text:
    Commonwealth v. Campos

      Richard Campos, pro se.

      William R. Toal III, for Commonwealth.

      January 25, 2011
   DOZOR,«/.,

NATURE AND HISTORY OF THE CASE

This is an appeal from this court’s denial of appellant’s third PCRA petition.

On May 28, 1993, appellant was arrested and charged with criminal homicide and other related charges stemming from the shooting and subsequent death of seventeen-(17) year-old David Viera. Appellant was fifteen (15) years old at the time. Appellant’s motion to transfer the matter to juvenile court was denied after a hearing held on April 7, 1994 in front of the Honorable A. Leo Serení of the Court of Common Pleas of Delaware County.

From August 29 to August 31, 1994, Honorable Judge Sereni presided over appellant’s jury trial. After reviewing all the evidence and testimony, the jury found appellant guilty of murder of the dirst degree and guilty of possessing instruments of a crime.

On October 18, 1994, the court sentenced appellant to a term of life imprisonment for the charge of first degree murder and a concurrent term of eleven and a half (11 1/2) months to twenty-three (23) months incarceration for the charge of possessing instruments of a crime.

Appellant filed an appeal to the Pennsylvania Superior Court alleging that (1) trial court erred in refusing to transfer the case to juvenile court; (2) evidence was insufficient to support the verdict of guilty of first degree murder; and (3) trial counsel was ineffective for failing to raise the defense of intoxication. On April 3, 1996, the Superior Court rejected appellant’s claims, and affirmed trial court’s judgment of sentence.

On September 25, 1996, the Pennsylvania Supreme Court per curium denied appellant’s petition seeking allowance to appeal lower court’s decision.

On August 10, 1998, appellant filed a pro se Post-Conviction Relief Act (“PCRA”) petition. The Honorable Judge Serení appointed Hugh Donaghue to assist appellant with his petition. Appellant filed an amended petition which asserted that trial counsel was ineffective for (1) failing to call a witness (Elvis Campos) regarding appellant’s demeanor prior to the shooting; (2) failing to pursue a diminished capacity defense; and (3) failing to pursue the claims regarding Elvis Campos. Appellant’s case was reassigned to the Honorable Joseph P. Cronin, Jr.

On September 23, 1999, the Honorable Judge Cronin held an evidentiary hearing regarding the timeliness of appellant’s PCRA petition. The commonwealth asserted that the PCRA petition was untimely filed, and that appellant had not met any of the statutorily recognized exceptions to the timeliness requirement of the Post Conviction Relief Act (PCRA). On September 27, 1999, the Honorable Judge Cronin signed an order dismissing appellant’s PCRA petition as untimely.

On April 13, 2003, appellant wrote a letter to the Delaware County public defender’s office requesting a copy of his entire file. On April 29,2003, appellant received a copy of his file from the public defender’s office.

On June 12, 2003, appellant filed a pro se PCRA petition. The matter remained open and unaddressed by the court for four years.

On September 12, 2007, appellant filed a writ of mandamus to the Pennsylvania Supreme Court seeking action on his pro se PCRA petition. On February 7, 2008, the Supreme Court granted appellant’s request for a writ of mandamus and ordered the Delaware County Court of Common Pleas to address appellant’s petition within sixty (60) days.

On May 30,2008, appellant’s case was assigned to this court, and on July 1, 2008 and July 14, 2008, this court appointed Scott D. Galloway, Esq. to assist appellant with his PCRA petition. On July 8, 2008, this court granted appellant’s petition for a continuance to file amended PCRA petition. Appellant submitted his amended pro se PCRA petition on June 18, 2008. On August 11, 2008, appellant, through his PCRA counsel filed an amended PCRA petition. On December 17, 2008, this court signed an order for notice of intent to dismiss the Post-Conviction Relief Act petition without hearing in twenty (20) Days. On January 8, 2009, appellant sent a pro se amended PCRA petition to this court. In an order dated January 29, 2009, this court dismissed appellant’s PCRA petition as untimely upon reviewing appellant’s pro se PCRA petition, PCRA counsel’s amended the PCRA petition, appellant’s pro se subsequent letter and amended petition, and upon independent review of the record and relevant case laws.

