Madway Engineers and Constructors, a/k/a Green Hill in Lower Merion; David Altman, Morris Ockman, Daniel J. Keating, Jr. and Herman Shore, Co-Partners Trading as Green Hill Limited Partnership; Robert S. Blank and Jeffrey C. Blank, Co-Partners Trading as CDR Green Hill and CDR Green Hill, a Limited Partnership. Appeal of Samuel SOBLE, Joseph E. Biben, William Packel, Michael Fagan, Eli A. Levy, Henrietta F. Ritt, David M. Levy, Helen M. Rosen, Ruth Karabell, Doris L. Brenner Sostman and Bess Hoffman.
    Superior Court of Pennsylvania.
    Argued May 8, 1984.
    Filed Dec. 14, 1984.

      Jack M. Bernard, Philadelphia, for appellants.
    Stanley A. Uhr, Philadelphia, for Fischer, etc., appellees.
    Richard M. Rosenbleeth, Philadelphia, for Madway, etc., appellees.
    Before WICKERSHAM, WIEAND and LIPEZ, JJ.
   WIEAND, Judge:

In this appeal from an order approving settlement of a class action, eleven objectors contend (1) that the notice of the proposed settlement contained inadequate information, and (2) that the trial court'abused its discretion by approving the proposed settlement. We find no merit in these contentions and, accordingly, affirm the order of the trial court.

Plaintiffs, representing a class consisting of present and former tenants of Green Hill, a luxury apartment complex in Lower Merion Township, Montgomery County, filed a complaint in equity challenging the validity of an “unlimited addendum” and a “limited addendum” to leases signed by tenants. These addenda were described by the trial court as follows:

Starting with lease terms commencing or being renewed on or about October 1, 1969, all Green Hill residential leases had as a part of them the so-called “unlimited addendum” under which the tenant agreed, inter alia, to pay as additional rent his proportionate share in the increases in operating, leasing, administrative, tax and insurance costs (as defined in the addendum) which were actually incurred at Green Hill during the then current year in excess of the amount for these items which was expended during a previous, designated base year. Starting in or about the summer of 1973, Green Hill discontinued the use of the so-called “unlimited addendum,” and began incorporating into new leases and lease renewals as they were made a so-called “limited addendum.” The “limited addendum” worked in essentially the same manner as the “unlimited addendum,” except that it only provided for the passing through , to the tenant the proportionate share of the increases in the costs of insurance, taxes and utilities, as defined in the addendum.

Memorandum Opinion accompanying order dated July 22, 1982, at p. 4 (per Vogel, J.). The complaint requested the court to declare the addenda void as contracts of adhesion and to order the defendants to return all monies collected pursuant thereto. Pursuant to stipulation, on August 8, 1980, the court entered an order which permitted plaintiffs’ attorney and his selected accountant to inspect and audit the - financial records of Green Hill to determine the costs which had been passed on to the tenants pursuant to the addenda. The agreed order also contained provisions safeguarding confidentiality. Plaintiffs’ attorneys and accountants, upon penalty of a heavy fine, were forbidden from disclosing, even to their clients, information obtained from Green Hill’s books.

After the class had been certified, the court was requested to approve a settlement for $142,500.00, with counsel fees and legal costs in the amount of $35,000.00. The settlement balance was to be held in escrow and distributed proportionately to members of the class. The court directed that notice of the proposed settlement be sent to all members of the class at their last known addresses. Notice was also directed to be published in the Philadelphia Inquirer and the Main Line Times at least four weeks prior to a scheduled hearing on the settlement petition. The notice included the nature of the class action, a description of the class and a synopsis of the proceeding. It also contained an outline of the proposed settlement, the date and place of the court hearing thereon, a statement that members of the class could examine all papers, a copy of the settlement agreement, and a copy of the proposed court order approving settlement in the offices of plaintiffs’ counsel. Finally, the notice explained that a member of the class could “opt-out” upon written request. The appellants contend that the notice was inadequate because it failed to include an estimate of the maximum recovéry possible in the event the action were successfully concluded. We disagree.

