2005 June

COMMONWEALTH OF PENNSYLVANIA v. VICTOR D. THOMAS No. 2276 WDA 2003 2005 PA Super 245 Filed: 6/30/2005
	Appeal from the Order entered November 20, 2003 In the Court of Common Pleas of Blair County, Criminal Division at Nos. 2001-1021 & 2001-968.
Before: ORIE MELVIN, BENDER and BECK, JJ.
Opinion by: BECK, J.
We decide, inter alia, the standards to be applied by the trial court in determining that a defendant has forfeited his right to counsel. Appellant Thomas contends that his convictions for assault and related charges were improper because, inter alia, of violations of his right to counsel at trial and his right to be present at trial. Finding that appellant forfeited his right to counsel and that he waived his right to be present at trial, we affirm. However, we remand for re-sentencing, because the trial court failed to merge appellant’s convictions for simple assault and recklessly endangering another person and also failed to assess appellant’s ability to pay before imposing fines.

BETH O’HARA v. THOMAS C. RANDALL, M.D., GENESIS BOWEN, M.D., PATRICIA MUTHAURA, M.D., PENNSYLVANIA HOSPITAL, RONALD RICHTERMAN, M.D., STEVEN RINEHOUSE, M.D., WYOMING VALLEY HEALTHCARE SYSTEMS, INC., RON KONECKE, M.D., CENTER FOR DIAGNOSTIC IMAGING, AKRAM ZALATIMO, M.D., CHARLES BURNS, JR., M.D., BURNS, RUMBAUGH, CARLISLE & RITTENBERG UROLOGIC ASSOCIATES, EDWARD CAREY, M.D., MINDA BERMUDEZ, M.D., AND VALLEY OPEN MRI & DIAGNOSTIC CENTER, APPEAL OF: RONALD RICHTERMAN, M.D. (at 1722) APPEAL OF: EDWARD J. CAREY, M.D (at1895) APPEAL OF: AKRAM ZALATIMO, M.D. (at 1897) APPEAL OF: MINDA BERMUDEZ, M.D., CHARLES BURNS, JR., M.D., VALLEY OPEN MRI & DIAGNOSTIC CENTER AND BURNS, RUMBAUGH, CARLISLE & RITTENBERG UROLOGIC ASSOCIATES (at 1920) No. 1722, 1895, 1897 & 1920 EDA 2004 2005 PA Super 242 Filed: 6/30/2005
	Appeal from the Order of April 26, 2004, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 2124, October Term, 2003.
Before: LALLY-GREEN, BOWES AND KELLY, JJ.
Opinion by: BOWES, J.
Dr. Ronald Richterman, Dr. Edward Carey, Dr. Akram Zalatimo, Dr. Minda Bermudez, Valley Open MRI & Diagnostic Center ("Valley MRI"), Burns, Rumbaugh, Carlisle & Rittenberg Urologic Associates ("Urologic Associates"), and Dr. Charles Burns, Jr. (collectively "Appellants") challenge orders vacating judgments of non pros entered in this medical malpractice action for failure to file certificates of merit in accordance with Pa.R.C.P. 1042.3(a). Upon review, we vacate and remand with instructions.

COMMONWEALTH OF PENNSYLVANIA v. GREGORY DELONG No. 1396 MDA 2004 2005 PA Super 243 Filed: 6/30/2005
	Appeal from the Order August 30, 2004 In the Court of Common Pleas of Berks County Criminal at No.: 4564/02
Before: STEVENS, BOWES, and McCAFFERY, JJ.
Opinion by: STEVENS, J.
This is an interlocutory appeal as of right from the order entered by the Court of Common Pleas of Berks County, which denied Appellant’s motion to dismiss Possession With the Intent to Deliver (PWID) and Delivery of Methamphetamine charges on grounds of double jeopardy, collateral estoppel, and autrefois acquit. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. MARK WHITAKER No. 956 EDA 2004 2005 PA Super 241 Filed: 6/30/2005
	Appeal from the Judgment of Sentence October 29, 2003, In the Court of Common Pleas of Philadelphia County, Criminal Division at CP # 02-04-1379.
Before: *TODD, MONTEMURO and POPOVICH, JJ.**
Opinion by: POPOVICH, J.
Appellant Mark Whitaker appeals the judgment of sentence entered on October 29, 2003, in the Court of Common Pleas of Philadelphia County. Appellant was sentenced to life imprisonment following his conviction on charges of second-degree murder, robbery, criminal conspiracy, and related offenses. On appeal, Appellant asserts that the trial court abused its discretion in its admission of certain testimony and that trial counsel was ineffective. Upon review, we affirm.

MARY YEE v. WILLIAM W. ROBERTS, III, D.M.D., AND ROBERTS & DeMARSCHE No. 3194 EDA 2004 2005 PA Super 240 Filed: 6/29/2005
	Appeal from the Order entered July 27, 2004, In the Court of Common Pleas of Philadelphia County, Civil, No. 03417 February Term, 2004
Before: LALLY-GREEN, PANELLA, JJ., and McEWEN, P.J.E.
Opinion by: McEWEN, P.J.E.
This appeal has been taken from the order which denied the petition of appellant, Mary Yee, to open the judgment of non pros that had been entered against her, pursuant to Pa.R.C.P. 1042.6, upon the praecipe of appellees, William W. Roberts, III, D.M.D., and the partnership of Roberts and DeMarsche, due to her failure to timely file a certificate of merit. We affirm.

