author: CAVANAUGH, Judge. TAMILIA, Judge: SAYLOR, Judge,

text:
    663 A.2d 792
    COMMONWEALTH of Pennsylvania, Appellant, v. D.M., Appellee.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1995.
    Filed July 28, 1995.

      Michael Erlich, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Owen Larrabee, Asst. Public Defender, Philadelphia, for appellee.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.
   CAVANAUGH, Judge.

D.M., a substitute high school music teacher, was found not guilty of misdemeanor indecent assault and corruption of minors in a non-jury trial before Common Pleas jurist Nicholas D’Alessandro. This appeal by the Commonwealth is from the grant of his petition to expunge his arrest record thus preserving his record of no prior arrests.

D.M., age 34, had been charged with two acts of inappropriately caressing an eleven year old student while she was assisting him at school. Both Desiree (the victim) and D.M. were fully clothed.

Although Pennsylvania has strictly regulated expungement of records of convicted persons (18 Pa.C.S.A. § 9122), expungement as it relates to individuals arrested and charged, but not convicted, is chiefly a matter of judicial decision. Our supreme court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), established that in a case where the Commonwealth was unable to bear its burden of proof at trial (as here), the expungement burden rests on the Commonwealth to show by compelling evidence justification for the retention of the unconvicted defendant’s arrest records.

The Commonwealth’s view of Wexler is that we should now reverse the expungement order and, in so doing, the appellant would have us undertake (as do they) a detailed review of, and weighing again of the evidence; an evaluation of the trial court’s reluctance to enter a verdict; and, as an appellate court, thus consider the Wexler balancing test which weighs the Commonwealth’s interests against the petitioner’s due process rights. It is urged that having done so, we must perforce reverse the order of the expunction court. It is argued that this conclusion is mandated in aid of the Commonwealth’s compelling duty to protect the health and safety of children.

Where, as here, appellee has been acquitted at trial, we must disagree with the Commonwealth’s analysis which would re-examine the strength of the case against appellees and seek to cast doubt upon the verdict reached by the trial court. The supreme court said as much in Wexler:

We cannot agree with such a conclusion. Rather, if the Commonwealth does not bear its burden of proof beyond a reasonable doubt or admits it is unable to bear its burden of proof, the Commonwealth must bear the burden of justifying why the arrest record should not be expunged.

Commonwealth v. Wexler, 494 Pa. 325, 331, 431 A.2d 877, 880 (1981) (parenthetical references omitted) (emphasis in original).

Consistent with this reading of Wexler, is Commonwealth v. Chacker, 320 Pa.Super. 402, 467 A.2d 386 (1983) which concluded that if the Commonwealth was unable to meet its burden of proof, and, as a result the defendant was not convicted, then, in the matter of expungement the burden is on the Commonwealth to demonstrate by compelling evidence reason for retention of the arrest record.

A similar analysis was undertaken in Commonwealth v. McKee, 357 Pa.Super. 332, 516 A.2d 6 (1986) where the court in a case wherein the defendant had been twice acquitted of rape, proceeded with an analysis which sought to determine if there was compelling evidence by the Commonwealth to justify retention of the arrest record. The court summarized:

The essence of this court’s holdings has been that the Commonwealth’s generalized concern for retention of records, applicable to all defendants, is not a sufficient basis for denying an expunction petition, see Commonwealth v. Wexler, supra, (illicit drug activity) and Commonwealth v. Chacker, supra (drug activity), nor is the retention of records to inhibit further crimes of the same sort a compelling reason. See Commonwealth v. Rose, 263 Pa. Superior Ct. 349, 397 A.2d 1243 (1979) (retail theft); Rambo v. Commissioner of Police, 301 Pa. Superior Ct. 135, 447 A.2d 279 (1982) (drug charges).
The reasons for retaining the records must be focused on the particular petitioner before the court and the justifications must pertain specifically to that case.

Commonwealth v. McKee, 357 Pa.Super. 332, 337-8, 516 A.2d 6, 9 (1986).

The district attorney argues from a claimed position of parens patriae of minor children that the arrest record must be maintained since, otherwise, D.M. may accept a future position “secure in the knowledge that his extra-curricular activities with young girls will not be subject to an added measure of oversight”.

The Commonwealth conducts its reexamination of the evidence and the circumstances of the trial pursuant to the following language in Wexler:

The Superior Court, in Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (Spaeth, J., concurring) listed several factors that should be considered in determining the respective strengths of the Commonwealth’s and petitioner’s interest in this type of case, and we cite them here with approval:
“These [factors] include the strength of the Commonwealth’s case against the petitioner, the reasons the Commonwealth gives for wishing to retain the records, the petitioner’s age, criminal record, and employment history, the length of time that has elapsed between the arrest and the petition to expunge, and the specific adverse consequences the petitioner may endure should expunction be denied.”

Commonwealth v. Wexler, 494 Pa. 325, 329-30, 431 A.2d 877, 879 (1981).

While it is true that Wexler espouses a balancing test that in some cases would include some reconsideration of the “strength of the Commonwealth’s case” and other trial factors, several aspects of the decision deserve consideration. 1) Wexler was dealing with expunction of records of petitioners whose criminal liability was extinguished by nol pros and not, as here, by acquittal at trial. 2) The approved language by Judge Spaeth in Iacino was from a concurring opinion with one joinder and was also from a case where non-culpability was not established by verdict (nolle prosse after suppression of evidence).

In the absence of authority to the contrary, then, we would conclude that in cases where non-culpability has been established by jury or judicial acquittal, the Wexler balancing test is simply the petitioner’s presumptive right to be free of the taint of the embryo of criminality which an arrest record proclaims as weighed against the state’s interest in preserving such records.

The Commonwealth has not overcome appellee’s presumptive entitlement to an expungement. While it is inarguable that under our current social mores, the evil conduct which comes closest to universal condemnation is any criminal charge, implicating in any way, an act of molestation of a child. It is a fact that appellee, a 34 year old teacher, has here faced the charge and won an unimpeachable verdict of acquittal on the merits at a trial. He also fairly won an order of expunction from a separate judicial officer. We must be mindful that the law offers no greater absolution to an accused than acquittal of the charges, and that expunction of an arrest record, after being found not guilty, is not a matter of judicial clemency. Under these circumstances, the courts should not undertake to carve out exceptions to the basic proposition that expunction should follow acquittal. Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827 (1986) (defendant acquitted — “we will not allow____ an arrest record for an unproven charge”). There is no particularized reason why this arrest record must be maintained and we affirm the order of expunction.

Our research discloses that our supreme court has not squarely faced the issue of the expungement rights of an acquitted-at-trial petitioner. A review of our appellate ex-pungement decisions suggests that the issue is not one which is best decided by developing case law. The myriad of circumstances under which arrest and non-culpable disposition may present to the courts have, and will, undoubtedly, offer an insurmountable challenge to the evolvement of symmetrical decisional law. Thus, it presents an important legal subject which is likely beyond our poor powers to evenly decide. Expungement, in the computer age, is a daunting undertaking since the fact of an arrest may find its way into a variety of investigatory, regulatory, and prosecutory data resources. Expunction may no longer be achieved by removing a paper or obliterating an entry in the files of the local police department. The right which the arrestee most imperatively seeks is a declaration of legally sanctioned deniability concerning the fact of his arrest. These are issues best considered by our legislature and we urge them to do so. Our neighboring jurisdictions have legislatively addressed this important problem. See N.J. Rev. Stat. § 2C:52-6, 2C:52-14 (1979); N.Y. (Crim.Proc.) Law § 160.50 (Consol.1994); 10 Del.Code § 1025 (1994); Ohio Rev.Code § 2953.52 (1988).

Order affirmed.

TAMILIA, J., files an opinion in support of reversal.

SAYLOR, J., files a dissenting statement.

Dissenting Opinion By

TAMILIA, Judge:

I respectfully dissent. The thrust of the majority’s Opinion holds this Court may not reweigh the evidence as found by the trial court and therefore we are bound to affirm the expungement Order entered below. The Commonwealth takes the position that acquittal or dismissal of a charge is not the governing criterion to be applied by the court in determining whether expungement may or may not be granted and that where the Commonwealth has met its burden of establishing a superior public necessity for retaining the record, the trial court, in the exercise of its discretion, should, if not must, reject the expungement claim.

This case, on its facts, is clearly distinguishable from any of the reported cases on expungement and does not turn on the weight of the evidence, as posited by the majority, but on the application of evidentiary and procedural mandates in applying the law to the facts of this case. As will be discussed below, had the court applied the proper legal standard to admission of character witness evidence, since the court found the victim to be credible, the weight given to the character evidence which became controlling would not have offset her credibility. Having said that, it then becomes clear that a second judge, hearing the expungement petition, would not have been in the position of relying on dismissal of the charges as controlling whether or not to grant the expungement petition.

I believe this is precisely the type of case where the discretion of the trial judge comes into play in denying ex-pungement because of the overriding need to protect the most vulnerable persons in our society, children entrusted to the care of professional surrogate parents such as teachers.

The Commonwealth takes this appeal from the Order of April 6,1993 granting appellee, D.M.’s petition to expunge his criminal record. Appellee was arrested and charged with indecent assault and corrupting the morals of a minor, as a result of an incident which occurred on February 21, 1992 while appellee was employed as a substitute music teacher at the Tilden School, a public school in Philadelphia.