Notice in a class suit must present a fair recital of the subject matter and proposed terms and inform the class members of an opportunity to be heard. Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1177 (9th Cir.1977). See also: Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865, 873 (1950). It “may consist of a very general description of the proposed settlement, including a summary of the monetary or other benefits that the class would receive and an estimation of attorneys’ fees and other expenses.” Grunin v. Interna tional House of Pancakes, 513 F.2d 114, 122 (8th Cir.), cert. denied, 423 U.S. 864, 96 S.Ct. 124, 46 L.Ed.2d 93 (1975). The notice need not provide a complete source of settlement information, and class members are not expected to rely upon the notices as such. Maher v. Zapata Corp., 714 F.2d 436, 452 (5th Cir.1983); Grunin v. International House of Pancakes, supra at 122.

We hold, therefore, that a settlement notice is not rendered inadequate merely because it does not contain an estimate of the maximum damages potentially recoverable. See: In re Armored Car Antitrust Litigation, 472 F.Supp. 1357, 1379 (N.D.Ga.1979), modified on other grounds, 645 F.2d 488 (5th Cir.1981). It is enough that the notice contain facts sufficient to alert interested persons to the terms of the proposed settlement and also the means by which further inquiry can be made and objection recorded. Maher v. Zapata Corp., supra at 451. In the instant case, the objectors not only received notice of the proposed settlement but did, in fact, appear at the time of hearing to oppose the tendered settlement.

We have also considered, but have rejected, appellants’ argument that due process considerations required that-the notice contain the aggregate amount of moneys paid by tenants pursuant to the addenda. There is no merit in this argument. Moreover, in this case the settlement hearing was continued for a three week period during which the objectors could have sought additional information. During that period they did not attempt to discover or otherwise ascertain the aggregate amount paid by the tenants, nor did they ask the trial court to modify its order of confidentiality with respect to Green Hill’s records.

Appellants argue that the- court’s approval of the settlement was an abuse of discretion because the record does not disclose that the court was aware of the total amount of moneys collected from tenants by Green Hill pursuant to the several lease addenda. Although this amount was not disclosed in open court, the record discloses that it was made known to the court during a pre-hearing, in camera proceeding. During the settlement hearing, plaintiffs’ counsel addressed the court, on the record, as follows: “With regard to the amount recoverable, your Honor has been made aware of the figures in this matter. All of this has been done in camera because of the Order of the Court for confidentiality for good and valid purposes.” N.T. September 22, 1982, at p. 43. It was estimated during the public hearing that the settlement would produce for the tenants approximately ten percent of their addenda payments. Although it is better procedure to produce all evidence in open court where it will be made part of the record, it appears that the trial court in the instant case was possessed of sufficient information to permit an educated and intelligent decision on the reasonableness of the recommended settlement.

In Buchanan v. Century Federal Savings and Loan Association, 259 Pa.Super. 37, 393 A.2d 704 (1978), this Court said:

Pa.R.C.P. No. 2230(b) ... provides that “[a]n action brought on behalf of a class shall not be dismissed, discontinued, or compromised nor shall a voluntary non-suit be entered therein without the approval of the court in which the action is pending.” This rule is designed to protect absent class members “from prejudicial and binding action by their representative.” Shapiro v. Magaziner, 418 Pa. 278, 286, 210 A.2d 890, 895 (1965). Prior to approving a class settlement, a [hearing] court must conclude that it is fair and reasonable and adequately protects the members of the class. Although there is no formula for making such a determination, the criteria heretofore employed by the courts include evaluations of (1) the risks of establishing liability and damages, (2) the range of reasonableness of the settlement in light of the best possible recovery, (3) the range of reasonableness of the settlement in light of all the attendant risks of litigation, (4) the complexity, expense and likely duration of the litigation, (5) the stage of the proceedings and the amount of discovery completed, (6) the recommendations of competent counsel, and (7) the reaction of the class to the settlement. In effect the court should conclude that the settlement secures an adequate advantage for the class in return for the surrender of litigation rights. As with valuation problems in general, there will usually be a difference of opinion as to the appropriate value of a settlement. For this reason, judges should analyze a settlement in terms of a “range of reasonableness” and should generally refuse to substitute their business judgment for that of the proponents.
The question on appeal from an order approving or disapproving a class settlement is whether the [hearing] court abused its discretion in reaching its decision.

Id.. 259 Pa.Superior Ct. at 46-47, 393 A.2d at 708-709 (citation omitted) (footnotes omitted and added).

