text:
    682 A.2d 831
    COMMONWEALTH of Pennsylvania, Appellee, v. Earl L. ROBINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 3, 1996.
    Filed Aug. 26, 1996.

      James D. Moran, Philadelphia, for appellant.
    Peter J. Gardner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before CAVANAUGH, HUDOCK and SAYLOR, JJ.
   HUDOCK, Judge:

This is an appeal from the order of the court below denying Appellant’s petition for relief pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. section 9541 et seq. We remand with instructions.

The salient facts underlying Appellant’s conviction were succinctly summarized by the PCRA court as follows:

[D]uring the early morning hours of April 10, 1989, [the victim] was awakened by [Appellant] who was in her bedroom. [The victim] was previously acquainted with [Appellant]. However, he did not have permission to enter her home or bedroom. [Appellant] then forced [the victim] to have sexual intercourse with him. A physical struggle ensued and the victim fled the house. She called the police from a nearby service station. Following police arrival, [the victim] was taken to the hospital. Subsequent tests revealed the presence of seminal fluid in her vagina and on her [underwear].

Opinion and Order, 8/17/95, at pp. 1-2.

After a non-jury trial, the trial court found Appellant guilty of rape and burglary. Post-trial motions were denied, and Appellant was sentenced to serve a ten to twenty year term of imprisonment on the rape conviction. He was further sentenced to a five to ten year term, to be served consecutively, on the burglary charge. Thereafter, Appellant acquired new counsel and brought direct appeal to this Court, which affirmed the judgment of sentence. Commonwealth v. Robinson, 419 Pa.Super. 661, 609 A.2d 586 (1992). Appellant did not seek allocatur.

Appellant filed a pro se PCRA petition on July 24, 1992. New counsel was appointed to represent him, and an amended PCRA petition was subsequently filed. In his amended PCRA petition, Appellant contended that trial counsel was ineffective for failing to file a motion in limine to exclude testimony regarding an. alleged prior rape of the same victim by Appellant, that trial counsel was ineffective for failing to object to the introduction of such testimony at trial, and that trial counsel was ineffective for failing to request a DNA test on the victim’s clothing. The Appellant further asserted that the matter should be remanded to the trial court for DNA testing. The PCRA court denied Appellant’s petition. As a result, Appellant brought a pro se appeal to this Court. Appellant’s fourth and present counsel was appointed to represent him for purposes of the instant appeal.

In addressing the PCRA court’s denial of relief in this matter, our scope of review is “limited to determining whether the court’s findings were supported by the record and the court’s order is otherwise free of legal error. The findings of the post-conviction court will not be disturbed unless they have no support in the record.” Commonwealth v. McCord, 435 Pa.Super. 1, 8, 644 A.2d 1206, 1209 (1994), alloc. den., 543 Pa. 725, 673 A.2d 332 (1996) (quoting Commonwealth v. Granberry, 434 Pa.Super. 524, 529-31, 644 A.2d 204, 207 (1994) (citation omitted.))

Appellant has presented the following questions for our review:

Was trial counsel ineffective because he failed to file a Motion in limine or make an objection at trial to the introduction of evidence regarding a prior rape of the victim by [Appellant]?
Was trial counsel ineffective in failing to request DNA testing?
Is [Appellant] entitled to DNA testing at this time, assuming appropriate specimens and samples still exist?

Appellant’s Brief, at p. 2.

We initially address the fact that notwithstanding the questions presented to the PCRA court and posed to us above, Appellant’s current counsel has actually argued that trial counsel was not ineffective during his representation of Appellant at trial. As such, Appellant’s counsel limits this appeal to the contention that the matter should be remanded to the trial court for a determination as to the existence of evidence available for DNA testing.

In asserting the argument that trial counsel was not ineffective due to his failure to exclude evidence of the alleged prior rape, Appellant’s current counsel states that, “[i]n accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel has made an independent review of the entire record and he concludes that this issue is without merit and that it is, in fact, frivolous.” Appellant’s Brief, at p. 5. Although we appreciate the candor of Appellant’s counsel in assessing the merits of the ineffective trial counsel claims, we note that reference to Anders is incorrect both because current counsel is not requesting permission to withdraw from his representation of Appellant and because Anders provides the procedures to follow when counsel seeks to withdraw on direct appeal. Nevertheless, we agree that the ineffectiveness claims of trial counsel lack merit.

In order to demonstrate ineffective assistance of counsel, an appellant must show: “1) that the underlying claim is of arguable merit; 2) that counsel’s performance was unreasonable; and 3) that counsel’s ineffectiveness prejudiced defendant.” Commonwealth v. Peterkin, 538 Pa. 455, 460, 649 A.2d 121, 123 (1994), cert, den., — U.S. —, 115 S.Ct. 2569, 132 L.Ed.2d 821 (1995), (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987)). Further, under the PCRA, a petitioner alleging ineffective assistance of counsel must “plead and prove by a preponderance of the evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so' undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” Commonwealth v. Granberry, 434 Pa.Super. 524, 530, 644 A.2d 204, 207 (citing Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989); 42 Pa.C.S.A. § 9543(a)(2)(ii)).

In the instant case, ineffective assistance of trial counsel claims could have been brought on direct appeal by Appellant’s second counsel. It is true that an ineffective assistance of counsel claim will not be deemed waived where an appellant has a constitutional right to counsel. Peterkin, 649 A.2d at 125. Moreover, an accused has a constitutional right to counsel on direct appeal. Id. (citing Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989); Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). Nevertheless, a claim of ineffectiveness must be raised at the first opportunity in which the challenged counsel is no longer representing the appellant. Granberry, 644 A.2d at 207. In his PCRA petition and amendment thereto, Appellant has not alleged ineffectiveness of appellate counsel for failing to raise the ineffectiveness of trial counsel on direct appeal. Further, any ineffectiveness of trial counsel claims asserted in Appellant’s PCRA petition and not argued on appeal are to be deemed abandoned by this Court. See Commonwealth v. Bennett, 512 Pa. 525, 530 n. 4, 517 A.2d 1248, 1250 n. 4 (1986). As such, we find that the ineffectiveness claims as to trial counsel have been waived.

