Datasets:

TeraflopAI

/

pa_embeddings

like 0

OPINION ANNOUNCING THE JUDGMENT OF THE COURT ZAPPALA, Justice. This case is before us on remand from the United States Supreme Court for further proceedings not inconsistent with its per curiam opinion, Pennsylvania v. Kilgore, — U.S. —, 116 S.Ct. 2485, 135 L.Ed.2d 1031 (1996). We issued an opinion in this matter on December 26, 1995, which sets forth the factual and procedural history of the case. Commonwealth v. Kilgore, 544 Pa. 439, 677 A.2d 311 (1995). We there held that although probable cause existed, the warrantless search of Appellant’s vehicle was illegal since the Commonwealth failed to set forth exigent circumstances such that it would have been impracticable for the police to have obtained a search warrant. We stated, “we are constrained to conclude that the search of Appellant’s vehicle was conducted in a manner which violated his rights under the Fourth Amendment .... ” Id. at 445, 677 A.2d at 314. The United States Supreme Court summarily reversed our decision, along with Commonwealth v. Labron, 543 Pa. 86, 669 A.2d 917 (1995), holding that the warrantless searches of the automobiles did not violate the Fourth Amendment to the United States Constitution because probable cause was established. The Court added that “[t]he law of the Commonwealth thus appears to us ‘interwoven with the federal law, and ... the adequacy and independence of any possible state law ground is not clear from the face of the opinion.’ ” — U.S. at —, 116 S.Ct. at 2487, citing Michigan v. Long, 463 U.S. 1032, 1040-1041, 103 S.Ct. 3469, 3476-3477, 77 L.Ed.2d 1201 (1983). In our opinion on remand in Commonwealth v. Labron, (J-127A-1996), we stated that Labron was decided upon independent state grounds. Finding that the state constitutional claim was preserved, we reinstated our previous order. Appellant here, however, did not adequately preserve a state constitutional claim. The record establishes that Appellant’s first reference to Article I, Section 8 of the Pennsylvania Constitution appears in his brief to our Court. He did not raise a claim under the Pennsylvania Constitution in the lower courts. Matters not raised in the trial court cannot be considered on appeal. Commonwealth v. Capitolo, 508 Pa. 372, 498 A.2d 806 (1985); Commonwealth v. Simmon, 521 Pa. 218 n. 1, 555 A.2d 860 n. 1 (1989) (state constitutional claim raised for first time in appeal to Supreme Court is waived). Accordingly, since Appellant has failed to preserve a state constitutional claim and the United States Supreme Court reversed our previous decision as an improper interpretation of federal law, we vacate our order which reversed the Superi- or Court’s affirmance of Appellant’s judgment of sentence. CASTILLE, J., files a concurring opinion joined by NEWMAN, J. NIGRO, J., concurs in the result. . Justice Stevens filed a dissenting opinion in which Justice Ginsburg joined.

ORDER PER CURIAM: AND NOW, Anthony A. Muraski having been suspended from the practice of law in the State of Michigan for a period of three years by Notice of Suspension of the State of Michigan Attorney Discipline Board dated April 3, 1996; the said Anthony A. Muraski having been directed on February 6, 1997, to inform this Court of any claim he has that the imposition of the identical or comparable discipline in this Commonwealth would be unwarranted and the reasons therefor; and no response having been filed, it is ORDERED that Anthony A. Muraski is suspended from the practice of law in this Commonwealth for a period of three years, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