In most cases, a very significant factor to be considered in determining whether a settlement is reasonable is the risk in proving liability and/or damages. Buchanan v. Century Federal Savings and Loan Association, supra, 259 Pa.Superior Ct. at 50, 393 A.2d at 711; Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir.), cert. denied, 459 U.S. 828, 103 S.Ct. 63, 74 L.Ed.2d 65 (1982). In determining the likelihood of success, the hearing court should not attempt to resolve unsettled issues or legal principles but should attempt only to estimate the reasonable probability of success. Buchanan v. Century Federal Savings and Loan Association, supra 259 Pa.Super. at 49, 393 A.2d at 710.

Here, the trial court correctly observed that plaintiffs, as they conceded, were attempting to “break new ground” when they attempted to avoid the several addenda on grounds that they were contracts of adhesion. In the past, courts have been willing to strike down terms of leases on grounds that they are adhesive only where a tenant has been relatively powerless to bargain for more favorable terms. See, e.g., Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966) (plurality opinion); Fair v. Negley, 257 Pa.Super. 50, 390 A.2d 240 (1978). The probability of success in this case was not great. The leases were for luxury apartments. The tenants did not lack bargaining power. Many other leasehold estates were available without “additional rent” clauses applicable to escalating taxes and costs. Thus, even though the amount proposed in settlement represented only a fraction of the potential recovery, it cannot be said that the settlement was unreasonable, in light of the dim prospects for success. See: City of Detroit v. Grinnell Corp., 495 F.2d 448, 455 & n. 2 (2d Cir.1974) (any fraction of potential recovery may, in a given case, constitute a reasonable settlement); In re Armored Car Antitrust Litigation, supra at 1373 (same).

It is relevant also that only fourteen of a class of approximately 1000 members chose to object to the proposed settlement while almost 800 opted to accept and participate. Even more importantly, plaintiffs’ counsel, who had litigated the action for seven years, urged strongly that the settlement was fair, adequate and reasonable and recommended approval. The opinion of experienced counsel is entitled to considerable weight. Buchanan v. Century Federal Savings and Loan Association, supra 259 Pa.Super. at 56 n. 21, 393 A.2d at 714 n. 21. See also: Entin v. Barg, 412 F.Supp. 508, 515 (E.D.Pa.1976).

For all of these reasons, we conclude that the learned trial judge did not abuse his discretion in approving the proposed settlement.

Order affirmed.

      . The objectors who have appealed include Samuel Soble, Joseph E. Biben, William Packel, Michael Fagan, Eli A. Levy, Henrietta F. Ritt, David M. Levy, Helen M. Rosen, Ruth Karabell, Doris L. Brenner Sostman and Bess Hoffman. Three additional objectors have chosen not to appeal.

      . Plaintiffs were Abraham and Mae Fischer, Marjorie Garfield, Irene B. Klein, Aaron and Mary Pauli, and Allen and Hallye West.

      . The court approved a stipulation on October 29, 1975 which stated that defendants could not evict any tenant for failure to pay addenda charges. It further ordered, on February 7, 1977, that defendants keep a yearly accounting of all addendum payments made by tenants while the class action was pending.

      . Pa.R.C.P. 2230 was rescinded on June 30, 1977, effective September 1, 1977, and was replaced by Pa.R.C.P. 1714(a). Rule 2230 applies to the instant case, however, since the class action was instituted in 1975. See: Scott v. Adal Corp., 276 Pa.Super. 459, 464, 419 A.2d 548, 551 (1980).


text:
    485 A.2d 813
    M.D., v. B.D., Appellant.
    Superior Court of Pennsylvania.
    Submitted April 2, 1984.
    Filed Dec. 14, 1984.

      Mark L. Tunnell, Phoenixville, for appellant.
    Joseph J. Neizer, West Chester, for appellee.
    Before WIEAND, JOHNSON and LIPEZ, JJ.
   WIEAND, Judge:

In this appeal from an order awarding custody of a son to his father, the boy’s mother contends (1) that the trial court lacked jurisdiction to decide the custody issue and (2) that if it had jurisdiction, the court abused its discretion by separating her son from his baby sister. Finding no merit in these contentions, we affirm.