A nonjury trial was held on August 17, 1992, before the Honorable Nicholas D’Alessandro of Philadelphia Municipal Court. At trial, the eleven-year old complainant, D.W., testified that on the morning of February 21, 1992, she and three other girls were selected to help appellee clean his room. While the other three girls were in the classroom, appellee and D.W. were in his separate office, adjoining the classroom. D.W. testified appellee called her to him and put his head on her chest and his arm around her waist. Then, as D.W. bent over appellee’s desk to straighten his papers, appellee put his hands around her waist and pressed his erect penis, through his clothing, against her buttocks for a few seconds. D.W. then pulled away and went into the classroom, where she began crying and related the incident to the other girls. As she was leaving the classroom, appellee stopped her, asked her what was wrong, apologized to her and asked her not to tell anyone “because I need my job.” (N.T., 8/17/92, pp. 5-10.)

Appellee testified on his own behalf and stated that he “inadvertently bumped” the complainant as he passed the narrow space between his desk and the wall. Appellee denied any other physical contact with the victim. The defense also presented several character witnesses, who answered affirmatively when asked, as a group, whether appellee enjoyed a good reputation for veracity and as a law-abiding citizen.

At the conclusion of the trial, the trial court stated that although he found both the complainant and the defendant to be credible witnesses, he found a deciding factor to be the character witnesses, who created a reasonable doubt in his mind (N.T., 8/17/92, p. 73). Consequently, the trial court found appellee not guilty. I agree with the Commonwealth and the majority does not dispute or even discuss the trial court’s error in not requiring the defense to establish the character witnesses’ familiarity with the defendant’s current reputation in the community, even admitting the testimony of another music teacher, who last had contact with defendant eight years before trial. “It is settled that evidence of a defendant’s character must relate to his reputation ‘at or about the time the offense was committed.’ ” Commonwealth v. Nellom, 388 Pa.Super. 314, 323, 565 A.2d 770, 775 (1989) (citations omitted).

This factor standing alone removes this case from one in which the weight of the evidence is controlling to one wherein the trial court erroneously applied the law in weighing the evidence. This Court and the Supreme Court have stated on numerous occasions, particularly in relation to custody cases, that weight given to evidence by a trial judge to facts may not be disturbed absent a gross abuse of discretion. It is an abuse of discretion when the trial court’s factual conclusions are riot supported by the record and are unreasonable. Kaneski v. Kaneski, 413 Pa.Super. 173, 604 A.2d 1075 (1992). Most cases which are reversed are due to the improper weight given to certain evidence. Kozlowski v. Kozlowski, 362 Pa.Super. 516, 524 A.2d 995 (1987). Thus, even though the majority declines to review the weight given to the evidence presented by the character witnesses, failure to do so ignores the abuse of discretion by the trial judge in conducting an appropriate review of that evidence.

Appellee filed a petition for expungement on September 15, 1992, asserting that he had suffered “embarrassment and irreparable harm.” On April 6, 1993, the Honorable James Murray Lynn of the Court of Common Pleas of Philadelphia County, after hearing on the petition, granted the petition for expungement. In its Opinion in support of its Order, the court stated: “The Commonwealth’s reason for denying defendant’s expungement are [sic] negligible when weighed against defendant’s interest in having his record expunged.” (Slip Op., Lynn, J., 10/13/93, p. 6.) I strongly disagree.

Our Supreme Court has recognized that in certain circumstances substantive due process guarantees an individual the right to have his or her arrest record expunged.

In determining whether justice requires expungement, the Court, in each particular case, must balance the individual’s right to be free from the harm attendant to maintenance of the arrest record against the Commonwealth’s interest in preserving such records.

Commonwealth v. Wexler, 494 Pa. 325, 329, 431 A.2d 877, 879 (1981). The Wexler Court also adopted a list of factors, although not intended to be exclusive or exhaustive, to be considered in determining the respective strengths of the Commonwealth’s and petitioner’s interest therein: the strength of the Commonwealth’s case against the petitioner; the Commonwealth’s reasons for wishing to retain the records; the petitioner’s age, criminal record and employment history, the length of time that has elapsed between the arrest and the petition to expunge; and the specific adverse consequences the petitioner may endure should expunction be denied. Id. Where, as here, the defendant was not found guilty, the burden is on the Commonwealth to set forth compelling reasons for denial of the petition and demonstrate that ex-pungement would be improper. Commonwealth v. Richardson, 354 Pa.Super. 194, 511 A.2d 827 (1986).

In this case, a hearing was held on the petition on April 6, 1993. Unfortunately, the arguments of counsel were held off the record and are not preserved for our review. At the conclusion of the hearing, Judge Lynn stated:

THE COURT: I am going to grant [the petition]. He was found not guilty at trial. The defendant was found not guilty at trial after a full trial. We don’t know the reason for this not guilty, presumably it’s because the Commonwealth witnesses were not believed.
The Commonwealth had an opportunity to fairly address the issue in the case, factual issue, present them and they had their day in court, a full day in court and there was a resolution by the finding of not guilty.
There is nothing else remaining other than the fact that there is an allegation which has been proven — not been prove rather, not been proven which is what this country is all about.

(N.T., 4/6/93, p. 2 (emphasis added).)

Inasmuch as the trial court stated unequivocally at the conclusion of trial that, independently, it found both the complainant and appellee to be credible, but found a reasonable doubt created by appellee’s character witnesses alone, and inasmuch as it was not established that the character witnesses were familiar with defendant’s current reputation as a truthful and law-abiding person, I would find the petition court did not consider properly the factors enumerated in Wexler, supra, 325, 431 A.2d 877.

Reviewing those factors seriatim, the Commonwealth’s case was much stronger than the petition court allowed, and was based not on the rejection of the complainant’s testimony, but, rather, on the acceptance of flawed character testimony as the “deciding factor.” Indeed, the complainant was found to be credible by the trial court, even after being subjected to vigorous cross-examination. Compare Richardson, supra, at 194, 511 A.2d 827 (denial of petition to expunge reversal in rape case where, inter alia, alleged victim was not present to testify at trial and in which petitioner was not found guilty). It can be argued with some force that absent the flawed character evidence, appellee would have been found guilty. This case differs substantially from Wexler, supra, 325, 431 A.2d 877 where the case was nolle prossed because the Commonwealth averred it could not establish a prima facie case against the accused. Under those circumstances, the Supreme Court held the Commonwealth was faced with a heavy burden to present compelling evidence justifying the retention of Mr. and Mrs. Wexler’s arrest record. Here, a prima facie case was made out and the trial court found credible evidence (the victim’s testimony) that the acts alleged in the complaint had occurred. Only the presentation of the alleged character evidence produced the result of acquittal in this case. In any event, the petition court failed to analyze this factor properly. The court hearing the petition for ex-pungement did not have the benefit of hearing the victim’s testimony but nevertheless is bound by the trial court’s finding that the testimony was credible and therefore binding on the issue of the acts having been committed to which she testified. While the trial court also found the appellee’s testimony to be credible, he did not exculpate appellee because of that testimony, but determined that a finding of guilt was not sustained beyond a reasonable doubt because of the character evidence alone. A mere affirmative response as a group by character witnesses to a question as to appellant’s good character, without interrogating at least some of those witnesses, as is usually done when multiple character witnesses are presented, relating present knowledge of his character, hardly provides a conclusive basis upon which credible testimony from the victim can be ignored. Expungement is not required by a finding of not guilty standing on such flawed character testimony.

I also find significant that although appellee had no prior criminal record, less than one month elapsed between his acquittal and the filing of the petition to expunge. Such a brief period of time is not conducive to a proper determination of whether expungement is warranted. It is one of the enumerated considerations in Wexler (the length of time elapsed between the arrest and the petition to expunge) which I find particularly relevant here.

Further, although it cannot be denied an arrest record poses considerable harm to an individual, harm appellee alleges here to be “irreparable,” it does not override the Commonwealth’s interest in retaining the record. In any event, the purposes for which the Commonwealth may retain the record of arrest are limited. The Criminal History Record Information Act, 18 Pa.C.S. § 9101 et seq., provides, in pertinent part:

§ 9124. Use of records by licensing agencies
(b) Prohibited use of information. — The following information shall not be used in consideration of an application for a license, certificate, registration or permit:
(1) Records of arrest if there is no conviction of a crime based on the arrest.

18 Pa.C.S. § 9124(b)(1).

As the Commonwealth correctly notes, the welfare of children in our public schools falls under the Commonwealth’s parens patriae authority. As such, the Commonwealth has an overriding interest in maintaining the records of those most critically charged with exercising that authority in our schools. To allow the expungement of an arrest record resulting from an incident of sexual abuse in which the trial court found the complainant to be credible would be a gross dereliction of the Commonwealth’s parens patriae authority.

Consequently,

as a matter of law, the lower court failed to afford the appropriate significance to the law enforcement justification for retaining this specific appellee’s arrest records. The lower court did not err in taking judicial notice of the possible harm which might be suffered by an individual, however, in this case that potential harm is far outweighed by the Commonwealth’s asserted interests.

Commonwealth v. McKee, 357 Pa.Super. 332, 339, 516 A.2d 6, 10 (1986).