MARGARET B. FORD AND MARGARET L. FORD, INDIVIDUALS AND SHAREHOLDERS OF RIVERVIEW GOLF COURSE, INC., AND ON BEHALF OF RIVERVIEW GOLF COURSE, INC., AND OTHER SHAREHOLDERS OF THE CORPORATION v. WILLIAM K. FORD, INDIVIDUALLY AND AS PRESIDENT OF RIVERVIEW GOLF COURSE, INC., AND RIVERVIEW GOLF COURSE, A CORPORATION No. 1164 WDA 2004 2005 PA Super 237 Filed: 6/29/2005
	Appeal from the Order entered on June 7, 2004, in the Court of Common Pleas of Allegheny County, Civil Division, at No. GD 99-19519.
Before: FORD ELLIOTT, MUSMANNO, and LALLY-GREEN, JJ.
Opinion by: LALLY-GREEN, J.
Appellants, William K. Ford (“Bill”), individually and as president of Riverview Golf Course, Inc., and Riverview Golf Course, a closely held corporation ("Riverview" or "the corporation"), appeal from the order entered on June 7, 2004. The trial court found that Bill acted oppressively toward minority shareholders by engaging in self-dealing and by excluding the minority from any benefits of Riverview. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. ROBERT WALKER No. 1851 EDA 2004 2005 PA Super 238 Filed: 6/29/2005
	Appeal from the Judgment of Sentence Entered January 28, 2004 In the Court of Common Pleas of Philadelphia County Criminal Division at No. CP#0208-0040 1/1
Before: ORIE MELVIN, BENDER and BECK, JJ.
Opinion by: BENDER, J.
This is a direct appeal from a judgment of sentence imposed against Robert Walker ("Appellant") after he was convicted in a jury trial of rape, indecent assault, and corrupting the morals of a minor. On appeal, Appellant raises a single issue, asserting that the jury’s verdict was against the weight of the evidence. Appellant’s brief at 6. Because we find the present appeal untimely, we quash.

WENTZEL-APPLEWOOD JOINT VENTURE v. 801 MARKET STREET ASSOCIATES, LP, A/K/A 801 MARKET STREET HOLDINGS, LLC, CITIZENS BANK, ITEM PROCESSING CENTER AND PREFERRED REAL ESTATE INVESTMENTS, INC. No. 2586 EDA 2004 2005 PA Super 239 Filed: 6/29/2005
	Appeal from the order entered August 26, 2004, in the Court of Common Pleas, Philadelphia County, Civil, May Term, 2003, No. M0004
Before: TODD, KELLY, JJ., and McEWEN, P.J.E.
Opinion by: PER CURIAM
Appellant, Wentzel-Applewood Joint Venture, has taken this appeal from the order entered in this mechanics’ lien action and dismissing appellant’s claim with prejudice in response to the preliminary objections filed by appellees, 801 Market Street Associates, LP, a/k/a 801 Market Street Holdings, LLC, Citizens Bank, Item Processing Center and Preferred Real Estate Investments, Inc. We affirm.

UNIVERSAL TELESERVICES ARIZONA, LLC, A FLORIDA LIMITED LIABILITY COMPANY, THE DEVELOPMENT CENTER, LLC, A FLORIDA LIMITED LIABILITY COMPANY AND JOANNE RUSSELL v. ZURICH AMERICAN INSURANCE COMPANY, A NEW YORK CORPORATION, AND COLLEGEVILLE FINANCIAL GROUP, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY APPEAL OF: UNIVERSAL TELESERVICES ARIZONA, LLC, THE DEVELOPMENT CENTER, LLC AND JOANNE RUSSELL No. 2055 EDA 2004 2005 PA Super 234 Filed: 6/27/2005
	Appeal from the Order entered May 26, 2004 In the Court of Common Pleas of Philadelphia County, Civil No. 0211-01670 November Term, 2002
Before: *KLEIN, PANELLA and MONTEMURO, JJ.**
Opinion by: KLEIN, J.
Plaintiff-Appellants Universal Teleservices Arizona, LLC (UTA), the Development Center, LLC (TDC) and Joanne Russell (collectively, “Plaintiffs”) appeal from a decision of the distinguished Philadelphia trial judge Gene D. Cohen granting summary judgment in favor of Defendant-Appellee Zurich American Insurance Company (Zurich) and denying Plaintiffs’ summary judgment motion against Plaintiffs. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. KEVIN E. GEORGE No. 2842 EDA 2003 2005 PA Super 233 Filed: 6/27/2005
	Appeal from the Judgment of Sentence March 9, 2004 In the Court of Common Pleas of Philadelphia County, Criminal Division at No. 9912-0229 1/1.
Before: KLEIN, McCAFFERY and BECK, JJ.
Opinion by: BECK, J.
After a bench trial, appellant Kevin George was found guilty of violating 18 Pa.C.S.A. § 4116(d) (related to trafficking in unauthorized copies of recorded devices) and 18 Pa.C.S.A. § 4119 (related to trafficking in items bearing counterfeit marks).