M.D. was a resident of Pennsylvania; B.D. was a resident of the State of Washington. They were married in Chester County, Pennsylvania, on January 7, 1978. After a brief stay in Washington, M.D., who was then a member of the United States Navy, was transferred to California. M.D., Jr. was born in California on November 4, 1978. Shortly thereafter, M.D. was sent overseas, and B.D. returned with her infant son to Chester County, where they resided with M.D.’s parents until July, 1979. They then returned to California where they were joined by M.D. in September, 1979. When M.D. and B.D. separated in June, 1980, M.D., Jr. lived with his paternal grandparents in Chester County, Pennsylvania. After M.D. was discharged from the Navy on August 5, 1980, he returned to his parents’ home in Pennsylvania to join his son. He and his wife then reconciled and she, too, moved to Chester County, Pennsylvania. However, on February 20, 1981, B.D. left the marital home in Chester County and, taking her son, returned to Port Orchard, Washington. Three days later, on February 23, 1981, she commenced an action for divorce in Washington. Her complaint included a prayer for custody of M.D., Jr.

M.D. filed a petition for custody in Pennsylvania on August 12, 1981, and a hearing thereon was set for October 27, 1981. On that day, B.D. failed to appear, and custody of the parties’ son was awarded to his father. Armed with the Pennsylvania court’s order awarding custody to him, M.D. went to his wife’s home in Washington, removed his son, and returned with his son to Pennsylvania. On December 11, 1981, a Washington court awarded custody of M.D., Jr. to B.D.

B.D. then filed a petition to reopen the decree entered by the Court of Common Pleas of Chester County, alleging that that court had lacked jurisdiction to decide the custody issue and that she had not received notice of the prior hearing. The Chester County court determined that Pennsylvania, not Washington, had jurisdiction by virtue of the Uniform Child Custody Jurisdiction Act which had been adopted in both states. However, the court awarded a new hearing on the issue of custody. After a full hearing, the court’s prior order was affirmed on October 21, 1982. B.D. appealed.

Conflicting orders entered by the courts of sister states are one of the evils which the Uniform Act was intended to prevent. The Act’s primary purpose was “to deter abductions, unilateral removal, and improper retention of children by one of the parents in order to thwart a custody award' or to gain an upper hand in the custody fight. The legislature also attempted to promote cooperation and facilitate the enforcement of foreign custody decrees by avoiding jurisdictional conflicts with courts of other states and relitigation of foreign custody awards. “Finally, [the] Act sought to assure that custody disputes would be heard in the state with which the child and his family have the closest connection.” Tettis v. Boyum, 317 Pa.Super. 8, 13, 463 A.2d 1056, 1058 (1983); Uniform Child Custody Jurisdiction Act, 9 U.L.A. 114 Commissioners Prefatory Note (1979). Although we decry the impasse which has occurred in this case, it is clear that the courts of Pennsylvania and not the courts of Washington have jurisdiction to hear this custody dispute.

The child who is the subject of this dispute was a resident of Pennsylvania. Except for the period during which his father, the appellee, had been stationed in California, he always lived in Pennsylvania. Until his mother, the appellant, removed him unceremoniously from his home in Chester County, M.D., Jr. had never lived in the State of Washington. The actions brought by appellant and appellee in Washington and Pennsylvania respectively were both commenced within six months of M.D., Jr.’s removal from his Chester County home. Clearly, therefore, Pennsylvania was the “home state.” See: 42 Pa.C.S. § 5343. As such, the Pennsylvania courts had jurisdiction to decide the issue of the child’s custody. 42 Pa.C.S. § 5344(a)(1).

It is equally clear that the court in Washington could not exercise jurisdiction consistently with the provisions of the Uniform Act. After M.D., Jr.’s removal from Pennsylvania by his mother, he lived in Washington for only three days before an action was there commenced to decide the issue of his custody. It is readily apparent, therefore, that the boy had no significant connection with the State of Washington. Pennsylvania had been his home, even when his parents had been separated, and it was in Pennsylvania, not Washington, where the evidence was available concerning his care, protection and personal relationships. Except for his mother, who took him to Washington three days before comniencing an action in that State, the child had had no contact whatsoever with Washington. Under these circumstances, it was clearly violative of the Uniform Act for a court in Washington to assume jurisdiction to decide the custody dispute between these parties. Its order, therefore, will not be recognized in Pennsylvania. Adriance v. Adriance, 329 Pa.Super. 168, 478 A.2d 16 (1984). Jurisdiction, instead, is vested in the courts of Pennsylvania. The lower court did not err by proceeding to hear and determine the custody issue. See: Commonwealth ex rel. Octaviano v. Dombrowski, 290 Pa.Super. 322, 434 A.2d 774 (1981); In re Matter of D.L.S., 278 Pa.Super. 446, 420 A.2d 625 (1980).