The inquiry, however, does not end here as the action of the trial court failed to take into account the extensive and exhaustive provisions of the Child Protective Services Law, 23 Pa.C.S. §§ 6301 et seq. Despite the limited application of 18 Pa.C.S. § 9124, supra, the adjudication by the court that the victim’s testimony was credible fulfills the requirement for the definition of a “founded report” pursuant to 23 Pa.C.S. § 6303, Definitions.

“Founded report” is defined as: “a report made pursuant to this chapter if there has been any judicial adjudication based on a finding that a child who is subject of the report has been abused.” Pursuant to this section, “child abuse” is defined as:

Serious physical or mental injury which is not explained by the available medical history as being accidental, sexual abuse, sexual exploitation or serious physical neglect of a child under 18 years of age if the injury, abuse or neglect has been caused by the acts or omissions of the child’s parents or by a person responsible for the child’s welfare ....

Further, “sexual abuse” is defined as:

The obscene or pornographic photographing, filming or depiction of children for commercial purposes or rape, molestation, incest, prostitution or other forms of sexual exploitation of children under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby, as determined in accordance with regulations of the [Department of Public Welfare of the Commonwealth].

It is a requirement of the Child Protective Services Law, section 6311, that school administrators report any child abuse, actual or suspected.

§ 6311. Persons required to report suspected child abuse
(a) General rule. — Persons who, in the course of their employment, occupation or practice of their profession, come into contact with children shall report or cause a report to be made in accordance with section 6313 (relating to reporting procedure) when they have reason to believe, on the basis of their medical, professional or other training and experience, that a child coming before them in their professional or official capacity is an abused child. The privileged communication between any professional person required to report and the patient or client of that person shall not apply to situations involving child abuse and shall not constitute grounds for failure to report as required by this chapter.
(b) Enumeration of persons required to report. — Persons required to report under subsection (a) include, but are not limited to, any licensed physician, osteopath, medical examiner, coroner, funeral director, dentist, optometrist, chiropractor, podiatrist, intern, registered nurse, licensed practical nurse, hospital personnel engaged in the admission, examination, care or treatment of persons, a Christian Science practitioner, school administrator, school teacher, school nurse, social services worker, day-care center worker or any other child-care or foster-care worker, mental health professional, peace officer or law enforcement official.

23 Pa.C.S. § 6311(a), (b) (emphasis added).

Since section 6319, Penalties for failure to report, provides that failure to report suspected child abuse is a summary offense for the first violation and a misdemeanor of the third degree for the second or subsequent violation, it can be assumed that the proper school official reported this matter to the Department of Public Welfare as provided by section 6313, Reporting procedure.

It necessarily follows that such a report is subject to the Powers and Duties of Department of Public Welfare, 23 Pa.C.S. §§ 6331-6349. Expungement of appellee’s record pursuant to the section 9122 of the Criminal History Record Information Act does not provide for expungement from the Department of Public Welfare statewide central registry. 23 Pa.C.S. § 6336, Information in Statewide central register. Failure to convict the appellant and expungement of his criminal record, however, would require the expungement of the child welfare files, leaving no safeguards or protections for children in similar situations.

While the record contained in police files would not be available to child care facilities, pursuant to section 6344(b)(1), because there was no conviction, see 18 Pa.C.S. § 9121(b)(2), it is incumbent on both police authorities and Public Welfare authorities to maintain these records for a reasonable time to facilitate detection and prevention of further acts of sexual abuse from individuals where the record is sufficiently convincing that molestation has occurred even without the conviction. It also points to a gap in the law which needs to be closed by the Legislature to provide more adequate safeguards to children. It is not uncommon for children to be seriously abused or even put to death by persons who have had extensive arrest records for physical and sexual abuse but who have not been convicted. The need to have those records considered by schools and child welfare agencies and services for placement of children is beyond question. The recent death of a three-year old child in Allegheny County, at the hands of her putative father, after a Juvenile Court Judge placed the child with him when arrest records of his violent behavior (not resulting in conviction) were not placed before the court, is a perfect example of the need for the Commonwealth to retain such records. A sophisticated system for obtaining records from state and local police before any child is placed by Allegheny County Children and Youth Services (CYS) has resulted from the public outcry in that case.

While it is true that an en banc panel of Commonwealth Court addressed the issue of whether teachers who abuse their students are within the scope of the Child Protective Services Law and subject to the jurisdiction of the Department of Public Welfare, finding they are not, Pennsylvania State Education Association v. Commonwealth, 68 Pa. Cmwlth. 279, 449 A.2d 89 (1982) (hereinafter “P.S.E.A.”), this finding is not binding on Superior Court and more importantly the Supreme Court, in a recently filed Opinion, Commonwealth v. Gerstner, 540 Pa. 116, 656 A.2d 108 (1995), overruled the P.S.E.A. Opinion which absolved teachers from being subject of Child Protective Services Law reports as “person(s) responsible for the child’s welfare.” Since the Child Protective Services Law was enacted, more recent legislation has expanded the protection of children by providing that the statute of limitations an offenses against children (sexual abuse) does not begin running until the minor has reached 18 years of age. 42 Pa.C.S. § 552(c)(3). Section 5554, Tolling of statute, subsection three, reaffirms section § 552(c)(3), stating:

... the period of limitation does not run during any time when:
(3) a child is under 18 years of age when the crime involves injuxy to the person of the child caused by the wrongful act or neglect, or unlawful violence, or negligence of the child’s parents or by a person responsible for the child’s welfare, or any individual residing in the same home as the child, or a paramour of the child’s parents.

It is without question that this legislation, enacted in 1985, subsequent to P.S.E.A., gave greater clarification to the definition of “persons responsible for a child’s welfare,” while the extension of the statute of limitations as to minors to commence running only upon the minor reaching 18 years of age signals the intent to provide a broad rather than restrictive protection of minors from adults responsible for their care.

It would appear illogical and disingenuous to find that babysitters and paramours could come within the class of persons responsible for the welfare of children, but teachers, who have continuous long standing and intimate associations with children and in some cases greater influence over them than then-parents, would be excluded from the protection given children by the Child Protective Services Law. Teachers and principals are required to report suspected child abuse as to children in their care. It is inconceivable that a child who reports or manifests abuse from a teacher is not provided the protection of the act requiring school officials to report sexual abuse. In some teacher-student relationships, bonds become extremely strong and are of great value to the developing child. It can only be imagined how many students go on to achieve greatness in academics, sports, music or art because of the relationship with and direction by a favorite teacher. Unfortunately, however, these relationships also can be the basis whereby a teacher obtains improper and destructive control over a child who needs to be protected, thereby engaging in improper and sexually abusive activities with the child. To allege, as in P.S.E.A., that teachers are not within the definition of persons responsible for the welfare of the child is to ignore reality and reports throughout the country in the newspapers and television and on our court dockets of the frequency of such occurrences. In relation to the number of children in school, the reports are small, but in aggregate number and the damaging effect on the children so victimized, the number is substantial.

Justice Montemuro, speaking for the Supreme Court, in Gerstner stated:

We, likewise, find Section 5552(c)(3) to be a strong indication that, for the purposes of 5554(3), the legislature did not intend the phrase “person responsible for the child’s welfare” to be given the restrictive definition employed by the Commonwealth Court in Pennsylvania State Education Association v. Commonwealth, Department of Public Welfare, 68 Pa.Cmwlth. 279, 449 A.2d 89 (1982). In Pennsylvania State Education Association, the Commonwealth Court was called upon to interpret the phrase “person responsible for the child’s welfare” in the context of 11 Pa.C.S. § 2203 (recodified at 23 Pa.C.S. § 6303), which defines the term “child abuse”. The Commonwealth Court subsequently held that a teacher was not a “person responsible for the child’s welfare” on the ground that this phrase referred only to those individuals providing such matters as housing, furnishings, income, clothing, and medical care.
We find this definition, however, to be wholly inadequate even if we were to adopt appellant’s position that Section 5554(3) applies only in those situations in which the perpetrator was in a position to deter the reportage of the abuse. While a school teacher may not provide a child’s home environment, such an individual clearly occupies a position of sufficient authority to be able to deter a child from reporting abuse. Thus, Pennsylvania State Education Association is overruled.

Id. 540 Pa. at 126, 127, 656 A.2d at 113, 114.

Due to P.S.E.A., there necessarily was a chilling effect on reports to the Department of Public Welfare abuse hot-lines, and it is questionable whether records could be retained once a defendant was discharged. If neither the state child abuse reporting system nor the criminal identification system retains records of appellant’s activity relating to students in his charge, the ability of the school system or the community to protect children from him is seriously impaired.

The consequence of the “see no evil, speak no evil” approach adopted by the Philadelphia Common Pleas Court in this case is vividly documented in Baby Doe v. Methacton School District, 880 F.Supp. 380 (E.D.Pa.1995). In that case, the Federal District Court refused to grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim for which relief can be granted. Factually, defendant DiFonzo, as a band teacher with the Methacton School District, had engaged in a three-year relationship with a 12-year old female student as a result of which, upon confrontation by the school superintendent and school principal in 1970, he agreed to sign a resignation letter they prepared stating his resignation was for “personal reasons.” The school officials did not notify anyone (CYS or police) of the abuse nor did they place any indication of the true reason for the resignation in any Methacton School District files. Three weeks later, DiFonzo applied for a position as a music teacher with the Philadelphia School District. The Philadelphia School District allegedly requested a recommendation for DiFonzo from the Methacton School District, which responded that DiFonzo’s services had been “satisfactory”, giving no indications of possible pedophilic problems. DiFonzo was subsequently hired by the Philadelphia School District. Almost 14 years later, when DiFonzo was still an employee of the Philadelphia School District, he sexually abused Baby Doe, a 9-year old girl who was one of his students.