FOREST HIGHLANDS COMMUNITY ASSOCIATION v. NANCY HAMMER No. 1214 WDA 2004 Petition for Reargument Denied 10/7/2005 Filed: 6/27/2005
	Appeal from the Order June 9, 2004, In the Court of Common Pleas of Allegheny County, Civil Division at No. GD-03-007673.
Before: HUDOCK, POPOVICH and JOHNSON, JJ.
Opinion by: POPOVICH, J.
Appellant Nancy Hammer appeals the order denying her petition to open and/or strike judgment entered in favor of Appellee Forest Highlands Community Association. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. MARCUS LLOYD No. 2907 EDA 2003 2005 PA Super 236 Filed: 6/27/2005
	Appeal from the Judgment of Sentence of August 20, 2003, In the Court of Common Pleas PHILADELPHIA County Criminal Division Nos. 98-05-0198 2/2, 98-05-0199 2/2
Before: BENDER, McCAFFERY, and POPOVICH, JJ.
Opinion by: McCAFFERY, J.
Appellant, Marcus Lloyd, appeals from a judgment of sentence entered in the Philadelphia County Court of Common Pleas after a jury found him guilty of two counts of murder in the first degree, one count each of robbery and criminal conspiracy, and sentenced him to death. As a result of his first appeal directly to the Pennsylvania Supreme Court challenging the imposition of his death sentences, Appellant was resentenced to consecutive life sentences. Now, Appellant specifically asks us to determine whether there was sufficient evidence to sustain a first degree murder conviction when Appellant had not been physically present at the time of the murder, and whether the trial court erred in failing to make record findings of fact to support its denial of Appellant’s motion for a new trial. Finally, Appellant asks us to determine whether two consecutive life sentences constitute a harsher sentence than two concurrent death sentences, which the sentencing court imposed in what Appellant characterizes as error. Upon careful review of the record and having given due consideration to Appellant’s arguments, we hold that the trial court acted properly in the challenged instances and the sentencing court did not err. Thus, we affirm.

MICHELLE KENSE v. KENNETH R. KENSEY No. 3002 EDA 2003 2005 PA Super 232 Filed: 6/24/2005
	Appeal from the Order entered September 3, 2003 in the Court of Common Pleas of Chester County, Domestic Relations Division, at No. 02-05441.
Before: DEL SOLE, P.J., ORIE MELVIN and KLEIN, JJ.
Opinion by: ORIE MELVIN, J.
Appellant, Michelle Kensey (Wife), appeals from the trial court’s order finding her Antenuptial Agreement with Kenneth Kensey (Husband) enforceable. After review of Wife’s petition for permission to appeal, we decline to exercise our prerogative review, quash the direct appeal and remand.

DEBRA WOMACK v. KATHERINE CROWLEY AND KIMBERLY DEVINE No. 3650 EDA 2003 2005 PA Super 230 Filed: 6/22/2005
	Appeal from the Order entered October 29, 2003, in the Court of Common Pleas of Philadelphia County, Civil, at No. May Term, 2002, No. 2451.
Before: HUDOCK, TODD and BECK, JJ.
Opinion by: HUDOCK, J.
Katherine Crowley and Kimberly Devine (Crowley and Devine) appeal from the order granting Debra Womack’s (Womack) motion for a new trial limited to damages. For the reasons that follow, we affirm.

CAROL L. RICKS, ADMINISTRATOR OF THE ESTATE OF THOMAS E. DAVIS, DECEASED v. NATIONWIDE INSURANCE COMPANY No. 1454 EDA 2004 and 1499 EDA 2004 Petition for Reargument Denied 8/19/2005 Filed: 6/22/2005
	Appeal from the Judgment entered July 8, 2004 In the Court of Common Pleas of Philadelphia County, Civil Division at October Term, 2001, No. 3840 and January Term, 2004, No. 3706.
Before: HUDOCK, TODD and BECK, JJ.
Opinion by: BECK, J.
We decide whether the Motor Vehicle Financial Responsibility Law (MVFRL) prohibits an injured motorist from pleading, proving and recovering the amount of benefits he received from his employer’s workers’ compensation carrier in a subsequent arbitration proceeding where he seeks to recover additional benefits under his own personal uninsured motorist (UM) insurance policy.