On February 17,2009, appellant filed a timely notice of appeal. On February 17, 2009, this court sent to appellate counsel an order to file a “concise statement of the matters complained of on appeal,” pursuant to Pa.R.A.P. 1925(b). On March 6, 2009, appellant’s attorney filed the concise statement of matters complained of on appeal, raising the following issues: (1) whether the trial court erred in determining that the appellant’s claims raised in his PCRA petition did not meet the timeliness exceptions pursuant to 42Pa.C.S.A. § 9545(b)(l)(i-iii)); (2) whether the trial court erred in not finding appellant’s trial counsel ineffective; (3) whether the trial court erred in dismissing appellant’s PCRA petition without an evidentiary hearing; and (4) whether the trial court erred in not allowing appellant’s nunc pro tunc petition after his first PCRA counsel failed to file an appeal on appellant’s behalf. On April 3, 2009, this court affirmed the findings of the trial court on all counts. The Superior Court affirmed this court’s decision on October 22, 2009. This court notes that on April 6, 2010, the Pennsylvania Supreme Court denied appellant’s petition for allowance of appeal.

On July 8,2010, appellant filed his third PCRA petition pro se based upon the recent United States Supreme Court decision in Graham v. Florida, 560 U.S._, 130 S.Ct. 2011(2010). On July 22, 2010, this court appointed Mr. Henry DiBenedetto Forest, Esq. as appellant’s PCRA Counsel in order to assist in this matter.

On October 22, 2010, appellant’s PCRA counsel petitioned to withdraw as counsel of record by filing a “no merit” letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1998). On October 27, 2010, this court signed an order for notice of intent to dismiss Post Conviction Relief Act petition without hearing in twenty (20) days. In an order dated November 24,2010, this court (1) dismissed appellant’s PCRA petition as untimely; and (2) granted PCRA counsel’s petition to withdraw as counsel of record, based upon review of appellant’s pro sc PCRA petition and upon independent review of the record and relevant case laws.

On December 13, 2010, appellant filed a notice of appeal. In response to this court’s Pa.R.A.P. 1925(b) request, appellant filed a pro se Pa.R.A.P. 1925(b) statement on December 23, 2010 raising the following issues on appeal:

1. Whether this court erred in determining that the appellant’s claims raised in his third PCRA petition did not meet exceptions pursuant to 42 §9545(b)(l)(i-iii).

2. Whether this court erred in dismissing appellant’s third PCRA petition for post-conviction relief and granting PCRA counsel’s application to withdraw his appearance.

3. Whether this court erred in dismissing appellant’s third PCRA petition without conducting an dvidentiary hearing.

4. Whether this court erred in finding that the holding of the United States Supreme Court in Graham v. Florida is only applicable to non-homicide juvenile offenders.

FACTS

On May 27,1993, appellant, David Viera and four other young men were gathered at a house to share a marijuana filled cigar, commonly referred to as a “blunt.” The house is located in the city of Chester, Delaware County.

Mr. Viera asked appellant to leave because there were too many people present to share the blunt. Appellant became angry because he had helped pay for the blunt, and started pushing Mr. Viera. After the physical altercation, appellant, still angry, said that he would be back and left. Appellant returned approximately five minutes later, and confronted Mr. Viera saying, “Push me again.” Appellant pulled out a .38 caliber handgun and shot Mr. Viera in the stomach. Mr. Viera turned and ran as appellant continued shooting him, striking Mr. Viera four more times. Appellant left the house and discarded the gun. Mr. Viera died of his wounds.

Appellant, accompanied by his mother, went to the Chester police station where he admitted to the shooting. Appellant’s statements, as well as eyewitness testimony were introduced at trial.

DISCUSSION

I. Appellant’s third PCRA petition was untimely filed, and does not meet any timeliness exceptions as prescribed by this commonwealth’s law.

Appellant argues that this court should honor his third PCRA petition, filed more than a year after his final verdict (appellant was found guilty on August 31, 1994, and sentenced on October 18, 1994) and more than thirty (30) days after his first PCRA petition was denied (September 27, 1999). Appellant alleges that his third PCRA petition should be honored pursuant to 42 Pa.C.S.A. section 9545(b)(2).