Even absent waiver, however, we find that the ineffectiveness claims lack merit. The first two ineffectiveness claims surround the failure of trial counsel to object, either before or during the trial, to the admission of the victim’s testimony regarding an earlier alleged rape by the Appellant. At trial, the victim testified that Appellant had previously raped her approximately three months before the April 10, 1989, attack. N.T., 5/22/90, at pp. 30-35, 37-50. After the first attack, the victim called the police but decided to handle matters herself and took an ax to Appellant’s workplace. She did not go through with an ax attack. N.T., 5/22/90, at pp. 33-35). Apparently, charges against both parties were dropped. Evidence of the alleged prior rape was introduced by the Commonwealth at trial. The PCRA court found such evidence to have been relevant and admissible. We agree.

It is axiomatic that evidence of prior bad acts may not be introduced to prove that a criminal has a propensity to commit other bad acts. However, evidence of other crimes may be introduced to show: “(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design ...; or (5) to establish the identity of the person charged----” Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). Further, as the trial court noted, “[p]rior crimes may also be introduced at trial to show a Defendant’s motive, malice, or ill-will toward the victim.” (citing Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979) (allowing evidence of prior arrest to show defendant’s ill-will toward a homicide victim)). Opinion and Order, 8/17/95, at p. 6. In the instant case, the earlier act was another alleged rape involving the same parties, at the same location, within three months of each other. The victim went after Appellant with an ax after the first alleged attack. Such evidence was admissible at trial to show ill-will or malice between the parties and to show possible motive on the part of Appellant. We also agree with the PCRA court and Appellant’s own counsel that trial counsel had a reasonable strategy behind not objecting to the inclusion of such evidence at trial. If counsel’s actions were grounded on some reasonable basis to advance his client’s interests, such assistance may be deemed constitutionally effective. Commonwealth v. Williams, 537 Pa. 1, 28-30, 640 A.2d 1251, 1265 (1994). During trial, Appellant’s counsel attempted to impeach the victim’s credibility by questioning her account of both the alleged January rape as well as the April rape. The record indicates that trial counsel questioned both similarities and inconsistencies between the victim’s accounts of the attacks and highlighted her psychiatric history. As the PCRA court stated, “[i]n view of [the victim’s] uncontested earlier attempt to assault [Appellant] with an ax, trial counsel’s aim, to persuade the factfinder that the complainant’s account of the January rape was incredible, was a reasonable strategy to pursue in undermining this witness’ credibility.” Opinion and Order, 8/17/95, at p. 6.

Next, Appellant argued that his trial counsel was ineffective for failing to request a DNA test during trial. The instant trial took place in May of 1990. This Court approved the use of post-conviction DNA testing in Commonwealth v. Brison, 421 Pa.Super. 442, 618 A.2d 420 (1992). Counsel’s representation is to be appraised in terms of the standards in effect at the time his or her stewardship is in question. Commonwealth v. Pizzo, 529 Pa. 155, 158-60, 602 A.2d 823, 825 (1992). Further, trial counsel may not be found ineffective for failing to predict future legal developments. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977). Brisan was decided two years after this case came to be heard. Thus, this claim of ineffectiveness is baseless.

The final question presented by Appellant is whether he is entitled to DNA testing, assuming samples subject to analysis still exist. Appellant requests that this case be remanded to the PCRA court for a hearing to determine if evidence exists that may be subjected to DNA testing. The Commonwealth initially contends that this claim is not reviewable in the instant appeal because it was not raised in Appellant’s PCRA petition. We note that in Appellant’s amended PCRA petition, he states that, “... principles of justice require that [appellantj/petitioner’s conviction be vacated and remand [sic] to the trial court for performance of DNA test [sic] on the samples taken from the victim.” See Amended PCRA Petition, at p. 14. Also, the PCRA court treated this issue as part of the ineffectiveness claim regarding DNA testing. For these reasons, we do not find that this issue was waived.

On this issue, Appellant concedes that prior PCRA counsel failed to prove or even allege facts indicating that the relevant clothing or specimen samples were still in existence. However, Appellant contends that the PCRA court simply concluded that the evidence had been destroyed without conducting an investigation as to whether DNA evidence was still available. A brief examination of the recent case law addressing DNA testing is of some use in our analysis.

In Commonwealth v. Rodgers, 413 Pa.Super. 498, 605 A.2d 1228 (1992), alloc. den., 532 Pa. 655, 615 A.2d 1311, this Court examined the admissibility of evidence gained from DNA analysis. We found that such evidence was generally accepted in the field as “scientifically valid” and, therefore, admissible as evidence in Pennsylvania. Id., 605 A.2d at 1235. Additionally, this Court has discussed the use of DNA evidence in post-conviction matter in Brison, supra, and in Commonwealth v. Reese, 444 Pa.Super. 38, 663 A.2d 206 (1995). In Brison, the appellant was convicted of various offenses including rape and aggravated assault. The victim was brutally raped after midnight in a patch of briar bushes outside an apartment complex. After reporting the incident to the authorities, the victim went out on patrol in order to identify her attacker. Eventually, the appellant was identified as the attacker and was subsequently convicted in a jury trial of the rape and connected offenses. Id., 618 A.2d at 420-21. In addition to challenges to the weight and sufficiency of the evidence, this Court was presented with the contention that appellant was denied due process because, although requested, both the trial court and Commonwealth failed to have DNA testing performed on available samples. Id. at 423. After examining the guidance of several sister states and generally affirming the use of DNA testing in post-conviction proceedings, we determined that DNA tests should have been conducted in Brison due to the fact that the Commonwealth’s evidence was largely based on the victim’s identification, which could have been hindered due to her injury and the weather conditions. Further, there was a lack of conclusive physical evidence and the victim was unable to describe any facial characteristics of her attacker in her description to police. Id., 618 A.2d at 425. This Court specifically stated that, “[ujnder these circumstances, principles of justice require us to vacate appellant’s conviction and remand to the trial court for the performance of DNA analysis on the samples taken from the victim.” Id. (footnote omitted).