Relying on decisions of the Third Circuit Court of Appeals, the District Court here refused to dismiss the charge against the school district because the behavior of the superintendent and other officials over a three-year period exhibited a policy, procedure or custom by failing to act on earlier abuse or prevent future abuse and showed deliberate indifference to the welfare of Baby Doe’s constitutional rights. Despite a 14-year time lag between the termination by Methacton and the abuse of Baby Doe at Philadelphia, proximate cause was established in the failure to inform Philadelphia of the earlier abuse which would have resulted in rejection of DiFonzo as an employee, preventing the harm to Baby Doe.

This case clearly illustrates the necessity that all parties responsible for dealing with sexual abuse in the context of the school environment be held accountable to protect the constitutional rights of children. It lends great credence to the role of the courts and the Commonwealth, exercising parens patriae powers, to require that arrest records be preserved where the facts support a prima facie case.

The first case my research discloses which deals with this issue at the appellate level is Commonwealth v. Malone, 244 Pa.Super. 62, 366 A.2d 584 (1976). In Malone, Judge Hoffman of this Court wrote:

The instant case raises a question of first impression in Pennsylvania; whether an accused is entitled to a hearing to determine whether he has a right to expungement of his arrest record after the charges are dismissed at the preliminary hearing.

Id. at 64, 366 A.2d at 585. The majority determined that a hearing in the Common Pleas Court was required to determine whether expungement was in order after considering the competing interests of society to retention of records and the individual right of privacy. Malone did not establish a basis for determining when expungement would be justified.

In a strong dissent by Judge Van derVoort, joined by two other members of the then seven-member Court, reference was made to statutes such as the Child Protective Services Law and the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§ 780-101 et seq., providing for limited ex-pungement under certain conditions. The view of the dissent was there was no power of a court to expunge except by statutory authority. Legislation subsequent to Malone did detail more specifically conditions requiring expungement. See 18 Pa.C.S. § 9122 Expungement. But the issue presented in this case has not been circumscribed by legislation and remains a matter to be determined by the court on a case-by-case basis. Wexler, supra, 494 Pa. 325, 431 A.2d 877, following amendments to the Criminal History Record Information Act dealing with expungement, continued to follow the guide established by Malone, supra, 244 Pa.Super. 62, 366 A.2d 584, Commonwealth v. Briley, 278 Pa.Super. 363, 420 A.2d 582 (1980) (where Commonwealth has been unable to establish a prima facie case against the individual petitioning for expungement, it must present compelling evidence justifying retention of the arrest record), and Commonwealth v. Iacino, 270 Pa.Super. 350, 411 A.2d 754 (1979) (listing several factors that should be considered in determining the respective strengths of the Commonwealth’s and petitioner’s interest in this type of case, cited with approval). Those factors are referred to supra in my analysis of the issue here. The clearest statement of the position mandated by this case is contained in Commonwealth v. Mueller, 258 Pa.Super. 219, 392 A.2d 763 (1978). There, Judge Cercone stated:

Accordingly, where the record shows that the Commonwealth made out a prima facie case of guilt on the part of an accused, he will have the burden to affirmatively demonstrate non-culpability at a hearing, otherwise his petition to expunge will be denied. If, however, such a showing is made, the court must weigh the Commonwealth’s interest in retaining appellee’s arrest record against appellee’s interest in being free from whatever disabilities the record may create.

Id. at 223, 392 A.2d at 765.

In this case, a prima facie case was made out and despite dismissal on questionable legal grounds (character witnesses unfamiliar with defendant’s current reputation), the Commonwealth was able to show a compelling interest in retaining the arrest record. No facet of present society is more disturbing and troublesome than the sexual exploitation of children by unprincipled and immoral adults. They have a capacity to infiltrate occupations and activities which provide services to children, whether it be teaching, choir groups, boy or girl scouts, camp activities or child care programs, because of the presumed competence and trust imposed in such adults by society, and the imperative that children obey them and accept their directions and counsel. The vast number of dedicated and honest workers in those areas suffer from the cloud of suspicion and distrust that descends around them because of activities of unconscionable few. It is necessary for the protection of the highly vulnerable children subject to perversion, and to preserve the trust imposed in the committed and honorable employees to maintain close scrutiny over those who have been implicated within reasonable certainty in sexual exploitation of children.

Under the circumstances of this case, it is clearly necessary that the criminal history identification records be retained so that appellant’s future activities may be tracked and hopefully further abusive behavior deterred.

I would vacate the Order of expungement.

SAYLOR, Judge,

dissenting:

Because I conclude that the Commonwealth met its burden of justifying retention of Appellee’s arrest record by reference to the factors adopted by our Supreme Court in Commonwealth v. Wexler, 494 Pa. 325, 431 A.2d 877 (1981), I respectfully dissent from the majority’s decision to affirm the ex-pungement order.

      . The universal scorn attached to such a charge is, of course, a reason why expungement is of great importance to one so accused.

      . In the only instance where Pennsylvania law does provide for expunction of arrest record after acquittal, the right is unconditional. See The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. 780-119.

      . See Russell J. Ober, Jr., Esq., Expungement of Criminal Arrest Records: the State of the Law in Pennsylvania, 83 Dick.L.Rev. 25 (1978) where a similar recommendation is made.

      . 18 Pa.C.S. § 3126.

      . Id., § 6301.

      . A petitioner is not required to allege and prove he has suffered specific harm before he is entitled to expungement. Commonwealth v. McKee, 357 Pa.Super. 332, 516 A.2d 6 (1986).

      . Although the parties do not indicate appellee’s present employment status, at the time of trial he still was employed as a substitute teacher in the Philadelphia public schools (N.T., 8/17/92, p. 52).

      . (b) Information submitted by employees. — ____
      (1) Pursuant to 18 Pa.C.S. Ch. 91 (relating to criminal history record information), a report of criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police central repository contains no such information relating to that person. The criminal history record information shall be limited to that which is disseminated pursuant to 18 Pa.C.S. § 9121(b)(2) (relating to general regulations).

      . § 9121. General regulations
      (b) Dissemination to noncriminal justice agencies and individuals. — Criminal history record information shall be disseminated by a State or local police department to any individual or noncriminal justice agency only upon request:
      (2) Before a State or local police department disseminates criminal history record information to an individual or noncriminal justice agency, it shall extract from the record all notations of arrests, indictments or other information relating to the initiation of criminal proceedings where:
      (ii) no conviction has occurred[.]


source: Caselaw Access Project

author: KELLY, Judge.

license: Public Domain

text:
    663 A.2d 803
    COMMONWEALTH of Pennsylvania v. Allen WOODS, Appellant.
    Superior Court of Pennsylvania.
    Argued June 8, 1995.
    Filed Aug. 16, 1995.

      Mark P. Much, Media, for appellant.
    Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.
    Before McEWEN, TAMILIA and KELLY, JJ.
   KELLY, Judge.

In this appeal, we are called upon to determine whether the trial court must dismiss charges against an appellant where the Commonwealth failed to bring the appellant to trial within one hundred, eighty days pursuant to the Interstate Agreement on Detainers, 42 Pa.C.S.A. § 9101, or, whether the time limitation may be tolled by the appellant’s inability to stand trial due to his continuous presence in federal custody. We hold that where the Commonwealth has made diligent efforts to retrieve an appellant from federal custody, the one hundred, eighty day statute of limitations is tolled until such time as the appellant reaches the promised destination where the Commonwealth may, actually, take him into physical custody.

Appellant, Allen Woods, appeals from his judgment of sentence entered on May 13,1994, in the Court of Common Pleas, Delaware County, following a non-jury trial before the Honorable Joseph F. Battle, where appellant was convicted of robbery, theft, receiving stolen property, and criminal conspiracy. We affirm.

On June 28, 1991, appellant was arrested and charged with robbery, theft, simple assault, receiving stolen property and criminal conspiracy. On September 21, 1991, at his preliminary hearing, appellant was bound over on all charges. Arraignment was set for October 24, 1991 in Delaware County. (Trial Court Opinion, 11/17/94 at 1). Appellant did not appear, and a bench warrant was issued. The Commonwealth had no indication as to his whereabouts until July 16, 1993, when a detainer action letter was received from the U.S. Department of Justice showing that appellant was in custody at Federal Corrections Institution (FCI), Oxford, WI, serving a federal sentence. (Id. at 1). The Delaware County District Attorney’s Office responded to the communique on July 27, 1993, indicating that appellant was a fugitive from outstanding Pennsylvania charges. (N.T. 2/16/95 at 6).