JAMES HARRIS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF DIMETRIUS STRATTON v. KENNETH NEUBURGER, M.D. AND MARIA P. CHILDERS, M.D., THOMAS JEFFERSON UNIVERSITY HOSPITAL AND AARON WEISS, M.D. APPEAL OF: THOMAS JEFFERSON UNIVERSITY HOSPITAL AND AARON WEISS, M.D. No. 3084 EDA 2004 2005 PA Super 228 Filed: 6/22/2005
	Appeal from the ORDER Dated August 17, 2004, in the Court of Common Pleas of PHILADELPHIA County, CIVIL, AT No. 122 April Term 2004.
Before: DEL SOLE, P.J.; BENDER and OLSZEWSKI, JJ.
Opinion by: OLSZEWSKI, J.
Appellants, Thomas Jefferson University Hospital and Aaron Weiss, M.D., challenge the order of August 17, 2004, granting the motion to open judgments of non-pros filed by appellee, James Harris. Appellants claim that the lower court erred in opening the judgments of non-pros and allowing the case to continue. We affirm.

TIFFANY HEBERT O’GWYNN AND KAILEIGH HEBERT O’GWYNN, A MINOR v. STEPHEN ANTHONY HEBERT APPEAL OF: TIFFANY HEBERT O’GWYNN STEPHEN HEBERT v. TIFFANY HEBERT O’GYWNN, No. 2526 EDA 2004 2005 PA Super 226 Filed: 6/21/2005
	Appeal from the Order dated August 6, 2004, in the Court of Common Pleas of Philadelphia County, Family Court Division, at No. 0C0401154
Before: LALLY-GREEN, PANELLA, JJ., and McEWEN, P.J.E.
Opinion by: LALLY-GREEN, J.
Appellant, Tiffany Hebert O’Gwynn, appeals from the trial court’s August 6, 2004 order declining jurisdiction. We affirm.

DAVID J. HANSON v. LISA M. HANSON No. 2188 WDA 2004 2005 PA Super 227 Filed: 6/21/2005
	Appeal from the Order Entered October 20, 2004, Court of Common Pleas of Potter County, Civil Division at No. 137 of 2002
Before: LALLY-GREEN, McCAFFERY, and JOHNSON, JJ.
Opinion by: JOHNSON, J.
In this close custody case the trial court was forced to “choose” between two equally capable parents. We affirm the trial court’s custody order, based not on whether the trial court made the “right” decision, but rather on our conclusion that, consistent with our limited and deferent scope and standard of review, the trial court did not err or abuse its discretion.

COMMONWEALTH OF PENNSYLVANIA v. KENYA FITZGERALD No. 297 WDA 2004 2005 PA Super 231 Filed: 6/21/2005
	Appeal from the Judgment of Sentence of January 19, 2004, in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC 200215800.
Before: MUSMANNO, TODD AND BOWES, JJ.
Opinion by: BOWES, J.
Kenya Fitzgerald appeals from the life sentence imposed after he was convicted of first degree murder and related offenses. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. SYLVESTER SCOTT No. 1852 EDA 2004 2005 PA Super 224 Filed: 6/20/2005
	Appeal from the JUDGMENT of Sentence June 14, 2004 In the Court of Common Pleas of PHILADELPHIA County CRIMINAL at No(s): 04-04-0386
Before: GANTMAN, PANELLA, and OLSZEWSKI, JJ.
Opinion by: PANELLA, J.
Appellant, Sylvester Scott, appeals from the judgment of sentence entered on June 14, 2004, by the Honorable Chris R. Wogan, Court of Common Pleas of Philadelphia County. After careful review, we affirm.

TIMOTHY AND KIM ROCHE v. UGLY DUCKLING CAR SALES, INC., UGLY DUCKLING CORPORATION, AND GARDEN SPOT EQUIPMENT AUCTION, INC. t/a GARDEN SPOT AUTO AUCTION No. 1093 MDA 2004 Petition for Reargument Denied 8/23/2005 Filed: 6/20/2005
	Appeal from the Orders Entered December 15, 2003, and April 26, 2004 In the Court of Common Pleas of Dauphin County Civil Division at No. 5177 CV 2001 CV
Before: HUDOCK, STEVENS and BENDER, JJ.
Opinion by: BENDER, J.
Timothy and Kim Roche appeal from the orders entering summary judgment in favor of the defendants, Ugly Ducking Car Sales, Inc., Ugly Ducking Corporation (collectively, “Ugly Duckling”), and Garden Spot Equipment Auction, Inc., t/a Garden Spot Auto Auction (“Garden Spot”). Plaintiff, a police officer, sustained serious injuries when he was hit by a car owned by Ugly Duckling and stolen by juveniles from the property of Garden Spot where it had been parked. The trial court concluded that the defendants did not owe a duty of care to Plaintiff. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. JEREMY MATTHEW MORRISON No. 1615 MDA 2003 2005 PA Super 222 Filed: 6/17/2005
	Appeal from the Order Entered September 17, 2003, in the Court of Common Pleas of Lancaster County, Criminal Division, at No. 5227 CR 2001.
Before: HUDOCK, FORD ELLIOTT, JOYCE, ORIE MELVIN, KLEIN, BENDER, BOWES, GANTMAN, AND PANELLA, JJ.
Opinion by: BOWES, J.
Dissenting Opinion by: KLEIN, J.
Jeremy Matthew Morrison appeals from the September 17, 2003 order denying him PCRA relief. We reject Appellant’s challenges to the validity of his guilty plea and affirm.