In Commonwealth v. Reese, supra, this Court affirmed the granting of a new trial to appellee after the post-conviction court received exculpatory DNA evidence. In 1982, the appellee was convicted of rape, kidnapping, and other related charges. At trial, the victim identified the appellee as her assailant. Physical evidence indicating the presence of semen was presented at trial, although no DNA or similar test was performed due to the unavailability of such tests during the time period in question. In his PCRA petition, appellee claimed ineffective assistance of counsel and requested DNA testing. The PCRA court granted the request for testing based on the fact that DNA testing was viable after-acquired evidence, that it was not available at the trial, and that it had the potential to be exculpatory. The PCRA court determined that DNA testing could be performed on any remaining evidence, at petitioner’s expense. Such DNA testing revealed that the appellee could not have deposited the seminal fluid introduced in the case. The PCRA court thereafter granted appellee’s request for a new trial. Id., 663 A.2d at 207. Before addressing whether the results of the DNA test permitted the PCRA court to award a new trial, this Court was faced with the question of whether the PCRA court erred in ordering the DNA testing. Id. at 207. Relying on Brison, we found that the “same principles of justice” existed to warrant the testing. Specifically, the Reese Court pointed to the fact that the identification of the appellee as perpetrator was based on the testimony of the victim and was challenged at trial. Also, no physical evidence was offered to link appellee to the crimes. As such, this Court found that the PCRA court was proper in permitting the DNA testing. Id., 663 A.2d at 208.

Instantly, in support of the denial of DNA testing, the PCRA court relied on Brison for the proposition that post-conviction DNA testing is only allowed “where the relevant samples are in existence.” Opinion and Order, 8/17/95, at p. 7. The PCRA court and the Commonwealth cite to footnote 13 of Brison as providing support for this contention:

Upon receipt of the test results, the trial court must ascertain whether appellant is entitled to a new trial. See Commonwealth v. Brosnick, 530 Pa. 158, 160-62, 607 A.2d 725, 727 (1992) (discussing standard for evaluating whether after-discovered evidence warrants the award of a new trial). In deciding this question, the trial court must necessarily consider whether the test results would be admissible. See id. This determination should be performed in accordance with our decision in Commonwealth v. Rodgers, 413 Pa.Super. at 507-515, 605 A.2d at 1233-1236 (discussing the admissibility of DNA test results.) The judgment of sentence should be reinstated in the event that a new trial is not required.
Based on the record currently before us, we do not know whether the specimens taken from the victim are still available for testing. Our holding is thus contingent upon the continued existence of these materials. If the samples have not been preserved by the Commonwealth and there is no hint of bad faith in failing to preserve the evidence, the judgment of sentence must be reinstated. See, e.g., Arizona v. Youngblood, 488 U.S. [51] at 58, 109 S.Ct. [333] at 337, 102 L.Ed.2d [281] at 289 (1988) (holding that absent bad faith on the part of the police, the failure to preserve potentially useful evidence does not constitute a denial of due process of law)....

Brison, 618 A.2d at 425-26 n. 13 (citations omitted).

We agree that Brison only provides for post-conviction DNA testing where the relevant samples have been preserved. At trial, the parties stipulated that a Johnson Rape Kit was completed; that smears and swabs taken from the vaginal, vulvular and cervical area of the victim indicated the presence of sperm; and that underwear provided by the victim tested positive as to the presence of spermatozoa. N.T., 5/22/90, at pp. 92-93. We recognize that in Appellant’s amended PCRA petition, as he has admitted on appeal, there is no proof offered to indicate that such evidence still exists. Likewise, in his current request for a remand, Appellant once again has not alleged any facts indicating the existence of the relevant evidence. Further, Appellant fails to specify which evidence should be subjected to DNA testing. Additionally, we recognize that in the context of ineffective assistance of counsel, we have refused to permit an evidentiary hearing on the basis of insufficient factual allegations. Commonwealth v. Bazabe, 404 Pa.Super. 408, 414-16, 590 A.2d 1298, 1302 (1991), alloc. den., 528 Pa. 635, 598 A.2d 992.

Nevertheless, in Brison, the record was obviously also unclear as to whether the samples taken from the victim were available. See Id. In Reese, supra, we stated that “where the requests for forensic tests are made in a post-conviction proceeding, the right to discovery will be implicated ‘where a conviction rests largely on identification evidence and advanced technology could definitively establish the accused’s innocence.’ ” Reese, 663 A.2d at 208 [citing Sewell v. State, 592 N.E.2d 705, 708 (Ind.App.Dist. 3 1992) ]. In this case, the PCRA court did not reach this analysis, as it concluded that there was no evidence shown to exist.

Accordingly, we remand this matter to the PCRA court to conduct a hearing to determine whether specimens are available for DNA testing. If not, the inquiry is complete and the judgment of sentence is affirmed. If such specimens do exist, the PCRA court is to examine the merits of this case to determine whether the conviction rests largely on identification evidence and, if so, whether DNA evidence could definitely establish Appellant’s innocence. Finally, if exculpatory DNA evidence exists, a new trial is granted.

The matter is remanded for an evidentiary hearing consistent with this memorandum. Jurisdiction relinquished.

      . 18 Pa.C.S.A. §§ 3121 and 3502, respectively.

      . The amended petition was entitled "Petitioner Earl L. Robinson’s Nunc Pro Tunc Appeal Under The Post Conviction Relief Act.”

      . Also, during post-verdict argument, trial counsel brought to the trial court’s attention various similarities between the victim's account of both rapes. The court questioned whether, in the course of taking handwritten notes, it could have "missed the significance of the scenario as described in January as juxtaposed with the scenario of April 10[.]” N.T., 3/1/91, at p. 15. However, after hearing argument from both sides, the court denied Appellant’s motions.

      . Quite recently, in Commonwealth v. Godschalk, 451 Pa.Super. 425, 679 A.2d 1295 (1996), this Court affirmed an order denying an appellant’s request for DNA testing after applying this two-prong test. In Godschalk, this Court found that the appellant’s conviction rested largely on his own confession; therefore, he failed to satisfy the identification prong of the test. Id.

      . From our examination of the record, we note that the Commonwealth has represented that the relevant testing specimens have not been saved.

      . While Appellant did not testify at trial, he presented an alibi witness to establish that he was not the perpetrator.


source: Caselaw Access Project

author: DEL SOLE, Judge:

license: Public Domain

text:
    682 A.2d 838
    Margaret Ann COULTER, Appellant, v. Neil ROSENBLUM, Ph.D., Appellee.
    Superior Court of Pennsylvania.
    Submitted May 22, 1996.
    Filed Aug. 27, 1996.

      Theodore E. Breault, Pittsburgh, for appellant.
    Glenn M. Campbell, Philadelphia, for appellee.
    Before CIRILLO, DEL SOLE and OLSZEWSKI, JJ.
   DEL SOLE, Judge:

Plaintiff appeals from an order granting Defendant’s Motion for Summary Judgment. The trial court determined this matter was barred by the statute of limitations. We affirm.