On August 26, 1993, the Delaware County District Attorney’s Office received appellant’s written request for final disposition of the charges, triggering the provision of the Interstate Agreement on Detainers requiring a prisoner to be brought to trial on the designated charges no later than one hundred, eighty days from receipt of request by the District Attorney’s Office. At that time, FCI authorities in Wisconsin assured Delaware County that appellant would be back in Pennsylvania at FCI Allenwood in “one or two weeks.” (Id. at 8). On September 30, 1993, the District Attorney’s Office contacted FCI Allenwood and was informed that appellant was “on a bus, plane or train.” (Id. at 9). On November 4, 1993, the District Attorney’s Office again contacted Allenwood and this time was told that appellant was in FCI, El Reno, OK (a “clearinghouse” for transferring federal prisoners). (Id. at 9). The District Attorney’s Office immediately instituted paperwork to secure the return of appellant to Delaware County. On November 16, 1993, appellant arrived at Allenwood. (Id. at 10). He was returned to Delaware County Prison on January 27, 1994. (Id. at 11). On April 13, 1994, appellant waived his right to a jury trial and was convicted by Judge Battle of robbery, theft, receiving stolen property, and criminal conspiracy. Judge Battle sentenced appellant to a term of two to four years imprisonment for robbery to be served concurrently with his fifteen year federal sentence and, for criminal conspiracy, six to twenty-three months imprisonment, to be served consecutively to the federal sentence. (Trial Court Opinion, 11/17/94 at 2).

On appeal, appellant raises two questions for our review:

1. DID THE TRIAL COURT ERR IN DENYING APPELLANT’S MOTION TO DISMISS THE CHARGES BECAUSE THE COMMONWEALTH FAILED TO BRING [APPELLANT] TO TRIAL WITHIN 180 DAYS IN ACCORDANCE WITH THE INTERSTATE COMPACT ON DETAINERS?
2. WAS TRIAL COUNSEL INEFFECTIVE FOR FAILING TO FILE A MOTION TO DISMISS FOR A VIOLATION OF THE INTERSTATE AGREEMENT ON DETAINERS?

(Appellant’s Brief at 3).

The Interstate Agreement on Detainers, enacted by Pennsylvania in 1976, states in part:

Article III
(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

42 Pa.C.S.A. § 9101(III)(a).

Both appellant and the Commonwealth stipulate that the Office of the District Attorney of Delaware County received appellant’s written request for final disposition on August 26, 1993. Appellant argues that Delaware County was therefore required to commence his trial on or before February 22, 1994. Appellant further asserts that the Commonwealth did not file for a continuance, and yet did not commence trial until April 13, 1994, exceeding the one hundred, eighty day statute of limitations by forty-nine days. Appellant claims that this was a breach of procedure and necessitated a dismissal of the charges against him. We disagree.

The Interstate Agreement on Detainers is consistent with Rule 1100 of the Pennsylvania Rules of Criminal Procedure in its concern with bringing offenders to a speedy trial. While the Interstate Agreement on Detainers requires that a prisoner detained in another state’s jurisdiction be brought to trial within one hundred, eighty days of the Commonwealth’s receipt of the prisoner’s request for final disposition, Rule 1100 (not specifically addressing extradition) requires trial to commence within one hundred, eighty days of the date on which the complaint is filed.

Both statutes, however, have identified one hundred, eighty days as an appropriate limit for a “speedy trial” and both have provisions for exceptions to the linear running of the one hundred, eighty days. Article (VI)(a) of the Interstate Agreement on Detainers states:

(a) In determining the duration and expiration dates of the time periods provided in Articles III and IV of this agreement, the running of said time periods shall be tolled whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.

42 Pa.C.S.A. § 9101(VI)(a) (emphasis added). Rule 1100 states:

(c) In determining the period for commencement of trial, there shall be excluded therefrom:
(1) the period of time between the filing of the written complaint and the defendant’s arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives Rule 1100;
(3) such period of delay at any stage of the proceedings as results from:
(i) the unavailability of the defendant or his attorney;
(ii) any continuance granted at the request of the defendant or his attorney.

Pa.R.Crim.P. 1100(c) (emphasis added).

This Court has been consistent, whether under the Interstate Agreement on Detainers or Rule 1100 cases, in acknowledging that “the period of time between an accused’s waiver of extradition and his subsequent return to Pennsylvania may be held ultimately excludable if the Commonwealth demonstrates due diligence in effectuating that return,” Commonwealth v. Martin, 306 Pa.Super. 108, 115, 452 A.2d 238, 241 (1982), and in designating this period of time as a period of “unavailability of the defendant” as specified in Pa.R.Crim.P. 1100(c)(3)(i), and a period when defendant is “unable to stand trial.” 42 Pa.C.S.A. § 9101(VI)(a).

Due diligence is a “fluid concept” which must be determined on a “case by case” basis. Commonwealth v. Lloyd, 370 Pa.Super. 65, 81, 535 A.2d 1152, 1160 (1988), allocatur denied, 518 Pa. 637, 542 A.2d 1367 (1988). But it is well settled that a “defendant incarcerated in another jurisdiction will be deemed ‘unavailable’ for the period of time during which his presence, despite the Commonwealth’s duly diligent efforts, cannot otherwise be obtained.” Id. (citing Commonwealth v. Maxwell, 355 Pa.Super. 575, 513 A.2d 1382 (1986), appeal dismissed, 524 Pa. 53, 569 A.2d 328 (1989)). What is more, “in addition to any other circumstances precluding the availability of the defendant ... the defendant should be deemed unavailable for the period of time during which ... a responding jurisdiction delayed ... extradition.” Id. (citing Commonwealth v. DeMarco, 332 Pa.Super. 315, 481 A.2d 632 (1984)). When it has been determined that the Commonwealth adhered to procedures requested by the sending jurisdiction and has properly relied on that jurisdiction’s assertions, the Commonwealth will have exercised “due diligence.” Id. Furthermore, insofar as the Commonwealth believed it pursued the prisoner’s return to the fullest extent within its control, any “period of inactivity” is excluded from the running of the statute of limitations. Id. at 82, 535 A.2d at 1160. What is important is what the Commonwealth did do; not what it did not do. Id. at 83, 535 A.2d at 1161.

Instantly, the record shows that the Office of the District Attorney of Delaware County tracked the whereabouts of appellant at each juncture when he missed his appointed return to the Commonwealth. Upon receipt of appellant’s request for final disposition, on August 26, 1993, the one hundred, eighty day time period began to run. 42 Pa.C.S.A. § 9101(III)(a). Once the “one or two weeks” stipulated by the federal authorities to return him to FCI Allen-wood (N.T. 2/16/95 at 8) had come and gone, the district attorney’s office contacted Allenwood, at which point the district attorney was told that appellant was en route. (Id. at 9). Approximately one month later, the Delaware County District Attorney again contacted Allenwood and learned that appellant was, instead, in FCI, El Reno, OK. The District Attorney instituted additional paperwork to expedite transfer to Delaware County from Allenwood as soon as appellant arrived there. Finally, appellant arrived at Allenwood on November 16, 1993. At this point, eighty-two days had elapsed from the District Attorney’s receipt of appellant’s request for final disposition, during which he was unavailable and unable to stand trial.

It is not merely the fact of appellant’s incarceration in another jurisdiction that deems him unavailable. Rather, appellant is considered unavailable only for that period of time during which he could not be retrieved, Commonwealth v. Heath, 288 Pa.Super. 119, 125, 431 A.2d 317, 319 (1981), or a responding jurisdiction delayed extradition, Commonwealth v. Kovacs, 250 Pa.Super. 66, 71, 378 A.2d 455, 458 (1977); Commonwealth v. Alexander, 318 Pa.Super. 344, 464 A.2d 1376 (1983), despite due diligence by the Commonwealth. Commonwealth v. McCafferty, 242 Pa.Super. 218, 224, 363 A.2d 1239, 1241 (1976) (quoting Comment to Rule 1100).

In Commonwealth v. Richbourgh, 246 Pa.Super. 300, 369 A.2d 1331 (1977), too, this Court found that an accused was “unavailable” under Rule 1100 for the period of time during which he was in another state only when the Commonwealth exercised diligent efforts to secure his timely return. Commonwealth v. Kovacs, supra at 70, 378 A.2d at 457. See also Commonwealth v. Smith, 274 Pa.Super. 229, 232, 418 A.2d 380, 382 (1980) (where Commonwealth made no attempt to secure defendant while statute of limitations ran, requiring charges be dismissed). With respect to the Interstate Agreement on Detainers, we have held that defendants incarcerated outside Pennsylvania are to be afforded the protection of Rule 1100. Commonwealth v. McCafferty, supra at 224, 363 A.2d at 1241.

The Commonwealth has the burden of proving by a preponderance of the evidence that it exercised due diligence in seeking the return of appellant before it can establish that appellant was “unavailable” and therefore “unable to stand trial” as specified in Rule 1100 and the Interstate Agreement on Detainers. Commonwealth v. Newman, 382 Pa.Super. 220, 229, 555 A.2d 151, 155 (1989), allocatur denied, 540 Pa. 580, 655 A.2d 512 (1995). The court record contains ample evidence that the Office of the District Attorney of Delaware County was diligent in tracking and requesting the return of appellant at every appropriate juncture while appellant was within federal jurisdiction. (N.T. 2/16/95 at 5-11). Therefore, the time from receipt of appellant’s request for final disposition (August 26, 1993) until appellant was received at FCI Allenwood (November 16, 1993), a total of eighty-two days, may properly be tolled against the one hundred, eighty day statute of limitations. Appellant was brought to trial one hundred, forty-seven days later, well within the one hundred, eighty day limit. We, therefore, conclude that the trial court did not violate the provisions of the Interstate Agreement on Detainers Act, 42 Pa.C.S.A. § 9101, which requires that appellant be brought to trial within one hundred, eighty days from the time when the prosecuting officer receives appellant’s request for final disposition, where the trial court justifiably found that appellant was “unable to stand trial” for a period of eighty-two days. See 42 Pa.C.S.A. § 9101(vi)(a).