A. Appellant’s third PCRA petition was untimely filed.

The Superior Court has held that “any PCRA petition, including a second or subsequent petition, must be filed within one year of the date the judgment becomes final.” 42 Pa.C.S.A. Section 9545(b)(1); See also Commonwealth v. Alcorn, 703 A.2d 1054 (Pa. Super. 1997). A judgment of sentence becomes final at the conclusion of direct review or at the expiration of time for seeking the review. 42 Pa.C.S.A. Section 9545(b)(3). Judgment of sentence becomes final thirty (30) days after the entry of the order from which the appeal is taken. Pa.R.A.P. 903.

Here, appellant was found guilty of first degree murder and possessing an instrument of a crime on August 31, 1994, and was sentenced on October 18,1994. Appellant’s appeals were denied on April 3, 1996 and September 25, 1996 by the Superior Court and by the Supreme Court, respectively. Therefore, appellant’s sentence became final thirty (30) days thereafter on October 25, 1996. Appellant had one year after October 25, 1996 to file his PCRA petition. Appellant filed his first PCRA petition on August 10,1998, almost two years after October 25,1996. Appellant’s petition was denied as untimely on September 27, 1999. Appellant filed his second PCRA petition on June 12, 2003, almost seven years after October 25,1996, and almost four years after his first PCRA was denied as untimely. Appellant’s second PCRA petition was denied as untimely on January 29, 2009. On its face, appellant’s PCRA petitions were untimely filed. Appellant filed his third PCRA petition on July 8, 2010, more than thirteen years after October 25,1996, and more than ten years after his first PCRA was denied as untimely. This court finds that appellant’s third PCRA petition was untimely filed since it was filed more than one year after the judgment became final.

B. Appellant’s untimely PCRA petition does not meet any exceptions to the timeliness requirement

Since this court has determined appellant’s third PCRA petition is untimely on its face, this court must next determine whether the petition meets any of the timeliness exceptions pursuant to 42 Pa.C.S.A. Section 9545(b)(1) (i-iii). It is recognized that a PCRA petition may be filed outside of the one-year timeliness requirement if the petition meets one of the three exceptions to the timeliness requirement; however, a PCRA petition invoking one of the three timeliness exceptions must be filed within sixty (60) days of the date the claim could have been presented. 42 Pa.C.S.A. Section 9545(b)(2).

The three exceptions to the timeliness requirement are as follows: (i) the failure to raise the claim previously was the result of interference by government officials with the presentation of the claim in violation of the constitution or law of this commonwealth or the Constitution or the laws of the United States; (ii) the facts upon which the claim is predicated were unknown to the appellant and could not have been ascertained by the exercise of due diligence; or (iii) the right ascertained is a constitutional right that was recognized by the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively. 42 Pa.C.S.A. section 9545(b)(l)(i-iii). The term “government official” in 42 Pa.C.S.A. section 9545 (b) (1) (i), does not include defense counsel, whether that counsel was appointed or retained. See 42 Pa.C.S.A. section 9545 (b)(4).

In this case, appellant asserts a timeliness exception due to newly discovered evidence which was unknown to him until recently, that being the recently filed United States Supreme Court case of Graham v. Florida, 560 U.S._, 130 S.Ct. 2011 (decided May 17, 2010); 42 Pa.C.S.A. section 9545(b)(1)(ii)(iii). Appellant argues that this decision is the basis for his PCRA claim that he is entitled to a new sentence. This court notes appellant did in fact file his third PCRA petition on July 8, 2010, which was within sixty (60) days of the Graham decision, therefore appellant appears to satisfy the time requirements under 42 Pa.C.S.A. section 9545(b)(2).