Plaintiff, who was in the midst of a custody dispute with her ex-husband, initially retained Defendant’s services for a psychological evaluation of her relationship with her minor son. In response to a request from ex-husband’s counsel, Defendant sent a letter on June 9, 1988 detailing the information revealed during Plaintiffs therapy sessions. A second report was sent on July 24, 1988. Both of these correspondences were released without the consent of the Plaintiff. Plaintiff filed the instant suit on September 10,1992.

The Complaint set forth four counts. Counts one through three alleged that Defendant breached a duty of confidentiality and invaded her right to privacy. Count four alleged strict liability based on 42 Pa.C.S.A. § 5944, which forbids a licensed psychologist, like Defendant, from testifying in any civil or criminal proceeding about information gathered throughout therapy sessions, without consent of the patient. Summary judgment was granted, the trial court concluding that this action was commenced more than four years after the occurrence of the incidents complained of in the Complaint, and therefore was barred by the statute of limitations.

The only issue raised in this appeal is whether the trial court erred in granting the Motion for Summary Judgment with respect to count four. Plaintiff does not challenge the trial court’s ruling with respect to counts one through three of the Complaint, admitting that the statute of limitations bars these claims. However, she seeks a trial on the merits for allegations set forth in count four of her Complaint and contends that this claim is not barred by the statute of limitations but should be governed by a six year limitation period. In count four she alleges that Defendant is strictly liable for the disclosure of information to her ex-husband’s attorney in violation of 42 Pa.C.S.A. § 5944.

Plaintiff asserts that Dr. Rosenblum’s conduct violated 42 Pa.C.S.A. § 5944 because she never consented to the release of information to her ex-husband. She argues that 42 Pa. C.S.A. § 5944 creates a separate and distinct cause of action, other than common law theories of tort or contract. This statute provides:

Confidential communications to licensed psychologists
No person who has been licensed under the act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.

42 Pa.C.S.A. § 5944.

Plaintiff maintains that since no statute of limitations provision is specified in 42 Pa.C.S.A. § 5944, the appropriate time period is six years according to 42 Pa.C.S.A. § 5527(6), and that under that six year limitation period this action is not time-barred.

Plaintiff relies on Boettger v. Miklich, 534 Pa. 581, 633 A.2d 1146 (1993), and Gabriel v. O’Hara, 368 Pa.Super. 383, 534 A.2d 488 (1987), to buttress her argument. Boettger dealt with the Wiretap Act, 18 Pa.C.S.A. § 5725. There the court held this act created new and detailed rights and responsibilities which, if breached, would form the basis of a, heretofore, non-existing cause of action.

Gabriel dealt with the appropriate statute of limitations for an action brought under the Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201-2 et seq. In order to promote consistency among the multifarious claims of the UTPCPL, the Gabriel Court held that a uniform six year statute of limitations would apply. Gabriel v. O’Hara, 368 Pa.Super. 383, 395, 534 A.2d 488, 494 (1987); see 42 Pa.C.S.A. § 5527(6).

However, these cases are readily distinguishable from the instant action. The Wiretap Act sets forth the following specific language creating a cause of action for its breach:

(a) cause of action-Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages computed at the rate of $100 a day for each day of violation, or $1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney’s fee and other litigation costs reasonably incurred.

18 Pa.C.S.A. § 5725(a).

Likewise, the UTPCPL explicitly states in § 201-9.2., entitled “Private actions”:

(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.
(b) Any permanent injunction, judgment or order of the court made under section 4 of this act shall be prima facie evidence in an action brought under section 9.2 of this act that the defendant used or employed acts or practices declared unlawful by section 3 of this act.

73 P.S. § 201-9.2.

In contrast, 42 Pa.C.S.A. § 5944 does not expressly create a cause of action on its face. Both the Wiretap Act and the UTPCPL contain specific language which expresses the legislature’s intent to create a cause of action for violation of either statute as a remedy for their breach. Conversely, the statute in the instant case merely defines a testimonial privilege on behalf of the patient in the psychologist-patient relationship. The trial court correctly determined that 42 Pa. C.S.A. § 5944 does not create a new cause of action.

With regard to the question of the appropriate limitations period for the claim brought in count four of Plaintiffs Complaint, since we conclude that § 5944 does not create a new cause of action we agree that the six year period under 42 Pa.C.S.A. § 5527(6) is not applicable. The six year limitation period of § 5527(6) applies only to claims which are not subject to another limitation period. Despite Plaintiffs argument to the contrary. Section 5944 merely codifies a testimonial privilege which is an extension of the common law duty of confidentiality existing between the psychologist and patient. Thus, the nature of Plaintiffs claim is for invasion of privacy.

We recognize the crucial role that uninhibited speech, fostered by privilege, plays in professional relationships. Clients who are open with, and trust, their attorney enable the attorney to best represent and pursue their client’s interests. Similarly, one seeking the aid of a physician, especially in the field of psychiatry or psychology, must openly communicate their thoughts, feelings, and other personal information as it is the only way to diagnose and treat such ailments. The legislature recognizes the importance of confidential relations and communication between psychologists and their clients by providing that such relationships, being on the same level as attorney-client, should be given equal protections. 42 Pa. C.S.A. § 5944.

Several cases in our Commonwealth have discussed the importance of privilege in the psychologist-patient relationship. See Kalenevitch v. Finger, 407 Pa.Super. 431, 595 A.2d 1224 (1991) (holding that the importance of keeping the psychotherapist-patient privilege confidential warrants the privilege’s extension to protect communications made to agents of the licensed psychologist or psychiatrist); Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987) (explaining how the privilege afforded by § 5944 was intended to inspire confidence in the client and encourage full disclosure to the psychologist which serves the public interest in promoting a society in which the general well-being of the citizenry is protected); Matter of Adoption of Embick, 351 Pa.Super. 491, 506 A.2d 455 (1986) (arguing that without the psychologist-client privilege, which encourages people to seek professional help for their mental and emotional problems, many people would simply forego therapeutic treatment.) See generally B.W. Best, J.D., Annotation, Privilege, in Judicial and or Quasi-Judicial Proceedings, Arising from Relationship Between Psychiatrist or Psychologist and Patient, 44 A.L.R.3d 24 (1972).