Appellant next argues that he was denied his right to effective assistance of counsel because trial counsel failed to file a motion to dismiss charges where trial commenced more than one hundred, eighty days after the district attorney’s receipt of appellant’s request for final disposition on August 26, 1993.

In order to prevail on an assertion of ineffectiveness of counsel, three elements must be proven. Appellant must show that “by act or omission, counsel was arguably ineffective; counsel’s act or omission could not have had a reasonable basis designed to effectuate appellant’s interests; and appellant was prejudiced by the act or omission in that but for the arguably ineffective act or omission there is reasonable probability that the result would have been different.” Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987) (emphasis added).

Instantly, the assertion that the one hundred, eighty day statute of limitations had expired is dispelled by the tolling of those days when appellant was in federal custody outside of Pennsylvania despite the Commonwealth’s diligent efforts to retrieve him. The convictions resulting from the trial of April 13, 1994 were a matter for the trier of fact and do not change once the legally elapsed time has been determined. Thus, there is no possibility that the result would have been different even if trial counsel had filed the motion to dismiss.

The Commonwealth of Pennsylvania’s own Rule 1100 and its adoption of the Interstate Agreement on Detainers are consistent in their expression of the Commonwealth’s desire to bring the criminally accused to a speedy trial. In this way, two interests are served: (1) the protection of the accused’s speedy trial rights and (2) the protection of society. Commonwealth v. Martin, 306 Pa.Super. 108, 114, 452 A.2d 238, 241 (1982). Thus, such legislation was not enacted to allow the criminal defendant to escape from good faith prosecution which has been delayed beyond the statute of limitations through no fault of the Commonwealth. Id. at 114, 452 A.2d at 241; see also Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983). Rather, we have always recognized the “collective right of the community to vigorous law enforcement.” Commonwealth v. Martin, supra at 115, 452 A.2d at 241. And, “[s]o long as there has been no misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of an accused, Rule 1100 [and its corollary section in the Interstate Agreement on Detainers] must be construed in a manner consistent with society’s right to punish and deter crime.” Id. at 115, 452 A.2d at 241.

Therefore, pursuant to the provisions for tolling time when appellant was unavailable for trial despite documented diligent efforts of the Commonwealth to secure him, appellant was brought to trial within the prescribed statutory limit and whether or not trial counsel filed a motion to dismiss, appellant’s conviction would still stand. Thus, counsel may not be deemed ineffective for failing to file a meritless motion. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701.

      . 18 Pa.C.S.A. § 3921.

      . 18 Pa.C.S.A. § 3925.

      . 18 Pa.C.S.A. § 903.

      . The simple assault charge was dismissed before trial.

      . For sentencing purposes, the convictions for theft and receiving stolen property merged with robbery.

      . Appellant’s brief originally raised three issues, including one which challenged the sufficiency of evidence. However, before submission, appellant’s counsel withdrew the third issue.


author: CERCONE, Judge:

text:
    664 A.2d 102
    John DOE and Jane Doe, H/W, Appellants, v. David M. RAEZER, M.D., Stanley H. Shrom, M.D. and Usurg Associates, Inc. John DOE and Jane Doe, H/W, v. David M. RAEZER, M.D., Stanley H. Shrom, M.D. and Usurg Associates, Inc., Appellants.
    Superior Court of Pennsylvania.
    Argued March 9, 1995.
    Filed July 18, 1995.
    Reargument Denied Sept. 27, 1995.

      James E. Beasley, Philadelphia, for John and Jane Doe.
    James C. Stroud, Philadelphia, for Raezer, Shrom and Usurg Associates.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This case presents an appeal and cross-appeal from the order of the trial court which granted defendants’ motion for remittitur or, in the alternative, a new trial. We reverse.

The facts, in short, are as follows: John Doe, a diabetic, experienced difficulty in completely emptying his bladder. In July 1987, Mr. Doe consulted David M. Raezer, M.D., a urologist and shareholder in the professional corporation Usurg Associates, Inc. Dr. Raezer diagnosed Mr. Doe as suffering from severe phimosis, involving a contraction of the foreskin of the penis, and balanitis, an inflammation of the glans penis causing a leaking of urine from that organ. On July 21, 1987, Dr. Raezer performed a circumcision on Mr. Doe to alleviate the problem.

Before surgery, Mr. Doe claims that his erect penis measured six and one-half inches. Mr. Doe testified that after the first procedure, he measured only two and one-half inches. Additionally, the build up of urine at night resulted in external tearing and bleeding of the surgical wound. Several weeks after surgery, Mr. Doe was permitted to try sexual intercourse. Mr. Doe discovered that he could not engage in intercourse without tearing and bleeding, and could not ejaculate. Mr. Doe informed Dr. Raezer of these problems.

Observing that Mr. Doe had developed a post-circumcision chordee restriction, Dr. Raezer recommended a second procedure. Approximately two weeks after the second procedure, Mr. Doe developed an infection which caused the tearing wound to burst open. Dr. Raezer prescribed no antibiotics, but recommended four epsom salt baths per day. The wound did not heal and continued to tear and bleed. This pain and bleeding persisted for one year after the second procedure.

By performing this second procedure, known as a penoplasty, Dr. Raezer sought to release the chordee restriction. However, Mr. Doe discovered during surgery, skin from his testicle was attached to the head of his penis resulting in hair on the shaft. Although he can complete the act of intercourse, Mr. Doe achieves only minimal penetration and his sexual relationship with his wife is “quite hampered and diminished.” N.T. 8/30/93 at 91. Mr. Doe further testified that he felt he could not “perform” for his wife and was frustrated with the whole situation. Id. at 93.

By means of this lawsuit against David M. Raezer, M.D., Stanley H. Shrom, M.D. and Usurg Associates, Inc. (defendants), Mr. Doe sought damages for pain and suffering and Mrs. Doe petitioned for damages for loss of consortium. The jury found defendants Raezer and Usurg Associates liable and awarded one million, five hundred thousand dollars ($1,500,-000) to Mr. Doe, and seven hundred fifty thousand dollars ($750,000) to Mrs. Doe for loss of consortium. Defendants filed post-trial motions requesting a new trial, judgment n.o.v., or remittitur.

The matter was re-assigned to a different judge for determination of the post-trial motions. The post-trial motions judge granted defendants’ motion for remittitur for that portion of John Doe’s claim in excess of five hundred thousand dollars ($500,000), and for that portion of Jane Doe’s claim in excess of two hundred fifty thousand dollars ($250,000). In the alternative, the post-trial motions judge offered plaintiffs a new trial based upon the excessiveness of the verdict. Plaintiffs filed an appeal from the order of the post-trial court granting remittitur or a new trial. Defendants cross-appealed challenging the post-trial motions court’s denial of a new trial or judgment n.o.v.

In their appeal from the grant of remittitur or in the alternative, a new trial, plaintiffs raise the following issue for our review:

[Did the post-trial motions judge] err in substituting his judgment for that of the jury and the trial judge, dismissing the jury’s considered verdict as worthless, and ruling, on a “cold” reading of the transcript, that the verdict was excessive and that the plaintiff-husband should consent to a remittitur above the sum of $500,000.00 and the plaintiff-wife to a remittitur above the sum of $250,000.00, or suffer a new trial.

Defendants cross-appeal and raise the following question for our review:

Whether the trial court’s denial of the Motion for New Trial of defendant urological providers was error when: trial evidence demonstrated that plaintiffs’ expert testimony was so vague, conclusory and speculative as to be insufficient to sustain plaintiffs’ burden of presenting a prima facie case of negligence in the performance of circumcision and v-y plasty procedures; evidence demonstrated that husband-plaintiff gave his informed consent to surgery; the trial court improperly admitted expert evidence that the husband-plaintiff had a permanent penile condition; the trial court improperly allowed plaintiffs to cross-examine defendants’ medical expert on the issue of whether husband-plaintiff gave his informed consent; the trial court erred in admitting a photograph of husband-plaintiffs’ penis, which, in isolation, had no evidentiary value for the issues at bar and was more prejudicial than probative; the trial court allowed inadmissible hearsay evidence about husband-plaintiff’s prescriptions; the trial court improperly gave the jury an “increased risk of harm; instruction on causation?

We shall first address the issue raised by plaintiffs.

The plaintiffs in the instant case challenge the propriety of the post-trial motions court’s grant of remittitur or, in the alternative, a new trial. In this regard, plaintiffs contend the post-trial motions judge improperly substituted his judgment for that of the jury in ordering remittitur of the jury’s verdict or, in the alternative, a new trial. We agree.

Normally, the determination of the amount of damages that a person is to be awarded for pain and suffering, both past and future, is primarily a jury question. Stoughton v. Kinzey, 299 Pa.Super. 499, 502, 445 A.2d 1240, 1242 (1982). Judicial reduction of a jury award for compensatory damages is appropriate only when the award is plainly excessive and exorbitant in a particular case. Haines v. Raven Arms, 536 Pa. 452, 455, 640 A.2d 367, 369 (1994), supplemented by 539 Pa. 401, 652 A.2d 1280 (1995). The trial court may grant a request for remittitur only when a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption. Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 147, 622 A.2d 298, 312 (en banc), appeal denied, 535 Pa. 675, 636 A.2d 634 (1993).