Notwithstanding the fact appellant’s third PCRA petition was filed within sixty (60) days of the Graham decision, this court finds the decision to be inapplicable to appellant’s case sub judice. The Supreme Court in Graham determined that a sentence of life without parole imposed upon a non-homicide juvenile offender violates the Eighth Amendment’s proscription against cruel and unusual punishment. Graham v. Florida, 560 U.S._,_, 130 S.Ct. 2011, 2030 (2010) (emphasis added). Appellant improperly relies upon this recent precedent as a reason why this court should have declared that his sentence was invalid and illegal. This court notes that the United States Supreme Court clearly determines that the Graham holding only applies to non-homicide juvenile offenders. Although appellant was fifteen (15) years of age at the time of the offense, this court notes that appellant was convicted by a jury of first degree murder, a crime which is the most heinous of violent and homicidal offenses. Accordingly, this court finds that Graham is not applicable in appellant’s case since appellant was convicted of a homicidal offense. Therefore, this court correctly determined appellant failed to plead or prove a valid exception to the timeliness requirement under Pa.C.S.A. Section 9545(b)(l)(iii).

This court will not address other exceptions under 42 Pa.C.S.A. Section 9545(b)(l)(i) and (iii) since appellant failed to plead or prove any other exception to the timeliness requirement under the previously stated sections.

This court finds that appellant’s third PCRA petition was untimely filed, and does not meet any exceptions to the timeliness requirement.

II. Appellant’s third PCRA petition had no issues of arguable merit, thus appellant’s PCRA counsel’s application to withdraw as counsel of record was properly granted.

Appellant alleges this court erred in dismissing his third PCRA petition and in granting his PCRA counsel’s application to withdraw his appearance. This court notes for reasons already set forth in part I of this opinion, appellant’s third PCRA petition is without merit because (i) it was untimely filed and (2) it does not meet any exceptions to the timeliness requirement. Therefore, this court did not error in dismissing appellant’s third PCRA petition.

Regarding PCRA counsel’s application to withdraw, this court notes what is required of an attorney seeking withdraw is well settled under the laws of this commonwealth. In addition to making a formal application, a “no merit” letter must be filed, where the attorney is required to (1) detail the nature and extent of his review; (2) list each issue petitioner wishes to have reviewed by the court; and (3) explain why said issues are without merit. Pennsylvania v. Finley, 481 U.S. 551 (1987); Commonwealth v. Turner, 544 A.2d 927, 928-29 (Pa. 1988). This court notes appellant’s PCRA Counsel did in fact file a “no merit” letter on October 22, 2010, where counsel clearly demonstrated a thorough reading of appellant’s entire case file and all applicable law, notably the United States Supreme Court decision in Graham v. Florida. Counsel noted appellant’s argument that the recent Graham v. Florida should constitute a timeliness exception under Pa.C.S.A. Section 9545(b)(1). In his letter, appellant’s PCRA counsel clearly demonstrated to this court that the holding in Graham v. Florida is only applicable to non-homicide juvenile offenders. Considering appellant was convicted of first degree murder, his claim is without merit, as it has no basis under existing constitutional law.

Furthermore, this court notes PCRA counsel submitted to appellant a copy of his “no merit” letter and correctly informed him of the right to proceed pro se, or with the assistance of privately retained counsel in the event the application for withdraw was granted. This court finds it correctly determined PCRA counsel met his burden and complied with all requirements under the laws of this commonwealth, therefore was properly granted his application to withdraw as counsel of record. Commonwealth v. Friend, 896 A.2d 607 (Pa. Super. 2006).

III. Appellant’s third PCRA petition did not contain any genuine issues of material fact, therefore an evidentiary hearing is not necessary.

Appellant argues that this court should not have dismissed his third PCRA petition without an evidentiary Hearing, as is required by Pa.R.Crim.P. 908. In Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008), the Superior Court held that “there is no absolute right to an evidentiary hearing on a PCRA petition, and that if PCRA court can determine from the record that no genuine issues of material fact exist, then a hearing is not necessary.”

Appellant filed his first PCRA petition on August 10, 1998, almost two years after the final sentence. Appellant filed this second PCRA petition on June 12, 2003, almost four years after his initial PCRA petition was denied. Appellant’s second PCRA petition was denied as untimely on January 29, 2009. On its face, appellant’s PCRA petitions were untimely filed. This courts finds that on its face, appellant’s third PCRA petition was untimely filed, therefore there was no need for an evidentiary hearing.