Appellant contends that the court in Pennsylvania erred because it failed to place adequate weight on the fact that she had given birth to a baby girl on October 19, 1981, a period of eight months after she had left Pennsylvania. She testified that M.D., Jr. prior to his return to Pennsylvania, had been involved in making preparations for receiving this new member of the family and had helped to rock and feed the baby following the child’s birth. However, the controlling factor in determining M.D., Jr.’s custody was the manner in which his best interests would be served. See: Hartman v. Hartman, 328 Pa.Super. 154, 157, 476 A.2d 938, 939 (1984); Herron v. Seizak, 321 Pa.Super. 466, 468, 468 A.2d 803, 804 (1983). Although the general rule is that siblings should not be separated in the absence of compelling reasons, this policy is but one factor to be considered, together with others, in determining the manner in which a child’s best interests will be served. Snellgrose Adoption Case, 432 Pa. 158, 167 n. 4, 247 A.2d 596, 601 n. 4 (1968); Tobias v. Tobias, 248 Pa.Super. 168, 174, 374 A.2d 1372, 1375 (1977). M.D., Jr. had only known his baby sister for a month and a half after her birth. He had lived with his father, separate and apart from his sister, for almost two years immediately prior to the final custody determination. Dr. Theron Male, a psychologist, had examined each parent separately and each parent with M.D., Jr. He testified that the boy was a happy and healthy child who was comfortable with either parent. He testified that a change in custody would be distressing, but, that M.D:, Jr. should be able to adapt. He recommended, however, that because M.D., Jr. was being adequately provided for and was developing normally in a stable environment, the trauma of a custodial change should be avoided. The trial court found this opinion credible and held that there was no reason to uproot M.D., Jr. from a family relationship known to be healthy, happy and stable for one that was uncertain. This was a justifiable reason for maintaining custody with appellee. See: In re Custody of Pearce, 310 Pa.Super. 254, 261, 456 A.2d 597, 601 (1983); In re Custody of Temos, 304 Pa.Super. 82, 117-118, 450 A.2d 111, 129 (1982); Jon M.W. v. Brenda K., 279 Pa.Super. 50, 56, 420 A.2d 738, 741 (1980). Having reviewed all the circumstances of this case, we find no abuse of discretion in the trial court’s order. See: Commonwealth ex rel. Robinson v. Robinson, 505 Pa. 226, 478 A.2d 800 (1984). The fact that the court failed to discuss specifically the existence of a general policy in favor of raising siblings together was not alone reversible error. We will not remand merely to give the hearing court an opportunity to discuss such a policy. To do so would serve only to prolong further this much delayed litigation.

The order is affirmed.

      . In Pennsylvania, the Uniform Act appears at 42 Pa.C.S. § 5341 et seq.

      . The record discloses that the court in Chester County was informed on October 27, 1981 that a custody issue was pending in the State of Washington. The procedure which should have been followed, is set forth at 42 Pa.C.S. § 5347(c). It is there provided:
      (c) Stay; communication with other court. — If the court is informed during the course of the proceeding that a proceeding concerning the custody of the child was pending in another state before the court assumed jurisdiction it shall stay the proceeding and communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum and that information be exchanged in accordance with sections 5360 (relating to hearings and studies in another state; orders to appear) through 5363 (relating to request for court records of another state). If a court of this Commonwealth has made a custody decree before being informed of a pending proceeding in a court of another state it shall immediately inform that court of the fact. If the court is informed that a proceeding was commenced in another state after it assumed jurisdiction it shall likewise inform the other court to the end that the issues may be litigated in the more appropriate forum.


author: OLSZEWSKI, Judge:

text:
    485 A.2d 817
    Thomasine NORRIS, Administratrix of the Estate of William Thomas Norris, Deceased, and Thomasine Norris, in her own right, Appellant, v. Eugene Francis WOOD, Pennsylvania Assigned Claims Plan, EWO, Inc., d/b/a “Talk of the Town” Bar, Kazimier Onichimowski, Edward Onichimowski and Michael C. Iovine.
    Superior Court of Pennsylvania.
    Argued Aug. 23, 1984.
    Filed Dec. 14, 1984.