“A remittitur should fix the highest amount any jury could properly award, giving due weight to all the evidence offered.” Cashdollar v. Mercy Hospital of Pittsburgh, 406 Pa.Super. 606, 618, 595 A.2d 70, 76 (1991). Therefore, the correct question on review is whether the award of damages “falls within the uncertain limits of fair and reasonable compensation or whether the verdict so shocks the sense of justice as to suggest that the jury was influenced by partiality, prejudice, mistake, or corruption.” Haines v. Raven Arms, supra (citing Carminati v. Philadelphia Transportation Co., 405 Pa. 500, 509, 176 A.2d 440, 445 (1962)). On appeal, the Superior Court is not free to substitute its judgment for that of the fact finder. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 166, 611 A.2d 1174, 1176 (1992). Rather, it is our task to determine whether the post-trial motions judge committed a “clear” or “gross” abuse of discretion when conducting its initial evaluation of a defendant’s request for remittitur. Id. at 165, 611 A.2d at 1176.

Similarly, a new trial may be granted on the grounds that the verdict is excessive and against the weight of the evidence only when the verdict “shocks the court’s sense of justice and makes a new trial imperative so that right may be given another opportunity to prevail.” Freeman v. Maple Point, 393 Pa.Super. 427, 436, 574 A.2d 684, 689 (1990). Generally, the duty of assessing damages is within the province of the jury. Little v. York County Earned Income Tax Bureau, 333 Pa.Super. 8, 23, 481 A.2d 1194, 1202 (1984). The grant of a new trial on the ground of excessiveness is peculiarly within the discretion of the trial court and this court will not disturb such an order unless the record discloses a clear abuse of discretion. Tonik v. Apex Garages, Inc., 442 Pa. 373, 378, 275 A.2d 296, 299 (1971); Christides v. Little, 274 Pa.Super. 343, 347, 418 A.2d 438, 440 (1980).

However, this does not mean we will not interfere or reverse such an order in a case where the trial court attempts to substitute its judgment for that of the jury as to what damages should be recovered. The duty of assessing damages is within the province of the jury and should not be interfered with by the court, unless it clearly appears that the amount awarded resulted from caprice, prejudice, partiality, corruption or some other improper influence.

Id. at 378, 275 A.2d at 299.

There are several factors which are relevant in determining whether a verdict is excessive:

(1) the severity of the injury, (2) whether plaintiffs injury is manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with employment, (5) the size of the plaintiffs out-of-pocket expenses, and (6) the amount plaintiff demanded in the original complaint.

Christides v. Little, 274 Pa.Super. at 348, 418 A.2d at 440. In determining that a verdict is “excessive,” a trial court is required to set forth the reasons for its conclusion. Haines v. Raven Arms, 536 Pa. at 456, 640 A.2d at 369, and supplemental opinion at 402 - 404, 652 A.2d at 1281-82. Moreover, if a trial court indicates that the reasons it gives for granting a new trial are the only basis for that decision, this court can only examine those reasons. McDermott v. Biddle, 436 Pa.Super. 94, 112-13, 647 A.2d 514, 523 (1994).

Here, the post-trial motions judge, upon a cold reading of the record, determined that the damage awards to Mr. and Mrs. Doe did not bear “a reasonable relation to the injuries” and were “excessive.” Id. at 5. In its opinion, the lower court cited the following reasons for its finding of excessiveness: (1) the fact that the Does have “resumed regular sexual relations, albeit somewhat reduced in pleasure”; (2) the fact that Mr. Doe can have intercourse without pain or bleeding; (3) consideration of “all of the circumstances in this case and jury verdicts in this jurisdiction for other, more serious and more permanent injuries”; and (4) the possibility that the jury may have confused the Does’ testimony regarding Mr. Doe’s pain and suffering following surgery for the condition as it now exists. We have reviewed each of these reasons cited by the post-trial motions judge. After reviewing the record, however, we cannot escape the conclusion that the post-trial motions court reevaluated the evidence presented at trial and improperly substituted its judgment for that of the jury in determining that the verdicts were “excessive.”

The post-trial motions court found that the Does had “resumed regular sexual relations, albeit somewhat reduced in pleasure.” Trial Court Opinion at page 2. Related to this determination, the aforesaid noted that Mr. Doe could have intercourse without pain or bleeding. Our review of the record, however, discloses problems much more serious than a sex life “somewhat reduced in pleasure.”

At trial, Mr. Doe testified that prior to the surgeries, he and his wife maintained a “very content,” and “very sharing” life. N.T. 8/30/93 at 94. When asked whether the sharing was also sexual, Mr. Doe responded: “In every manner. In every way.” Id. Mr. Doe explained the effect of his injury as follows:

Emotionally, I am embarrassed that I can’t perform for my wife; I can’t express — it’s one of the ways of expressing your love. The closeness that culminates with the sexual act, it’s just not there any more.
It’s a strain and it’s a problem. It makes me more angry than — I don’t know what else to say. I am frustrated with the whole situation.

N.T. 8/30/93 at 93. When asked how Mr. Doe’s quality of sex at the time of trial compared to what he and his wife enjoyed prior to surgery, Mr. Doe responded: “Nothing, nowhere, not even close to what we enjoyed prior to the surgery.” Id. at 174.

Mrs. Doe further elaborated on the impact of Mr. Doe’s injury to their sexual relationship:

Q. [Plaintiffs’ Counsel]: Now, after the November 11th surgery—
A. [Mrs. Doe]: Yeah.
Q. —was there any significant difference as compared to that period after the first surgery?
A. It was very minimal. There was just one — one position where he could — there was just one position where we could even try to have sex. It was hard. There was hardly anything there to penetrate, and he would bleed. He would get an erection, it would bleed and it was just terrible.
Q. Before the July 21st, 1987, surgery were you and your husband capable of having sex in more than one position?
A. Oh, of course.
Q. Were you restricted to any one position?
A. No.
Q. Could you have it in any position that you felt like at the moment?
A. Yes.
Q. Now, you’ve just told the folks on the jury that after the second surgery there was only one position—
A, That’s right.
Q. —that you can have sex?
A. Yes, that’s right.
Q. Would you mind telling us what that is?
A It’s on the edge of the bed. I can’t describe.
Q. When you say “the edge of the bed”, was it any particular portion of the bed?
A. Yeah, the corner of the bed. He just—
Q. And was there any penetration?
A. Very minimal. He can’t — because there’s just—
Q. How does that make you feel?
A. I feel very frustrated. I feel very sorry for him, because I know it hurts him.
Q. Have you said anything to him about that?
A. About not — about what, not being satisfied?
Q. Yes.
A. I don’t have to, we’ve been married for 35 years and I wouldn’t say that to him any way. He knows.
* * * * * *
[Mrs. Doe]: It’s not — it’s not very satisfactory. Our sex left [sic] isn’t satisfactory at all. What penis he has has all hair around it. I don’t know what else to tell you.
Q. With respect to you, [Mrs. Doe], whatever the anticipation, the lovemaking that occurred before July 21st, 1987, the spontaneity of that, has that type of lovemaking been affected in any way?
A. Of course. Of course. How — how—how can—
Q. Let me ask you this: Do you look forward to the sex act with your husband and lovemaking when you know what the end result is going to be?
A. No, I don’t. It’s very frustrating. And I feel very sorry for my husband because I see how it frustrates him.

N.T. 8/31/93 at 7-8, 9-10. Additionally, Mrs. Doe testified that after surgery, but prior to menopause, the act of putting on a condom presented its own difficulties. She testified that Mr. Doe “couldn’t put a condom on. The condom wouldn’t stay on. That was part of the problem, too.” Id. at 13. When questioned further, Mrs. Doe explained that “there was nothing [for the condom] to stay on to.” Id. Based upon the Does’ testimony, we find the lower court’s statement that the Doe’s sex life was “somewhat reduced in pleasure” to be a gross understatement of the evidence presented at trial.

The post-trial motions court also stated that it considered “all of the circumstances in this case and jury verdicts in this jurisdiction for other, more serious and more permanent injuries” in determining that the verdict was excessive. The lower court did not specifically cite which cases it reviewed in making this determination, nor did our independent research disclose cases involving similar injuries. However, the lower court provided additional insight in its denial of judgment n.o.v.: “[I]t is possible that the excessive verdict is because the jury thought that the pain which [Mr. Doe] and counsel described in vivid detail remained as a permanent condition.” Id. at 9. Once again, we are unable to find support in the record for this conclusion.

During cross-examination, Mr. Doe testified that he was able to achieve ejaculation “after ’89. After ’89, when the burning and bleeding stopped, and then the penetration was very limited.” N.T. 8/30/93 at 164 (emphasis added). Mrs. Doe also testified:

Q. [Plaintiffs’ Counsel]: Do you remember, looking back now over those unfortunate years, how long this bleeding when he would obtain an erection lasted? Over what period of time?
A. [Mrs. Doe]: It was well over a year, maybe two years that that would happen.
Q. And is there any bleeding today?
A. No.