Appellant asserts that this court should excuse the untimeliness of his PCRA petition due to the newly discovered evidence doctrine of the timeliness requirement. The evidence upon which appellant based his claim was the aforementioned United States Supreme Court holding in Graham v. Florida. For all the reasons set forth in this opinion, this court finds that the Graham holding is inapplicable to appellant due to the fact he was convicted of first degree murder, the most heinous and violent of all homicidal offenses. This court finds that appellant did not meet the any exception to the timeliness requirement. Therefore, this court did not error in finding that an evidentiary hearing was not necessary because, based on the record, there was no issue of genuine material fact since appellant’s PCRA petition was untimely filed, and petition did not prove any exceptions to the timely requirements.

IV. Appellant’s contention that the United States Supreme Court’s holding in Graham v. Florida should include all juvenile offenders, regardless of what crime they have committed, is wholly without merit.

Appellant argues that this court erred in interpreting the United States Supreme Court’s holding in Graham v. Florida to be applicable solely to non-homicide juvenile offenders. This court finds appellant’s contentions to be wholly without merit. In its holding, the United States Supreme Court is perfectly clear, stating “This court now holds that for a juvenile offender who did not commit homicide the Eight Amendment forbids the sentence of life without parole.” Graham v. Florida, 560 U.S._,_, 130 S.Ct. 2011, 2030 (2010) (emphasis added). The court goes on to explain those who are below the age of eighteen (18) when they committed a crime “may not be sentenced to life without parole for a nonhomicide crime.” Id. (emphasis added), citing Roper v. Simmons, 543 U.S. 551, 574 (2005). It is clear to this court that the Supreme Court’s holding is only applicable to those juvenile defendants guilty of non-homicide offenses. Appellant, once again, was convicted of first degree murder, the most violent and heinous of all homicidal offenses. This court finds it did not error in finding that the Graham holding is inapplicable to appellant, thus his argument is wholly without merit.

CONCLUSION

For all of the foregoing reasons, the trial’s judgment denying petition for post conviction collateral relief should be afiirmed.

      . 18 Pa.C.S.A. §2501(a).

      . 18 Pa.C.S.A. §2501(a).

      . 18 Pa.C.S.A. §907(b).

      . This court notes that the original appointed PCRA counsel wit - drew his appearance due to a conflict of interest and the PCRA court appointed Hugh Donaghue, Esquire.

      . On May 30, 2008, this court appointed Dennis W. McNamara, Jr. Esq. to assist appellant with his PCRA petition. However, Mr. McNamara later withdrew his appearance necessitating the appointment of Scott D. Galloway.


source: Caselaw Access Project

author: FORD, J.,

license: Public Domain

text:
    Morales v. Smith

      David Vaida, for plaintiff

      Melissa P. Rudas, for defendant.
    February 8, 2011
   FORD, J.,

Plaintiff, Nelson Morales (father), and defendant, Sha-Kirra Smith (mother), have a six-year-old daughter, Elyce Morales. After the parties’ separation, father filed a complaint for custody on March 11, 2009, because father and mother could not resolve their custody differences. Through mediation, they came to an agreement. That was made an order of court on May 13, 2009.

As the months passed, custody difficulties developed. Mother decided that she wanted to relocate to South Carolina with the child. That caused her to file “notice of intention to relocate” on September 9, 2010. On the same day, she filed a petition for modification asking the court for permission to relocate to South Carolina.

A conference was held with the custody master. Father made it clear at the conference that he opposes mother’s petition for modification, particularly her effort to relocate to South Carolina. A hearing was conducted on the petition for modification on January 18, 2011. After consideration of the testimony presented at the January 18 hearing, the court concludes that it is in the best interests of Elyce to allow mother to relocate with her to South Carolina. In the order that is entered on this petition, father is also granted meaningful custody rights.

FINDINGS OF FACT

1. The parties’ daughter, Elyce Morales, was born on March 27, 2004. She is six years old. She is in the first grade at Ritter Elementary School in Allentown and is doing well in school.

2. Mother and father had a relationship for several years. Although their relationship ended in 2006, father has stayed at mother’s residence a few times since then. They were never married to each other.