RICHARD T. SCALIA and SERENA M. SCALIA, his wife v. ERIE INSURANCE EXCHANGE No. 1458 MDA 2004 2005 PA Super 223 Filed: 6/17/2005
	Appeal from the Order entered August 18, 2004 In the Court of Common Pleas of Franklin County, Civil Division at No. 1999-20339
Before: *HUDOCK, MONTEMURO and BECK, JJ.**
Opinion by: BECK, J.
The issue presented is whether the trial court abused its discretion in awarding attorney’s fees to defendant-appellee, following a trial in which the jury found that appellee had not breached its insurance contract with plaintiffs-appellants. Finding no abuse of discretion, we affirm.

COMMONWEALTH OF PENNSYLVANIA v. RANDY CLARK WHITACRE No. 537 WDA 2003 2005 PA Super 221 Filed: 6/16/2005
	Appeal from the Judgment of Sentence March 7, 2003 In the Court of Common Pleas of Indiana County Criminal Division, at No. 214 of 2002
Before: MUSMANNO, LALLY-GREEN, and McCAFFERY, JJ.
Opinion by: McCAFFERY, J.
Appellant, Randy Clark Whitacre, appeals from a judgment of sentence imposed by the Honorable Gregory A. Olson, after a jury found Appellant guilty of first degree murder, attempted criminal homicide, aggravated assault, recklessly endangering another person, and burglary. Appellant asks us to determine whether the trial court properly allowed testimony of a ballistics expert and whether it properly denied the motion for judgment of acquittal. We conclude that the trial court did not err in admitting the expert opinion testimony pertaining to ballistics and that the Commonwealth presented sufficient evidence to sustain the convictions. Accordingly, we affirm.

IN THE INTEREST OF: F.P., A MINOR APPEAL OF: F.P., A MINOR, No. 1126 WDA 2004 2005 PA Super 220 Filed: 6/15/2005
	Appeal from the Order Dated May 27, 2004, in the Court of Common Pleas of Allegheny County Juvenile Division at No. 2611-03
Before: FORD ELLIOTT, TODD, AND OLSZEWSKI, JJ.
Opinion by: FORD ELLIOTT, J.
F.P. appeals the disposition order of May 27, 2004, after he was adjudicated delinquent on one count of aggravated assault. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. JEFFREY L. BERRY No. 565 MDA 2003 2005 PA Super 219 Filed: 6/13/2005
	Appeal from the PCRA Order of March 20, 2003 In the Court of Common Pleas of Clinton County, Criminal No. 138-02 CR
Before: FORD ELLIOTT, JOYCE, STEVENS, MUSMANNO, LALLY-GREEN, TODD, KLEIN, BENDER and BOWES, JJ.
Opinion by: LALLY-GREEN, J.
Dissenting Opinion by: KLEIN, J.
Appellant, Jeffrey L. Berry, appeals from the order dated March 20, 2003, denying his first petition under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

TED W. PAROLY v. SANDRA J. PAROLY No. 695 EDA 2004 2005 PA Super 218 Filed: 6/10/2005
	Appeal from the Order Entered February 13, 2004, in the Court of Common Pleas of Bucks County, Civil Division, at No. A06-89-60017-D.
Before: BOWES AND McCAFFERY, JJ., AND MCEWEN, P.J.E.
Opinion by: BOWES, J.
Sandra J. Paroly (“Wife”) has appealed the trial court’s decision to uphold a marital settlement agreement that failed to delineate the value of a business owned by Ted W. Paroly ("Husband"), but did recite that disclosure of its value had been made. The record does not sustain a finding that the trial court abused its discretion in upholding the agreement; therefore, we affirm.

COMMONWEALTH OF PENNSYLVANIA v. GOMER ROBERT WILLIAMS, JR. No. 279 WDA 2004 2005 PA Super 217 Filed: 6/9/2005
	Appeal from the order entered on June 26, 2001, in the Court of Common Pleas of Erie County, Criminal Division, at No. 2000-02416.
Before: FORD ELLIOTT, MUSMANNO, and LALLY-GREEN, JJ.
Opinion by: LALLY-GREEN, J.
Dissenting Opinion by: FORD ELLIOTT, J.
In Commonwealth v. Williams, 832 A.2d 962 (Pa. 2003), our Supreme Court held that Megan’s Law II was, in most respects, constitutional. The Court also held that the registration requirements that were unconstitutionally punitive were severable. The Court remanded the case of Appellant Gomer Robert Williams, Jr., together with its companion case of Commonwealth v. Peters, 832 A. 2d 962 (Pa. 2003), for the trial court to review additional issues not decided by the Supreme Court. Id. at 986-987. On remand, without holding a hearing, the trial court rejected Appellant’s remaining constitutional challenges to Megan’s Law II. We vacate the trial court’s order and remand for further proceedings.