By our decision today we do not intend to limit privilege or its objectives, rather, we merely hold that when one’s right to privacy is violated as a result of the disclosure of privileged information, the aggrieved party’s action is governed by the one year statute of limitations. 42 Pa.C.S.A. § 5523. In the instant case, if Defendant did breach a duty, it is one based on invasion of privacy which is only actionable for one year after its commission. Therefore, we find the trial court was correct in granting summary judgment since the actions of the defendant giving rise to Plaintiffs claims occurred more than one year prior to the filing of her complaint.

Affirmed. •


author: OLSZEWSKI, Judge:

text:
    682 A.2d 841
    COMMONWEALTH of Pennsylvania v. Glenn T. MARCHAND, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 22, 1996.
    Filed Aug. 30, 1996.

      Keith E. Kendall, Lewistown, for appellant.
    Richard E. Guida, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BECK, SAYLOR, and OLSZEWSKI, JJ.
   OLSZEWSKI, Judge:

During the summer of 1991, appellant Glenn T. Marchand was the ranking police officer on the two-man Lykens Borough Police Force. Officer George Keifer was the other officer on the force. The borough also utilized the services of two auxiliary police officers, John and Debra Maletich. The Maletichs were close friends with appellant.

In late July of 1991, the Maletichs obtained possession of two borough police jackets. According to Commonwealth witnesses, the jackets were given to the Maletichs by Officer Keifer at appellant’s direction and with Lykens Mayor Harry Hand’s approval.

Notwithstanding this apparent gift, on September 8, 1991, appellant issued and executed a search warrant to retrieve the two jackets. In the application for the search warrant, appellant claimed that the jackets were stolen, and that a confidential informant had told him that the jackets were about to be sold. While appellant claimed that he obtained the search warrant because he truly believed that the jackets were stolen, the Commonwealth offered evidence to show that appellant acted in retaliation for a recent sexual assault complaint filed against appellant by Mrs. Maletich.

A jury trial was held in June of 1992, and appellant was found guilty of false swearing and official oppression for swearing out a false search warrant. On appeal, however, this Court granted appellant a new trial due to the admission of improper evidence. A second jury trial was held in September of 1995. The jury again found appellant guilty of false swearing and official oppression. Following sentencing and the denial of post-sentence motions, appellant filed the instant appeal.

Appellant first claims that the evidence was insufficient to support his convictions. Specifically, appellant contends the Commonwealth failed to establish that he knowingly made false allegations in swearing out the search warrant in question. We disagree.

“When reviewing a sufficiency of the evidence claim, an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt.” Commonwealth v. Simmons, 541 Pa. 211, 223, 662 A.2d 621, 627 (1995).

Instantly, the evidence introduced at trial, viewed in the light most favorable to the Commonwealth, establishes that appellant swore out a search warrant to retrieve “stolen” jackets, even though the jackets were not, in fact, stolen. While appellant asserts that he subjectively believed that the jackets were stolen, Commonwealth witness Officer Keifer testified that the jackets were given to the Maletichs at appellant’s express direction. See N.T. at 173, 184. Officer Keifer’s testimony supports the conclusion that appellant knew that the jackets were not stolen. In light of Keifer’s testimony, we find that the evidence was sufficient to support appellant’s convictions, and we reject appellant’s first claim.

Appellant next argues that he is entitled to a new trial due to a number of evidentiary errors committed by the trial court. First, appellant asserts that the trial court erred in allowing the Commonwealth to refer to prior sexual assault charges against him as prior “uncharged serious misconduct.” Appellant’s brief at 11-12. While evidence of prior bad acts is generally not admissible at trial, an exception exists where the evidence tends to establish “motive; intent; absence of mistake or accident; a common scheme, plan or design; or the identity of the person charged with the commission of the crime.” Commonwealth v. Schwartz, 419 Pa.Super. 251, 263, 615 A.2d 350, 356 (1992), appeal denied, 535 Pa. 617, 629 A.2d 1379 (1993).

In this case, the trial court allowed the Commonwealth to refer to the prior misconduct because it tended to establish a motive for swearing out the false warrant. As the trial court noted, “the evidence that [appellant] knew the Maletichs made sexual assault allegations against [him] to the State Police suggested why [appellant] would jeopardize his job by executing a false search warrant for two meaningless jackets against the Maletichs who only a week prior were probably his best friends.” Trial court opinion, 2/21/96 at 14 (quoting Commonwealth’s brief at 8). Since we agree with the trial court that the prior allegations of misconduct tended to establish the key element of motive, we find no error in the admission of the evidence. See Schwartz, supra.

Even conceding that this prior misconduct evidence did tend to establish motive, appellant argues that it still should have been excluded because of its overwhelmingly prejudicial impact. While it is true that a court must balance the need for such evidence against the potential for prejudice, we find no overwhelming prejudice here. The trial court minimized the prejudicial impact of the prior allegations of sexual misconduct by allowing the Commonwealth to refer to the allegations only as prior serious uncharged misconduct. Given the vague nature of the reference, and the need for this important motive testimony in a case about seemingly meaningless jackets, we find no error in the trial court’s decision to allow the evidence. See Schwartz, supra.

Next, appellant asserts that the trial court erred in refusing to allow impeachment of Officer Keifer with respect to his “mental capacity, condition and memory problems, and his then pending PCRA petition in which he claimed mental incompetence.” Appellant’s brief at 13. Contrary to appellant’s assertions, he was permitted to question Keifer about any potential memory problems. See N.T. at 179-180. As for cross-examination of Keifer about his general competence to testify, and his statements in his own PCRA petition claiming incompetency during a guilty plea colloquy on November 17, 1993, appellant has simply not demonstrated, either to the trial court or to this Court, that Keifer’s competency was suspect at any period relevant to this case. In the absence of such a demonstration, appellant has no basis upon which to assert that the trial court erred with respect to cross-examination on Keifer’s competency.

Appellant also asserts that the trial court erred in refusing “to allow defense counsel to cross-examine Keifer about a 1984 resignation letter. The scope of cross-examination is within the sound discretion of the trial court. See, e.g., Commonwealth v. Brinton, 275 Pa.Super. 304, 307-09, 418 A.2d 734, 736 (1980). In exercising this discretion, a trial court may properly preclude cross-examination on collateral matters that are unrelated to the issues at trial. Id. See also Commonwealth v. Checca, 341 Pa.Super. 480, 494, 491 A.2d 1358, 1365 (1985) (“A witness’ credibility cannot be attacked on the basis of prior conduct which is unrelated to the issues at the present trial.”). An appellate court will not reverse the trial court’s exercise of discretion with respect to the scope of cross-examination in the absence of an abuse of discretion. E.g., Brinton, 275 Pa.Super. at 307-09, 418 A.2d at 736.