3. Mother is 31 years old. She presently lives at 1205 East Mark Street in Allentown, Lehigh County. She has lived there for almost four years. She resides there with Elyce, her 10-year-old son, Josh (from another relationship), and her boyfriend, Alonzo Rice.

4. Mother shares equal physical custody with Josh’s father.

5.Mother has been employed at Walgreen’s Distribution Center for almost twelve years. She works the 6:00 a.m. to 2 p.m. shift, Monday through Friday. This is a physically demanding job for mother in that it entails constant lifting and bending. Mother has had back problems. She has had surgery on her feet. Also, she has completed the general curriculum courses at a community college which could lead to a nursing degree.

6. Father presently resides at 5061/2 Allen Street, Allentown, Lehigh County. Fie lives there with Daisy Morales whom he married on August 6, 2010. Ms. Morales’s son, daughter, Ruby, and Ruby’s child also live in that residence. The residence has five bedrooms. Father also has a 19-year-old son who does not live with him. For a period of time, father was estranged from his son but that relationship was reestablished approximately six years ago.

7. For the past three months, father has worked as a poker dealer at Sands Casino. He works shifts beginning at 7:00 p.m. until the following morning with quitting time between 5:00 a.m. and 11:00 a.m. depending upon business during the shift. He has had previous employment at Americold for almost four years and at Walgreen’s for almost seven years but the dates of the employment are not known. He also took some courses at a community college.

8. In 2006, the parties separated after they sold a house in which they lived together. From then until the present, mother has had stable housing. From that separation until October 2009, father did not have stable housing. He primarily lived at the Royal Motel on Airport Road in Allentown. Other places where he has stayed were his brother’s home, an apartment in Allentown and, on a few occasions, at mother’s residence.

When Elyce visited him during the period between 2006 and 2009, Elyce often did not have her own bed and slept in the bed with father. Father’s residence situation stabilized when he met his present wife and began staying at her home on Allen Street.

9. For the first two years of Elyce’s life, father was an involved and responsible parent in every respect. This was during the period of time that he owned the home with mother. From the selling of that home in 2006 until October 12, 2010, father irregularly visited Elyce. His sporadic contacts with his child averaged approximately two times per month. There was one occasion when father did not see Elyce for about three months.

10. Even though father was granted custody of Elyce for several days each week in the agreed order of May 13, 2009, he continued to infrequently see her.

11. Father offered mother unbelievable excuses for not visiting Elyce regularly. His usual excuses were that he had to work or that he had to be in New Jersey or New York. There were occasions when father promised that he would visit Elyce at specific times. Mother prepared Elyce for the visits, including packing a bag for her to go. Father disappointed Elyce, who waited with backpack on, by not appearing for the visits as he promised.

12. Father did not exercise custody with Elyce on Christmas day 2010, or New Year’s day 2011, despite a court order granting him custody on those days. The excuses he gave in court for missing those days were unconvincing. He missed his daughter’s Christmas show this year.

13. Except for Christmas and New Year’s, father has exercised the custody granted to him by court order since October 12, 2010, to the date of hearing.

14. Father does not have a driver’s license. Before October of 2010, mother provided most of the transportation for father’s visits with Elyce. When father began to regularly exercise custody in October of 2010, he had a number of other people dropping off and picking up Elyce because he did not have a driver’s license. Father did not accompany these people in transporting Elyce. Mother did not know these people. Since October, father’s wife has often driven Elyce to and from her school.

15. Father has not attended parent-teacher conferences, open houses or, with the exception of an event involving Elyce at Dieruff High School, any other school events. He has not taken Elyce to doctor or dentist appointments or been involved in her healthcare in any way. Mother has done all of these. Even though the May 13,2009 order made him a joint legal custodian, he blames his non-involvement on mother’s not telling him about appointments and events.

16. Father’s mother resides in Puerto Rico. His father is deceased. Father has two brothers who reside in Pennsylvania.

17. Mother’s father, mother, a brother, a sister, and two nieces reside together in a residence in Columbia, South Carolina. Mother has aunts, uncles, and cousins who reside in the Pocono Mountains area of Pennsylvania. While mother has a good relationship with these relatives in Pennsylvania, they are not residential resources for her.