JOSEPH ROBERT FOLGER, A MINOR, BY HIS P/N/G, ROBERT J. FOLGER AND MARY T. FOLGER, AND ROBERT J. FOLGER AND MARY T. FOLGER, IN THEIR OWN RIGHT v. THERESA DUGAN, M.D., FRANKFORD HOSPITAL, SONDRA DANTZIC, M.D., THE MEDICAL COLLEGE OF PENNSYLVANIA, EUGENE ANDRUCZYK, D.O., MARILYN WETTLAUFER, M.D., WETTLAUFER, ANDRUCZYK AND DUGAN No. 3774 EDA 2002 2005 PA Super 215 Filed: 6/9/2005
	Appeal from the Order dated November 15 2002, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s). 1010 July Term, 1996.
Before: DEL SOLE, P.J., HUDOCK, FORD ELLIOTT, JOYCE, STEVENS, LALLY-GREEN, TODD, KLEIN, and BOWES, JJ.
Opinion by: LALLY-GREEN, J.
Dissenting Opinion by: JOYCE, .
Appellants, Joseph Robert Folger, Robert J. Folger and Mary T. Folger, appeal from the trial court’s November 15, 2002 order denying their post-trial motions. We affirm.

COMMONWEALTH OF PENNSYLVANIA v. THOMAS KERSTETER No. 1616 MDA 2004 2005 PA Super 216 Filed: 6/9/2005
	Appeal from the Order Entered September 20, 2004, in the Court of Common Pleas of Lycoming County, Criminal Division, at No. 99-10, 835; 99-11, 073, 99-11, 036; 99-10, 721, 99-11, 684; 99-10, 982.
Before: FORD ELLIOTT, MUSMANNO, and LALLY-GREEN, JJ.
Opinion by: BOWES, J.
Thomas Kersteter appeals the September 20, 2004 order denying his petition for PCRA relief. We reverse and remand.

CAROL A. JONES v. HAROLD W. JONES No. 1267 EDA 2004 2005 PA Super 213 Filed: 6/8/2005
	Appeal from the Order entered April 6, 2004 In the Court of Common Pleas of Delaware County Civil at No.: 99-7416
Before: STEVENS, BENDER, and POPOVICH, JJ.
Opinion by: STEVENS, J.
Carol A. Jones (“Wife”) appeals from the decree entered April 6, 2004, by the Court of Common Pleas of Delaware County. On appeal, Wife claims that the trial court erred in forcing her to sign the Property Settlement Agreement (“PSA”) drafted by Harold W. Jones (“Husband”), where the record revealed that the document failed to accurately reflect the equitable distribution agreement reached by the parties; and that the trial court erred in ordering Wife to pay Husband’s attorney’s fees to cover the litigation costs related to the filing of a petition for special relief. We affirm but remand the matter for a determination of counsel fees.

MARK T. WADE v. DONNA (WADE) HUSTON No. 1404 WDA 2004 2005 PA Super 214 Filed: 6/8/2005
	Appeal from the Order entered July 27, 2004 in the Court of Common Pleas of Allegheny County, Family Court Division, at No. FD 87-01636-006
Before: DEL SOLE, P.J., JOYCE and TAMILIA, JJ.
Opinion by: DEL SOLE, J.
This is an appeal from the order which, inter alia, ordered Appellant Wife to pay Appellee Husband essentially one half of the proceeds received from the sale of the marital home. The facts of the case were largely undisputed. Months prior to the parties’ 1989 divorce, they entered into a Property Settlement Agreement (“PSA”), which provided, in pertinent part, as follows: The following constitutes all of the real estate owned by the parties to this Agreement: Two story house and 4.8 acres of land located on Bull Creek Road, Fawn Township, Allegheny County, Pennsylvania, owned by the parties as Joint Tenants by the Entireties. It is the intent of the parties that this property be sold at a price satisfactory to both of them, and that the net proceeds, after payment of taxes and lien of mortgage and other costs, shall be divided equally between [Husband] and [Wife]. Pending sale of the property, [Wife] and the parties[’] children shall have the right of exclusive possession of the property, and [Husband] agrees not to enter upon the property for any reason whatsoever without the express consent of [Wife]. The time of and conditions of the sale of the property shall be at the sole discretion of [Wife]. . . . This Agreement may be amended or modified only by a written instrument signed by both parties except as provided otherwise in Article V relating to the custody, support and visitation of the children of the parties. Property Settlement Agreement, ¶¶ 3.01 and 7.08.

RICHARD G. SCHMIDT, M.D. v. DEUTSCH LARRIMORE FARNISH & ANDERSON, LLP and DALE P. LARRIMORE, ESQUIRE; MARTIN BANKS POND LEHOCKY WILSON and SAMUEL H. POND, ESQUIRE No. 1845 EDA 2004 2005 PA Super 212 Filed: 6/6/2005
	Appeal from the Order dated June 2, 2004 In the Court of Common Pleas of Philadelphia County, Civil Division at January Term, 2004, No. 1099
Before: KLEIN, McCAFFERY and BECK, JJ.
Opinion by: BECK, J.
This is an appeal from the order of the trial court granting appellees’ preliminary objections and dismissing appellant’s complaint with prejudice. We affirm.