We find no abuse of discretion in the trial court’s decision to preclude cross-examination on the issue of Keifer’s 1984 resignation letter. While the letter may have revealed Keifer’s hostility toward his boss at the time, former Police Chief Clair Dunkleberger, it revealed absolutely nothing about Keifer’s feelings toward appellant. Appellant’s bold effort to establish the relevancy of this letter, by asserting that it proved Keifer’s hostility toward any and' all superior officers, must fail for lack of any supporting evidence. Since the letter would have introduced collateral issues that had no relevancy to the instant trial, we find no error in the trial court’s decision to preclude this evidence. See Checca, supra; Brinton, supra.

Appellant next alleges that the trial court erred in permitting Detective Richard Worley to testify as an expert on search warrants. Appellant first argues that search warrants are a matter of common knowledge, and that expert testimony on the subject is not permissible. As the trial court properly noted, however, “[h]ow police officers apply for search warrants and in what situations is it appropriate or not appropriate to be involved in a search warrant application is specialized knowledge. The average layman has limited knowledge of such matters, and what little knowledge the layman possesses is likely tainted by inaccuracies shown on television and the movies.” Trial court opinion, 2/21/96 at 17 (quoting Commonwealth’s brief at 11). Since we agree with the trial court that search warrant procedures are not a matter of common knowledge, we reject appellant’s claim with respect to the propriety of Worley’s testimony.

Alternatively, appellant argues that Worley’s testimony was inadmissible on grounds of relevancy. In response to this claim, the trial court wrote that “Detective Worley testified, among other things, about ... whether it is proper for a police officer to apply for a search warrant involving people he knows on a personal level. (N.T. 200-03). This general testimony was relevant since it supported the Commonwealth’s theory of the case ... that [appellant] was acting in retaliation against the Maletichs----” Trial court opinion, 2/21/96 at 18. We again find no abuse of discretion in the trial court’s finding of relevance, and we reject appellant’s argument for a new trial on this basis.

Appellant’s penultimate claim is that the trial court erred in permitting the jury to consider a 1991 memorandum from appellant to Mayor Hand. Appellant argues that the memorandum was irrelevant and prejudicial. We disagree.

In the 1991 memorandum, appellant relates his version of his departure from the Lykens Borough police force, and alleges that he was forced to leave because he uncovered an illegal drug ring involving, inter alia, Officer Keifer. Since the memorandum reveals the animosity between appellant and Keifer, and the extent of that animosity bears upon the credibility of both men, the memorandum met the test for relevancy. See Commonwealth v. Johnson, 536 Pa. 153, 158, 638 A.2d 940, 942 (1994). Given this relevance, and appellant’s failure to develop and support his bald allegations of prejudicial impact, we must conclude that the trial court did not err in admitting the memorandum. See, e.g., Schwartz, 419 Pa.Super. at 269, 615 A.2d at 359 (“In determining admissibility, the trial court should decide whether the evidence is relevant and, if so, whether its probative value is outweighed by its prejudicial impact.”).

Finally, appellant asserts the trial court erred in refusing to allow defense counsel to argue that the reversal of appellant’s 1991 suspension constituted a vindication of appellant’s position. We disagree. Pursuant to a court order dated September 8, 1995, appellant was allowed to present evidence of the suspension reversal. As for presenting evidence that the reversal constituted a vindication of appellant’s position, the trial court properly found that such testimony would be collateral and “would have sidetracked the trial into a debate regarding the Borough Council’s motives for reversing the suspension.” Trial court opinion, 2/21/96 at 20. We therefore find no error in the trial court’s preclusion of the evidence relating to vindication.

Since appellant has failed to establish the merits of his sufficiency and evidentiary claims, we affirm his judgment of sentence.

Affirmed.

      . Appellant’s convictions for false swearing and official oppression both essentially require a knowing violation of the law. See 18 Pa.C.S.A. § 4903 (defining false swearing, in part, as a false statement under oath when the affiant does not believe the statement to be true); 18 Pa. C.S.A. § 5301 (defining official oppression, in part, as the act of subjecting another to a search, knowing such search is illegal).

        . Appellant also claims, in the alternative, that Keifer should not have been allowed to testify at all due to his incompetence. As already discussed, however, appellant has not made any attempt to demonstrate to this Court that Keifer was incompetent at any period relevant to this case. We therefore reject any assertion that the trial court should have disqualified Keifer from testifying.


author: CIRILLO, President Judge Emeritus. BECK, Judge,

text:
    682 A.2d 845
    Effie KENIS, Vicki Soldatos and Leonidas Soldatos, v. PERINI CORPORATION and Michael David Fischer. Appeal of Margaret M. BOYCE, Esquire.
    Superior Court of Pennsylvania.
    Submitted April 29, 1996.
    Filed Sept. 18, 1996.

      Margaret M. Boyce, Philadelphia, pro se, appellant.
    Edward F. Chacker, Philadelphia, for Kenis & Soldatos, appellees.
    Jerrold P. Anders, Philadelphia, for Perini Corp. & Michael D. Fischer, appellees.
    Before CIRILLO, President Judge Emeritus, BECK, J., and CERCONE, President Judge Emeritus.
   CIRILLO, President Judge Emeritus.

Margaret M. Boyce, Esquire, appeals from an order entered by the Court of Common Pleas of Philadelphia County denying her motion for recusal and ordering her to turn over her file to new counsel, or suffer a fine. We quash the appeal.

Appellant, Margaret M. Boyce, Esquire (Boyce), was retained by plaintiffs to represent them in the underlying personal injury action. Subsequently, Boyce received a telephone call from Edward Chacker, Esquire, who requested that Boyce photocopy her client file, as the plaintiffs had discharged her and appointed him to represent them in the underlying litigation.