18. Mother’s plan is to immediately relocate to South Carolina with Elyce, her son, and her boyfriend, and to reside in her parents’ home. She wants to enroll in a nursing school in South Carolina and secure her degree. She has investigated nursing schools in South Carolina. Her curriculum would involve full-time nursing studies so mother would be unable to simultaneously work a full-time job. Nevertheless, she would be able to spend more time with her children. She would not attend school in the summers. Her parents have agreed to assist her with baby sitting and payment of her bills. Mother would not be charged rent to reside with her parents. Mother’s boyfriend, Mr. Rice, agrees with mother’s plan. He intends to move to South Carolina with mother, leave his present employment, and secure employment in South Carolina. (Mr. Rice did not testify at the hearing but was present in the courtroom when Mother testified.)

19. In South Carolina, mother would no longer have to perform physical labor to the extent that she presently performs it at Walgreen’s which is taking its toll on her body, particularly her back.

20. Mother has investigated the school district for Columbia, South Carolina.

21. Josh’s father agrees with mother’s relocation to South Carolina. He and mother have reached an agreement that Josh would finish the present school year in Pennsylvania, then stay with his father over the summer of 2011, live with mother for subsequent school years in South Carolina and then live with his father each summer.

22. The parties have an inability to communicate effectively. They only communicate by text.

23. Mother proposes that father have custodial time with Elyce summers, Christmas breaks, and any other school breaks. Mother is also agreeable to father’s visiting Elyce on any visits father can make to South Carolina.

24. Father opposes mother’s planned relocation to South Carolina because he would like to be meaningfully involved in his child’s upbringing. He has the fear that the inability to have regular contact with Elyce because of the distance in miles between his and mother’s homes would relegate him to the role of part-time father.

DISCUSSION AND CONCLUSIONS OF LAW

The “ultimate guidepost” in a child custody case, including a relocation dispute, is the child’s best interests. Meyer-Liedtke v. Liedtke, 762 A.2d 1111, 1115 (Pa. Super. 2000); McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). The focus must be on what is in the best interests of the minor child, Elyce, and not what is best for the parents. English v. English, 469 A.2d 270, 273 (Pa. Super. 1983). In my attempt to determine the best interests of Elyce, I considered “all factors which legitimately impact upon the child’s physical, intellectual, moral and spiritual well-being....” Zummo v. Zummo, 574 A.2d 1130, 1137 (Pa. Super. 1990).

Although the child’s best interests remain the ultimate guidepost, the Superior Court has adopted a three-pronged test to assist in resolving custody relocation disputes. In Gruber v. Gruber, 583 A.2d 434 (Pa. Super. 1990), the Superior Court held that the following three factors should be given special consideration in a relocation dispute:

(1) the potential advantages of the proposed move and the likelihood that the move would substantially improve the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent;
(2) the integrity of the motives of both the custodial and the non-custodial parent in either seeking the move or seeking to prevent it; and
(3) the availability of realistic, substitute visitation arrangements which will adequately foster an ongoing relationship between the child and the non-custodial parent. Id. at 184-85, 583 A.2d at 439.

In applying the Gruber test, a court must seek to accommodate the following interests as nearly as possible:

[T]he custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the noncustodial parent in sharing in the love and rearing of his or her children; and, finally the state’s interest in protecting the best interests of the children. Id. at 184, 583 A.2d at 438-39.

Mother argued at the hearing that she has satisfied each Gruber factor and that it is in Elyce’s best interests to relocate with her to South Carolina. 1 agree.

Many circumstances make mother’s situation in Pennsylvania difficult for her and, consequently, difficult for Elyce. Mother has responsibly maintained employment at Walgreen’s for years but this has taken a toll on her body in terms of foot and back problems. She testified that it is extremely difficult for her to continue this work. She has completed a good portion of her studies to establishing a new career in nursing which she believes will be personally fulfilling, less demanding physically, and more financially beneficial. Father does not contest mother’s sincerity about becoming a nurse.