IN RE: PRIVATE CRIMINAL COMPLAINT OF JOHN D. WILSON II APPEAL OF: JOHN D. WILSON II No. 211 WDA 2003 2005 PA Super 211 Filed: 6/6/2005
	Appeal from the Order December 19, 2002 In the Court of Common Pleas of Erie County Criminal, No.: OTN Pending
Before: FORD ELLIOTT, STEVENS, MUSMANNO, LALLY-GREEN, TODD, KLEIN, BENDER, BOWES, AND GANTMAN, JJ.
Opinion by: GANTMAN, J.
Concurring Opinion by: KLEIN, J.
This Court granted en banc review of the order entered in the Erie County Court of Common Pleas, which denied Appellant, John D. Wilson II’s petition for approval of his private criminal complaint. Appellant asks whether the trial court erred when it deferred to the decision of the District Attorney’s office to disapprove the complaint, although Appellant had presented evidence of a prima facie case. Appellant also asks whether the District Attorney’s office abused its discretion in disapproving his private criminal complaint for the policy reasons given. As prefatory matters, we must also determine whether Appellant has standing to appeal the trial court’s order and, if so, what is the applicable standard and scope of appellate review in this context. We hold Appellant has standing to appeal the trial court’s order sustaining the District Attorney’s disapproval of Appellant’s private criminal complaint. Applying the proper standard and scope of review as enunciated in this case, we affirm the trial court’s order, which deferred to the District Attorney’s decision to disapprove Appellant’s private criminal complaint.

LINDSAY R. SNEERINGER v. LYNN C. SNEERINGER No. 689 MDA 2004 2005 PA Super 210 Filed: 6/3/2005
	Appeal from the Order entered April 19, 2004 in the Court of Common Pleas of York County, Civil Division, at No. 2003-SU-01971-02D
Before: DEL SOLE, P.J., LALLY-GREEN and POPOVICH, JJ.
Opinion by: DEL SOLE, P.J.
Lynn Sneeringer (“Wife”) appeals from the trial court order denying her petition for special relief which sought to invalidate a marital settlement agreement. In response, Lindsay Sneeringer ('Husband') has filed a motion to quash the appeal asserting that this Court is without jurisdiction to entertain an appeal from the trial court’s interlocutory order. Upon review, we agree with Husband and quash the appeal.

COMMONWEALTH OF PENNSYLVANIA v. TODD A. YAKELL No. 1113 WDA 2004 2005 PA Super 209 Filed: 6/3/2005
	Appeal from the PCRA ORDER May 26, 2004, in the Court of Common Pleas of MERCER County, CRIMINAL, at No. 308 Criminal 2004.
Before: HUDOCK, KLEIN, and OLSZEWSKI, JJ.
Opinion by: OLSZEWSKI, J.
Appellant, Todd Yakell, appeals the order of May 26, 2004, granting in part and denying in part his petition under the Post Conviction Relief Act. On appeal, appellant claims that the PCRA court erred in not finding him entitled to credit for time served on his sentence. We reverse and remand for clarification and/or re-sentencing.

JANEY JORDAN v. BETTY JEAN AND CARLTON JACKSON v. W.H. No. 1054 WDA 2004 2005 PA Super 208 Filed: 6/2/2005
	Appeal from the Order entered in the Court of Common Pleas of Allegheny County, Family Court Division, No(s): FD 02-9745-005
Before: FORD ELLIOTT, ORIE MELVIN and TAMILIA, JJ.
Opinion by: TAMILIA, J.
Betty Jean and Carlton Jackson, paternal grandmother and step-grandfather, respectively, of W.H., Jr., born January 1, 1998, appeal from the June 8, 2004 Order modifying the April 15, 2003 shared custody Order, and awarding mother Janey Jordon primary physical custody of the child, and “substantial partial custody” to grandparents. Record #27, Trial Court Order, 6/8/04, Mulligan, J., at 1.

COMMONWEALTH OF PENNSYLVANIA v. GERALD E. BREWER No. 1794 WDA 2003 2005 PA Super 207 Filed: 6/2/2005
	Appeal from the Judgment of Sentence entered August 25, 2003, Court of Common Pleas, Allegheny County, Criminal Division at No. CC 2002 - 03571.
Before: HUDOCK, POPOVICH, and JOHNSON, JJ.
Opinion by: JOHNSON, J.
Gerald E. Brewer, former Wilkinsburg Borough Chief of Police, appeals the judgment of sentence imposed following his conviction of Theft by Unlawful Taking or Disposition and Retaliation Against a Witness, 18 Pa.C.S. §§ 3921, 4953 (respectively). Brewer contends that the Commonwealth adduced insufficient evidence to sustain his Retaliation conviction and that the trial court erred in admitting expert testimony concerning Brewer’s stewardship of funds confiscated by the police department pending resolution of the defendants’ cases. After careful consideration, we do not find grounds for the relief Brewer seeks. Accordingly, we affirm the judgment of sentence.

COMMONWEALTH OF PENNSYLVANIA v. JOHN EARL DOMMEL No. 1516 MDA 2004 Petition for Reargument Granted 7/29/2005 Filed: 6/1/2005
The Opinion by Judge Stevens is withdrawn. The application for panel reconsideration was granted on July 27, 2005.