      George J. O’Neill, Philadelphia, for appellant.
    Charles L. Pelletreau, Philadelphia, for Wood, appellee.
    Michael Saltzburg, Philadelphia, for Pa. Assigned, appellee.
    Boris Shapiro, Philadelphia, for EWO, appellees.
    Before CIRILLO, OLSZEWSKI and BECK, JJ.
   OLSZEWSKI, Judge:

William Norris was fatally injured when the uninsured car he was driving was struck by a car driven by Eugene Wood in Philadelphia. His daughter, Thomasine, filed a claim with the Pennsylvania Assigned Claims Plan for work loss benefits and funeral expenses, on behalf of Mr. Norris’ estate, and for survivor’s benefits, on her own behalf. The Plan paid the estate $16,500 and Thomasine $5,000.

Thomasine then brought suit for uninsured motorist benefits against the Plan. In the same action, she claimed damages from Eugene Wood for negligence, and from “Talk of the Town” Bar for negligence. The Plan counterclaimed, alleging that since Thomasine was the owner of an uninsured vehicle, and the Plan had paid out money in connection with an accident involving that vehicle, the Plan was entitled under 40 P.S. § 1009.501 to recover the money paid from the uninsured vehicle’s owner. The court ordered partial summary judgment for the Plan on its claim; appellant Thomasine Norris appeals the lower court’s order.

Appellant contends that the order below, granting appellee partial summary judgment, is based on a constitutionally defective statute and should be reversed. Appellee contends that this Court cannot hear the arguments offered by appellant regarding the constitutionality of the No-Fault Act because appellant has waived them. Appellee points to Pa.R.Civ.P. 1032 and asserts that because no argument was advanced by appellant “in the pleadings,” her argument is barred.

We note that-the statute requires that an issue be raised “by preliminary objection, answer or reply”’ Pa.R. Civ.P. 1032. This is not the same as “in the pleadings.” Since appellant first raised the constitutional issue in her answer to appellee’s motion for partial summary judgment, see appellant’s Brief at 36a, it was raised properly and appellant has preserved her issue.

Appellant argues that 40 P.S. § 1009.501, (Purdon’s 1984-85 Supp.) is unconstitutional because “it automatically and arbitrarily imposes [these] severe penalties and liabilities without fault upon an impoverished person simply because of her poverty.” Appellant’s Brief at 11. The statute provides that:

The obligor obligated to pay basis loss benefits for accidental bodily injury to a person occupying a motor vehicle, the owner of which is uninsured pursuant to this act or to the spouse or relative resident in the household of the owner or registrant of such motor vehicle, shall be entitled to recover all benefits paid and appropriate loss or adjustments costs incurred from the owner or registrant of such motor vehicle or from his estate. The failure of the person to make payment within thirty days shall be grounds for suspension or revocation of this motor vehicle registration and operator’s license.

Appellant contends that because the statute requires her to pay the damages caused by the accident, and because she is subject to loss of registration of her vehicle and suspension of her license and is subject to prosecution (under 40 P.S. § 1009.601) if she fails to pay, the pay-back provision violates her right to equal protection under the law.

The gist of appellant’s argument appears to be that the State treats poor and rich persons unequally in the area of motor vehicle operation. She argues that the State cannot mandate, through penalties for non-compliance, that drivers compensate others for injuries incurred in accidents. Her arguments merit careful discussion.

In reviewing Equal Protection claims, we must first define the classes created by the legislation. Commonwealth v. Webster, 462 Pa. 125, 337 A.2d 914, cert. denied 423 U.S. 898, 96 S.Ct. 201, 46 L.Ed.2d 131 (1975). When a class is “suspect,” the statute mandating different treatment must be scrutinized strictly for an impermissible legislative purpose. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The same level of scrutiny is required when the interest involved is fundamental. Id. at 313, 96 S.Ct. at 2566. When no suspect class-or fundamental right is involved, the statute must meet a rational basis test. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

The statute here divides car owners into three classes: insured, underinsured and uninsured. When an insured owner is in an accident, presumably his insurer will pay any judgments rendered against him. When an underinsured owner is in an accident, the State may suspend his operating privileges if the judgment is not satisfied by his insurer. 75 Pa.C.S. § 1742(c) (Purdon’s 1984-85 Supp.) An uninsured owner, if a judgment is rendered against him in favor of the Plan, is subject to having his license suspended, his registration revoked and criminal proceedings initiated against him.

Thus, members of one class, uninsured owners, are subject to penalties in the event of an accident in which the Plan pays benefits and obtains a judgment against the owner. Members of the second class, underinsured, are subject to lesser penalties in the event of an accident in which a judgment in excess of coverage is rendered. Members of the third class, insured owners, are not mentioned in the statute and are subject to no penalties.