It is true that the Lehigh Valley has several fine institutions to train individuals to become nurses. With mother’s financial needs and her childcare obligations, she cannot presently maintain full-time employment, engage in full-time nursing education, and be the primary custodian for Elyce. She needs a support system.

Father argued at the hearing that, with his assistance, mother can achieve her goals. History proves otherwise. Except for the first two years of Elyce’s life, and the last three or four months, father has been only an occasional presence in Elyce’s life. Even as to the months since October of 2010, father failed to see his child on Christmas, New Year’s, and failed to attend her Christmas show. Mother describes father’s involvement with Elyce as “unreliable.” This is accurate. Over a course of years, he has seen the child only a few times per month and actually “stood up” the child when he promised that he would be coming for visitation. For a period of three months, he had no contact with her at all. Tellingly, he blames the three month absence on mother’s refusal to respond to him. While mother may have been unresponsive to father at times, mother would have welcomed his contact with Elyce more than two times per month and certainly at many points over his three month absence from Elyce’s life. Father was unbelievable as to all of the excuses he offered for the failure to be in contact with Elyce. In reality, the failure was based upon lack of interest, unstable housing, and improper priorities.

There are significant advantages to mother’s move to South Carolina. She has demonstrated that the move will substantially improve the quality of life for her and Elyce. Her expenses will be immediately reduced in that she will be permitted to live rent-free in her parents’ home. Her parents will assist with all bills. Childcare is fully available for mother from her parents and her adult siblings. Because her parents will provide a home for her, mother will be able to pursue her nursing studies full-time, something that she cannot do in Pennsylvania. She and Elyce will be relieved of father’s lack of dependability. (Father made a general allegation that mother was irresponsible because she often went to clubs. No detail was provided so the court cannot make a determination whether this is true.)

The move to South Carolina is not the result of a momentary whim by mother. Circumstances have been deteriorating in terms of sharing parental duties and the need to make a significant change has culminated in this plan by mother. From everything presented, Elyce will benefit from the move because stability in terms of care for her will be ensured, the economic necessities will be provided and a positive emotional environment will exist.

As to the second Gruber prong, mother has established the integrity of her motives in seeking the move to South Carolina. She wants to eliminate the instability in her life created by father’s lack of attention to what he should do as a father. She wants to continue on a course, already begun, toward a nursing degree for employment that she thinks will be physically less demanding and financially beneficial to her and her child. Mother has convinced the court that she wants father involved in Elyce’s life and, for the most part, has promoted the father-daughter relationship. Because father has not consistently assisted in her efforts to do that, she properly sees the move to South Carolina as the only workable alternative. Thus, mother has established proper motives in asking for relocation.

In addressing this second prong, it provides the court the opportunity to note that there is no doubt that father loves Elyce. In fact, his reason for resisting the move is that he is concerned he will be relegated to the position of a part-time father and will miss important milestones in Elyce’s life as she moves through childhood. He is not resisting the move to simply frustrate mother. He genuinely wants to have a close relationship with his child. Although father has probably always wanted these things, his actions have not meshed with his intentions. So, while his motives are proper, he has not measured up to what a father should do in the raising of his child. Incidentally, the provision of separate custody time for father in Pennsylvania while mother resides in South Carolina will serve to enhance father’s dependability with Elyce. He will not be able to take mother for granted. Pie will have to be present for Elyce to provide all aspects of care for her.

As to the third prong, the court has fashioned a schedule for father that is a realistic visitation arrangement. If father exercises all of the custody time given to him under today’s order, he will be spending more time with Elyce each year than he did for the period of the parties’ separation from 2006 until October of2010. Partial custody has been setup for father in such a way that he sees Elyce throughout the year, namely, the entire the summer, most of the Christmas vacation, and then one week of custody in the fall and one week of custody in the spring. In addition to that, father is at liberty to travel to South Carolina any time to spend time with Elyce. The order creates a situation whereby the father-daughter relationship can proceed evenly and become strong.

For all of these reasons, it is in Elyce’s best interests that mother be permitted to relocate with her to Columbia, South Carolina and that father be granted the partial custody detailed in today’s order.