COMMONWEALTH OF PENNSYLVANIA v. CRAIG LEWIS HEILMAN No. 1089 MDA 2004 2005 PA Super 202 Filed: 6/1/2005
	Appeal from the Judgment of Sentence June 14, 2004 In the Court of Common Pleas of Clinton County Criminal at Nos. 120-02
Before: *BENDER, PANELLA and MONTEMURO, JJ.**
Opinion by: MONTEMURO, J.
This is an appeal from the judgment of sentence of 20 to 120 months’ imprisonment entered June 14, 2004, in the Clinton County Court of Common Pleas following revocation of Appellant’s probation. For the reasons set forth below, we reverse and remand for a Gagnon II revocation hearing.

COMMONWEALTH OF PENNSYLVANIA v. THADDEUS DAVID WILLIAMS No. 771 MDA 2004 2005 PA Super 203 Filed: 6/1/2005
	Appeal from the Order Entered April 20, 2004 In the Court of Common Pleas of COLUMBIA County Criminal Division No. 832,833 of 2001
Before: STEVENS, McCAFFERY, and TAMILIA, JJ.
Opinion by: McCAFFERY, J.
Appellant, the Commonwealth of Pennsylvania, appeals from an order entered by the Honorable Scott W. Naus, which dismissed charges against Appellee, Thaddeus David Williams, pursuant to Pennsylvania Rule of Criminal Procedure 600. The Commonwealth asks us to determine whether it is required to show that it exercised due diligence in bringing a defendant to trial where the defendant is free on bail although confined in a state hospital for psychiatric treatment in accordance with an involuntary commitment order. We hold that upon the instant record, a showing of due diligence was not required. Therefore, we reverse and remand.

IN THE INTEREST OF: R.D. R., A JUVENILE No. 733 MDA 2004 2005 PA Super 204 Filed: 6/1/2005
	Appeal from the Order entered April 14, 2004 In the Court of Common Pleas of York County Criminal, No. 113 JADL 2004
Before: HUDOCK, GANTMAN, AND BECK, JJ.
Opinion by: GANTMAN, J.
Appellant, R.D.R., a minor, asks us to review the dispositional order entered in the York County Court of Common Pleas, which imposed fines following his adjudication of delinquency. Specifically, Appellant challenges the trial court’s imposition of fines under 42 Pa.C.S.A. § 6352(a)(5) of the Juvenile Act for the offenses of Fleeing or Attempting to Elude a Police Officer, and Operators Required to Be Licensed, without consideration of Appellant’s earning capacity. Appellant also challenges the court’s imposition of the mandatory minimum fine under 75 Pa.C.S.A. § 3804(c) of the Motor Vehicle Code, for the offense of Driving Under Influence of Alcohol or Controlled Substance. Under the circumstances of this case, we hold the juvenile court erred when it imposed fines under Section 6352(a)(5) of the Juvenile Act without properly considering Appellant’s ability to pay in light of his earning capacity. We further hold the court erred when it applied the mandatory minimum fine under Section 3804(c) of the Motor Vehicle Code to Appellant’s juvenile disposition. Accordingly, we vacate and remand the matter for reconsideration of the fines consistent with this opinion.

COMMONWEALTH OF PENNSYLVANIA v. BRAEDEN D. MALONEY No. 1432 MDA 2004 2005 PA Super 206 Filed: 6/1/2005
	Appeal from the Judgment of Sentence April 26, 2004 In the Court of Common Pleas of Centre County Criminal at No. 2003-1785
Before: STEVENS, BOWES, and McCAFFERY, JJ.
Opinion by: STEVENS, J.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Centre County after a jury found 18 year old Appellant guilty of just one of two counts of Selling or Furnishing Liquor to a Minor, 18 Pa.C.S.A. § 6310.1(a). On appeal, Appellant challenges the sufficiency of evidence that he knew the age of the victim, and that he actually sold or furnished liquor. Appellant also challenges the court’s denial of his motion in limine to exclude a police officer’s testimony as to the minor’s physical condition and level of intoxication. We affirm.

LOBAR, INC. v. LYCOMING MASONRY, INC. v. MURRAY ASSOCIATES ARCHITECTS, P.C. No. 1639 MDA 2004 2005 PA Super 201 Filed: 6/1/2005
	Appeal from the Order Entered on July 20, 2004 In the Court of Common Pleas of Lycoming County Civil Division at No. 02-02,299
Before: HUDOCK, STEVENS and BENDER, JJ.
Opinion by: BENDER, J.
Lycoming Masonry, Inc. (Defendant) appeals from the order denying part of its motion for summary judgment against Lobar, Inc. (Plaintiff). Plaintiff brought suit against Defendant on two counts; one count for breach of contract and a second count for promissory estoppel. Defendant moved for summary judgment on both counts. The trial court concluded that no contract was formed between the parties, and therefore, it granted Defendant’s motion for summary judgment on the count for breach of contract. But the court denied the motion for summary judgment on Plaintiff’s claim for promissory estoppel. For the following reasons, we reverse.