On August 4, 1995, the court held a hearing, on the record, where Boyce moved to have the trial judge, the Honorable Russell M. Nigro, recused from the case due to a $1,000.00 contribution that Chacker had made to Judge Nigro’s campaign for our state supreme court. Judge Nigro denied the recusal motion and ordered Boyce to allow Chacker to make a copy of her file or suffer a $l,000.00/day fine. On August 8, 1995, Boyce attempted to appeal from an order which was never reviewed or signed by the court after the August hearing. On October 5, 1995, this court quashed the appeal. On September 18, 1995, the trial court entered the order from which Boyce now appeals and raises the following issues for our review:

(1) Did the trial judge, the Honorable Russell M. Nigro, who was a candidate for the Supreme Court of Pennsylvania, err in not recusing himself from deciding the motion of Edward F. Chacker, Esquire, to strike the appearance of Margaret M. Boyce, Esquire, and ordering her to turn over a file to Mr. Chacker, when it was revealed that Edward F. Chacker, Esquire had made a $1,000.00 contribution to Judge Nigro’s judicial campaign, particularly when under the same set of circumstances in another case, Judge Nigro did recuse himself, holding that to refuse to recuse himself would help create the appearance of impropriety, as he was quoted to have said in the Philadelphia Inquirer Article of Sunday, October 15,1995?
(2) Should the trial court have held discussions (no testimony) on the matter in open court prior to indicating to the parties that he was denying Ms. Boyce’s motion for recusal?
(3) Should the trial court have ordered Attorney Boyce to have her file completely and totally copied by a copy service for the alleged purpose of allowing Mr. Chacker to look at the file to see if the $310,000.00 settlement offer was adequate without making an order regarding not only Attorney Boyce’s outstanding legal fee for her services, but also, reimbursement of her costs of $7,500.00 since by copying the file, what Ms. Boyce would, in effect, be doing would be turning over her file of five years’ legal work together with expenditures of $7,500.00 for costs, without any agreement as to payment of her fee and the reimbursement of out-of-pocket expenses?
(4) Did the trial court err in not entering an order that Margaret M. Boyce, Esquire was entitled to her contingent fee (40%) of the first $310,000.00 written offer extended, prior to ordering her to allow a copy service to copy the file for Edward F. Chacker, Esquire, so that he allegedly could review it to determine its value was in excess of the $310,000.00 offer? (It should be kept in mind that the Honorable Albert W. Sheppard, Jr. of the Philadelphia Common Pleas Court had conducted a settlement conference and already determined that this was a good settlement and imposed sanctions upon the plaintiffs under Philadelphia Local Rule 212.2 for their refusal to accept the settlement).
(5) Should the trial court have entered an order on September 18, 1995, that Margaret M. Boyce, Esquire should turn over Plaintiffs file to Edward F. Chacker, Esquire, by Monday, August 7, 1995, (Impossibility of performance is obvious) or be fined $1,000.00 per day? The August 4,1995 order entered in court imposes a fine of $1,000.00 and does not mention it as being imposed per day. Thus, the written order contradicts the order as entered in court, which is, in effect, the imposition of a fine for contempt without a contempt hearing being held.
(6) Can the court impose a fine on an attorney without providing the attorney the opportunity to be heard at a hearing and present evidence on his/her own behalf to satisfy the requirement of due process?
(7) Can the trial court enter an order depriving an attorney of her property rights to file (compiled with no assistance from plaintiffs) without providing a hearing at which testimony is offered and without providing for payment or costs and/or attorney’s fees?

Before addressing Boyce’s substantive issues on appeal, we must first determine whether the order from which this appeal is taken is properly before us. An appeal may be taken only from a final order which disposes of all claims or of all parties. Pa.R.A.P. 341. The Rules of Appellate Procedure consider orders to be “final and appealable” when the order either disposes of all claims, of all parties, or when the court enters the order upon determining that an immediate appeal would facilitate resolution of the entire case. See Pa.R.A.P. 341(b)(1), (b)(3), (c). According to these dictates, the immediate order is not final; the parties to the suit as well as the underlying personal injury claims are still actively pending. In addition, the trial court did not state in the order that an immediate appeal would facilitate resolution of this entire case.

The instant order compels Ms. Boyce to copy her file and provide such to Mr. Chacker. In the event that she does not comply with this directive, the court has the power to impose upon her a $1,000.00 per day sanction. Our court has held that an adjudication of contempt without the imposition of sanctions is interlocutory. See DeMasi v. DeMasi 408 Pa.Super. 414, 597 A.2d 101 (1991), allocatur denied, 535 Pa. 619, 629 A.2d 1380 (1993) (finding of contempt which did not execute on sanctions which were imposed but were to take place in the future was not appealable); Sonder v. Sonder, 378 Pa.Super. 474, 482 n. 1, 549 A.2d 155, 159 n. 1 (1988) (en banc) (a contempt order is interlocutory and unappealable until sanctions are imposed). Additionally, an order which neither makes a present finding of contempt nor imposes sanctions is interlocutory and not appealable. See Genovese v. Genovese, 379 Pa.Super. 623, 550 A.2d 1021 (1988).

Presently, the September 18, 1995 order neither holds Boyce in contempt, nor does it impose a fine upon her. Rather, the order merely states the potential for the imposition of sanctions if appellant were to fail to comply with its directives. Because the trial court order neither makes a finding of contempt nor imposes sanctions, we find it is not presently appealable. Genovese, supra; Sonder, supra.

The remainder of the September 18, 1995 order denies Judge Nigro’s recusal from the August 4, 1995 hearing. Our court has reaffirmed the fact that orders denying a pre-trial motion to recuse a judge from a case are interlocutory. See Hahalyak v. Integra Fin. Corp., 451 Pa.Super. 171, 678 A.2d 819 (1996) (appeal from order refusing recusal of motions judge quashed; order was neither final nor an interlocutory or collateral order that was immediately appealable); Commonwealth v. Hall, 327 Pa.Super. 390, 476 A.2d 7 (1984) (appeal from order denying defendant’s pro se pre-trial motion to recuse trial judge was improperly filed due to motion’s interlocutory and unappealable nature).

Finally, we recognize that our court will consider certain non-final, interlocutory appeals appealable as of right pursuant to the “collateral order doctrine.” Pennsylvania Rule of Appellate Procedure 313 states:

A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Boyce claims that the trial court improperly ordered her to allow Chacker to photocopy her client file. She asserts that she has been deprived of a fundamental property right and that the court should have entered an order ensuring that she would be paid any costs and fees due her from her years of representing plaintiffs. We disagree.