N.T. 8/31/93 at 8-9. After reviewing the transcripts of the trial, we must conclude that the post-trial motions judge’s remarks were unfounded, but furthermore and most important, the jury was fully cognizant of the situation when it brought in its verdict.

The post-trial motions court’s rationale for its finding of excessiveness is perhaps best explained by the following passage from its opinion dated August 31, 1994:

It is difficult for a jury to objectively evaluate pain and suffering in any case, and particularly difficult in cases involving sexual injuries. They have little or no experience in translating pain and embarrassment into dollars, and are given little guidance by the Court’s charge. Therefore, it is appropriate for the Court to intercede when it is determined that the verdict is unreasonable and was influenced by sympathy or mistake.
Therefore, I have determined that this verdict is “shocking to my sense of justice” or is “shocking to the conscience.” What does it mean, shocking to the conscience? To look at it one way, if I was a juror, I could not vote for such a high verdict and be true to my conscience. Therefore, In this case since the verdict so exceeds my experience and anticipating, my surprise is the kind of “shocking” that is equivalent to “shocking the conscience.”

Post-trial Motions Court Opinion dated 8/31/94 at page 3 (emphasis added). This is an unfortunate narration of a strong personal opinion by the post-trial motions judge who did not oversee the trial, and whose opinion is not supported by the record. Because the record does not support the post-trial motions court’s stated reasons for granting remittitur or a new trial, we can only conclude that the post-trial motions court improperly substituted its own judgment for that of the jury. See Layman v. Doernte, 405 Pa. 355, 363, 175 A.2d 530, 534 (1961) (the large size of a verdict is in itself no evidence of excessiveness).

The jury, limited only by the prior stated exceptions, is the ultimate fact-finder and brings to its verdict its most valued asset and that is its composite experience regarding the problems involving the human travail as it applies to life in the community. This includes its understanding of the physical, mental and emotional disabilities that can adversely affect an otherwise normal relationship between husband and wife. The jury understands that a person’s whole physical, mental and emotional characteristics are constantly in delicate balance with each other. Injury to one by a directly related cause can bring about an imbalance in the other two characteristics.

In this case, Mr. Doe’s physical ability to enjoy sexual relations with his wife was an integral part of his physical and emotional welfare and his general health. The surgical procedures’ negative impact on this balance had an incalculable effect on the normal balance of these essential characteristics. It is this concomitant imbalance that imposed a dreadful and traumatic impact on the life of the family of Mr. and Mrs. Doe. Upon a careful review of the record, we find no evidence that the jury’s verdict was the result of partiality, prejudice, mistake or corruption, nor that it was so excessive as to shock this court’s sense of justice. The verdict was a clear mandate of the jury’s findings of a serious physical, mental and emotional injury inflicted upon Mr. and Mrs. Doe and thus represent an eminently fair result. Accordingly, we vacate that portion of the post-trial motion’ court’s order which granted remittitur or, in the alternative, a new trial and reinstate the jury’s verdict.

In their Counterstatement of the Questions involved, defendants argue that the trial court improperly refused to grant a new trial because: (a) The jury’s finding of a lack of informed consent is against the weight of the evidence; (b) plaintiffs’ expert testimony, which was without adequate basis in fact, is legally insufficient to establish a prima facie case of negligence in the performance of the circumcision and the v-y plasty procedures; (c) trial court improperly permitted plaintiffs to cross-examine defendant’s expert on the issue of whether Mr. Doe gave his informed consent to the procedure; (d) the trial court improperly admitted expert evidence that the plaintiff had a permanent penile condition; (e) the trial court improperly admitted a photograph of Mr. Doe’s penis; (f) the trial court improperly admitted hearsay evidence about Mr. Doe’s prescriptions; and (g) The trial court improperly issued a jury instruction regarding the “increased risk of harm.”

We have reviewed the parties’ briefs and the record certified to this court on appeal. The post-trial motions court correctly resolved issues (c), (d), (f) and (g) and found them to be without merit. We affirm on the basis of the post-trial motions court’s opinion dated August 31, 1994 with regard to each of these issues.

In Issue (a), defendants challenge the weight of the evidence supporting a finding of lack of informed consent. In this regard, defendants support their argument by pointing out that Dr. Raezer explained the risks of the procedure, and that Mr. Doe read and signed the consent form. In reviewing a claim that the verdict is against the weight of the evidence, it is well-settled that a new trial will be awarded only where the verdict is so contrary as to shock one’s sense of justice. Commonwealth v. Thompson, 538 Pa. 297, 315-16, 648 A.2d 315, 324 (1994); Giovanetti v. Johns-Manville Corp., 372 Pa.Super. 431, 439-41, 539 A.2d 871, 875 (1988).

At trial, Mr. Doe testified that prior to the first procedure, Dr. Raezer never informed him that the removal of too much foreskin could cause the organ to be shortened. N.T. 8/30/93 at 68. Mr. Doe admitted signing consent forms, but testified that Dr. Raezer failed to explain the risk related to the removal of the foreskin. Id. at 80. The fact that Mr. Doe’s penis was drastically reduced resulting in an abnormal physical condition is dramatic evidence of the serious risks involved with the procedure. There is no evidence that Mr. Doe would have agreed to the procedure had he known of these risks. Although Dr. Raezer contradicted Mr. Doe’s testimony at trial, we cannot state that the verdict is so against the weight of the evidence as to shock our collective conscience. Accordingly, we cannot grant defendants relief on this basis. See Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807, 812 (1984) (new trial should not be granted on a mere conflict in testimony).

Defendants next argue that the evidence is insufficient to sustain the jury’s verdict on the theory of negligence and therefore, request the grant of a new trial. However, a review of the certified record discloses that defendants’ post-trial motions do not include a request for a new trial on this basis. Defendants instead requested judgment notwithstanding the verdict based upon the legal insufficiency of the testimony by plaintiffs’ expert. In their appellate brief, defendants reframe their argument as a request for a new trial. Because defendants never preserved a claim for a new trial on this basis before the lower court, it is waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.

We have reviewed this record and find no error by the post-trial motions court in denying defendants’ motion for judgment n.o.v. The post-trial motions court correctly concluded that (1) the expert testimony provided by Dr. Varano was sufficient to support a finding of negligence in performing the circumcision; and (2) the testimony was sufficient to support a finding of negligence in failing to administer antibiotics which exacerbated the post-operative infection thereby causing further bleeding and pain at the operative site. As we stated earlier, the fact that the size of the penis was so drastically reduced and the resulting abnormal physical appearance dramatically evidences Dr. Raezer’s negligence in the performance of the circumcision. If defendants had challenged the post-trial motions court’s failure to grant a judgment n.o.v., we would affirm on the basis of the post-trial motions court’s opinion dated August 31, 1994 with regard to this issue.

In Issue (5), defendants argue that the trial court improperly admitted a photograph of the infected surgical wound at trial. We have carefully reviewed the contents of the certified record and are unable to find the photograph in question. It is well-settled that the Superior Court may only consider documents properly incorporated within the certified record. Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 412 n. 5, 595 A.2d 1211, 1215 n. 5 (1991). The certified record consists of the original papers and exhibits filed in the lower court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court. See Pa.R.AP., Rule 1921, 42 Pa.C.S.A. (Composition of record on appeal); Frank v. Frank, 402 Pa.Super. 458, 463 n. 5, 587 A.2d 340, 342-43 n. 5 (1991). “It is the obligation of the appellant to make sure that the record forwarded to an appellate court contains those documents necessary to allow a complete and judicious assessment of the issues raised on appeal.” Fiore v. Oakwood Plaza Shopping Center, Inc., 401 Pa.Super. 446, 460-61, 585 A.2d 1012, 1019 (1991).

In the interests of justice, however, this court contacted the trial court in an attempt to locate the wayward picture. Unfortunately, the trial court is also unable to locate the picture. “For purposes of appellate review, what is not of record does not exist.” Frank v. Frank, supra, 458, 587 A.2d 340. Because defendants did not include the contested photograph in the certified record, we are unable to address the merits of their contention.

The lower court’s order granting remittitur or a new trial is reversed. Case is remanded for entry of judgment on the jury’s verdict. Jurisdiction is relinquished.

      . With all due respect to the post-trial motions judge, whose competence we hold in highest esteem, it is nevertheless unfortunate that he did not oversee the trial but only reviewed the cold record during post-trial motions. We do note, however, that the trial judge wrote a letter to the post-trial motions judge in which he expressed his personal view regarding the excessiveness of the jury’s verdict:
      Given my status as being merely a Judge Pro Tempore, I doubt that I have the authority to file a dissenting opinion. However, while I agree with all of your rulings on Post-trial Motions in the case, I cannot agree that the verdicts were "excessive” in the legal sense. While the verdicts are very substantial, I believe that they are within the permissive parameters of a jury verdict, especially given the quality of the testimony given both by the individual Defendant and the Defendant's expert under cross-examination.
      Letter of Thomas B. Rutter, J.P.T., dated September 6, 1993.

      . Trial Court Opinion at 2.

      . Id. at 4.

      . Id. at 4.

      . Id. at 9.

      . Additionally, we note that Mr. Doe further testified that prior to the second procedure, Dr. Raezer did not inform him that after surgery, he might find hair on the shaft of the penis. Id. at 86.