If we are to subject this classification scheme to strict scrutiny, we must hold that uninsured owners are a suspect class, or the interest involved is fundamental. Appellant argues that all uninsured persons are poor, and that poor persons are a suspect class. We cannot accept her contention. First, we have nothing in the record from which to conclude that “uninsured” is coincidental with “poor.” Appellant submitted nothing more than argument in favor of this proposition, devoid of facts, statistics or case studies. Second, under current constitutional doctrine, poverty is not a suspect classification. Suspect classifications are those based on alienage, nationality or race. Adler v. Montefiore Hospital Ass’n. of Western Pennsylvania, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied 414 U.S. 1131, 94 S.Ct. 870, 38 L.Ed.2d 755 (1974).

Appellant also argues that driving a motor vehicle is a fundamental right, requiring strict scrutiny of any law unduly burdening that right. Massachusetts Board of Retirement v. Murgia, supra. We cannot agree. Although possession of a driver’s license is an important interest, see Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971), it does not rise to the level of a fundamental right. See Commonwealth Department of Transportation v. Slater, 75 Pa.Cmwlth. 310, 462 A.2d 870 (1983) (holding that operator’s permit for bus not fundamental right).

When no suspect class or fundamental right exists, the statute must be examined to find whether a reasonable relation exists between its classification and the legislative goal. Commonwealth v. Staub, 461 Pa. 486, 337 A.2d 258 (1975). Here, the object of barring driver’s licenses to those who do not pay judgments is to prevent future occurrences of uncompensated injury from burdening the Plan. The classification of owners into insured, underinsured and uninsured accomplishes this goal. The scheme prevents those who force the Plan to pay out benefits from repeating their acts.

We hold that the classification is reasonably related to the legislative goal. We affirm the holding below that no violation of equal protection exists.

Appellant additionally argues that the statute denies her access to the courts, as provided in Art. I, § 11, of the Commonwealth’s Constitution. This argument has no merit. Appellant is free to sue the uninsured motorist who struck her father, and has done so. Appellant’s arguments that the statute denies her the rights guaranteed her under Art. I, §§ 1, 2 and 26, and Art. 3, § 18, are similarly without merit. Her contentions have been addressed in Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975), and in our discussion of fundamental rights above.

We come to the conclusion that we must affirm the lower court’s order cognizant of appellant’s situation. It is regrettable that no insurance existed for her vehicle. But, as the court stated in Shultz v. Heyison, 439 F.Supp. 857 (M.D.Pa.1975):

The consequences of being indigent in our society are not pleasant. However, until and unless a different philosophy of government is adopted by the elected representatives of the people, it is not the role of the judiciary to equalize the effect on all individuals of all of life’s circumstances. The gist of many of Schultz’s arguments in this case is that he is poor and must suffer the consequences. The court is entirely sympathetic with his plight. However, it cannot in the proper discharge of its function eliminate the differences between rich and poor and all those in between. It has a duty, of course, to protect all individuals from cruel and invidious actions taken against them by reason of their station in life. But it is not the role of the judiciary, once it is convinced that there is no illegal discrimination being worked against the indigent, nonetheless to attempt to relieve them from their plight. That must be done elsewhere.

439 F.Supp. at 861.

Judgment affirmed.

CIRILLO and BECK, JJ., concurred in the result.

      . The Legislature, in enacting the Motor Vehicle Financial Responsibility Act of 1984, Act No. 1984-11, did not change this provision. Act No. 1984-11, § 1772 (February 12, 1984).

      . 40 P.S. § 1009.501, .601 (Purdon’s 1984-85’ Supp.) (repealed and reenacted in substantially the same form in the Motor Vehicle Financial Responsibility Act of 1984, Act No. 1984-11, February 12, 1984). We note that § 1785 of the Act provides for suspension only of the owner's license, and only in the event of any accident requiring an accident report.

      . For an interesting analysis of poverty as a suspect class, see Michel-man, On Protecting the Poor Through the Fourteenth Amendment, 83 Harv.L.Rev. 7 (1969). Prof. Michelman argues that the better argument is one of "minimum protection,” guaranteeing basic needs, rather than “equal protection."

      . Sex may be a suspect classification as well. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

      . We acknowledge that appellant’s costs and the judgment outstanding may result in no net reimbursement for her father’s death in her pending action. Nonetheless, she has "access” to the courts, as required by the Constitution.