We first note that under Pennsylvania law, a client has the absolute right to terminate the attorney-client relationship regardless of any contractual arrangement between the two parties. Hiscott and Robinson v. King, 426 Pa.Super. 338, 626 A.2d 1235 (1993), allocatur denied, 537 Pa. 641, 644 A.2d 163 (1994). A dismissed attorney may have a valid quantum meruit action against the client. Fowkes v. Shoemaker, 443 Pa.Super. 343, 661 A.2d 877 (1995) (citing Styer v. Hugo, 422 Pa.Super. 262, 619 A.2d 347 (1993), affirmed, 535 Pa. 610, 637 A.2d 276 (1994)); Dorsett v. Hughes, 353 Pa.Super. 129, 509 A.2d 369 (1986) (same). Quantum meruit actions against a former client accrue as of the date of the attorney’s termination of representation. Id. The statute of limitations for a quantum meruit action is four years. Id.; 42 Pa.C.S.A. § 5525(4).

Pennsylvania Rule of Civil Procedure 1012 states, in part:

(b) An attorney’s appearance for a party may not be withdrawn without leave of court unless another attorney has entered or simultaneously enters an appearance for the party and the change of attorneys does not delay any stage of the litigation.

Additionally, Rule 1.16 of the Rules of Professional Conduct states, in part:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where the representation has commenced, shall withdraw from the representation of a client if:
(3) the lawyer is discharged.

The trial court docket, in the present case, reveals that on April 18, 1995, the prothonotary entered the appearance of Edward F. Chacker, Esquire, on behalf of the plaintiffs. The reproduced record evidences two letters, addressed to Ms. Boyce from Mr. Chacker, stating that the plaintiffs had sent Boyce a letter terminating her services. Unfortunately, we are without any other documentation in the original record certifying that Boyce has withdrawn from the case. Despite this lack of information, the facts of this case, in conjunction with the above-cited rules, compel us to conclude that the plaintiffs have effectively terminated Boyce’s representation. Consequently, we find that appellant has a cause of action against plaintiffs to recover any fees which she is rightfully due from her many years of work on the present case. Fowkes, supra.

Boyce’s claim against plaintiffs accrued as of the date of her termination — April 18, 1995. She has four years from April 18, 1995, or, until April 18, 1999, within which to bring her action against plaintiffs. 42 Pa.C.S.A. § 5525(4). As such, we cannot classify this appeal as one which fits within the confines of the collateral order doctrine. The present appeal does not involve a question which, if review is postponed until final judgement in the case, will be irreparably lost; appellant’s quantum meruit claim will remain viable for virtually three more years. Pa.R.A.P. 313(b). See generally DiLucido v. Terminix Int’l, Inc., 450 Pa.Super. 393, 676 A.2d 1237 (1996) (case conducting a collateral order doctrine analysis based upon Pa.R.A.P. 313 since the 1992 amendments to the Rules of Appellate Procedure).

Finding that the present order is interlocutory and unappealable and not a collateral order, we need not address Boyce’s substantive issues. We, therefore, quash the appeal.

Appeal quashed.

BECK, J., files a dissenting statement.

BECK, Judge,

dissenting:

I must dissent from the majority’s decision to quash the instant appeal. According to our Internal Operating Procedures, the full court’s prior orders denying motions to quash or dismiss an appeal “shall be deemed to be the law of the case.” I.O.P. 302 H; Majority Opinion at 636-637 n. 1. Because I cannot agree with the majority’s decision to overrule the Internal Operating Procedures, I believe we should decide the merits of the appeal.

      . Both a motion to dismiss as well as a motion to quash the present appeal have been filed in this case. In February of 1996, this court denied the motion to quash, and, a month later, denied the motion to dismiss the appeal for procedural defects.
      We recognize that "it would be unseemly for a panel of three judges to attempt to reverse or overrule a prior order of the Court.” See I.O.P. 302 H., comment. Our court's internal operating procedures, however, presuppose that such a reversal or overruling would be the result of an appeal "to which the parties have argued” on the merits. Presently, we are faced with an appeal which has been submitted by the parties. Therefore, the parties will not have the benefit of oral argument on the merits of the appeal before this panel. Accordingly, we find, inter alia,
        that the instant order is not appealable under Pa.R.A.P. 341, and, therefore, must be quashed.

      . Specifically, following the August 4, 1995 court hearing, Boyce prepared her own order of the court containing her understanding of the matters resolved during the hearing. She then attempted to file such with the court on August 7. On the same date, Boyce entered a “Judgment on Court Findings” and filed an appeal to this court. Upon plaintiffs' petition, this court granted the motion to quash this appeal from an order never written or signed by the trial court.

      . We point out that appellant’s brief violates multiple rules of appellate procedure. First, Pennsylvania Rule of Appellate Procedure 2116(a) provides in relevant part:
      The statement of the questions involved ... should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon.
      Pa.R.A.P. 2116(a). Boyce’s brief not only exceeds the 15 line limit but, instead, is a four page statement of queries that include parenthetical suppositions and legal arguments. Such length and supplemental information included in a statement of questions is clearly in derogation of the spirit of our appellate briefing rules. Additionally, it is within this court's power to dismiss the appeal based on an appellant’s failure to conform with the requirements of the rules of court. See Pa.R.A.P. 2101.
      We refer the appellant to the insights of the Honorable Ruggero J. Aldisert of the United States Court of Appeals for the Third Circuit:
      When I read an appellant’s brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

        United States v. Hart, 693 F.2d 286, 287 n. 1 (3d Cir.1982) (quoting Aldisert, The Appellate Bar: Professional Competence and Professional Responsibility — A View from the Jaundiced Eye of One Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982)). See also Hughes v. GAF Corp., 364 Pa.Super. 311, 528 A.2d 173 (1987).
      We also admonish appellant for her derogation of Pa.R.A.P. 2117. Ms. Boyce has included parentheticals in her statement of the argument, including, but not limited to, sarcastic comments regarding opposing counsel, illicit character judgments about the trial judge, and improper legal conclusions. We are confounded that an attorney would take such inappropriate license in briefing her appeal. See Pa.R.A.P. 2117(b) (the statement of the case shall not contain any argument; it is the responsibility of the appellant to present in the statement of the case a balanced presentation of the history of the proceedings and the respective contentions of the parties).