OPINION CASTILLE, Justice. This is a direct appeal from a sentence of death imposed by the Court of Common Pleas of Philadelphia County. Follow ing a jury trial, appellant was convicted of two counts of first degree murder, two counts of criminal conspiracy, and one count of robbery. The jury determined that the three aggravating circumstances it found outweighed the one mitigating circumstance it found and returned a sentence of death. Post-verdict motions were denied and the trial court imposed the death sentence for each murder conviction. In addition, the trial court sentenced appellant to consecutive terms of five to ten years imprisonment on each criminal conspiracy conviction and ten to twenty years imprisonment on the robbery conviction. SUFFICIENCY OF THE EVIDENCE Although appellant does not challenge the sufficiency of the evidence, as in all cases in which the death penalty has been imposed, this Court is required to independently undertake a review of the sufficiency of the evidence. Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). The standard for reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as verdict winner, is sufficient to support all the elements of the offenses beyond a reasonable doubt. Commonwealth v. Carpenter, 511 Pa. 429, 435, 515 A.2d 531, 533-34 (1986). After a review of the record, we find that the evidence is sufficient to support appellant’s conviction. The evidence presented at trial established that on December 24, 1990, appellant and two companions, Gregory Tancemore and David Greene, drove to Woody’s Bar in Philadelphia, where approximately thirty other patrons were celebrating on Christmas Eve. While Greene waited in the car, appellant and Tancemore entered the bar and ordered drinks. After the bartender, Princess Pettaway, served the drinks, appellant got up and walked towards the restroom located at the rear of the bar where one of the bar’s bouncers, Keith Simmons, was standing. Appellant confronted Simmons at the restroom door and pointed a .45 caliber semi-automatic handgun at Simmons’ stomach. Simmons grabbed the handgun and, as appellant and Simmons struggled over the handgun, Sam Ziegler, the other bouncer for the bar, came to Simmons’ aid. While the three men were struggling over the handgun, Tancemore, who was also armed, began firing shots from the front of the bar. Appellant broke free of the two bouncers, took his handgun and joined Tancemore at the front of the bar. As the two began firing shots into the bar, Frederick Dukes, an off duty police officer who was patronizing the bar, drew his handgun. Appellant fired several shots at Officer Dukes, hitting him as well as Vernae Nixon, another patron. Appellant and Tancemore then fled the bar. Police arrived on the scene several minutes later and transported both Officer Dukes and Nixon to the hospital in a police vehicle. Nixon, who was pronounced dead on arrival at the hospital, had been shot twice, once through the arm and once through the chest, a shot which pierced both lungs and two major arteries to the heart. Officer Dukes underwent several surgeries, but nevertheless died the next morning from his wounds. He had been shot in the right forearm and twice in the chest. One of the bullets passed through his liver and lodged in his aorta. The bullet which was recovered from Officer Dukes’ body was a .45 caliber bullet. On December 26, 1990, both Princess Pettaway and Keith Simmons separately identified appellant from photographic arrays as one of the perpetrators. Appellant was arrested later that afternoon and, after waiving his Miranda rights, gave the police two statements. In the first statement, appellant admitted being in the bar that night, but denied having a handgun or having fired any shots. He stated that Tancemore had carried both a nine millimeter semiautomatic weapon and a .45 caliber semi-automatic handgun but had handed appellant a .38 caliber revolver as they entered the bar. Appellant stated that Tancemore told him to follow Simmons and another man, who Tancemore said was selling cocaine, into the men’s room and to detain them there at gunpoint. Appellant stated that Simmons saw his handgun and that the two struggled until Tancemore began firing shots from the front of the bar. When appellant reached the front of the bar, Tancemore told him to “get the money.” Appellant claimed that Tancemore fired all of the shots. However, during a break in the interview, police were informed that a .45 caliber handgun had been found in Greene’s apartment and that Greene claimed that appellant had given him that handgun for safekeeping. When appellant was confronted with that information, he admitted that the .45 caliber handgun was his and that he had taken it to the bar on the night of the murders and subsequently hidden it at Greene’s apartment. He stated that after struggling with Simmons, he went to the front of the bar and saw Officer Dukes draw his handgun. Appellant stated that he then fired three shots at Officer Dukes before fleeing the bar. At trial, appellant testified on his own behalf that he, Tancemore and Greene had gone to a bar on Christmas Eve. He further testified that he had in his possession a .38 caliber handgun which he carried at all times for protection because he dealt illegal drugs. He stated that he and two other men in the bar struggled over his firearm near the restroom. However, appellant denied having fired any shots in the bar or having intended to commit a robbery. Rather, he claimed that Tancemore and Greene had begun firing shots while appellant and the other men were struggling over appellant’s handgun. Evidence is sufficient to sustain a conviction for first degree murder where the Commonwealth establishes that the defendant acted with a specific intent to kill; that a human being was unlawfully killed; that the person accused did the killing; and that the killing was done with deliberation. 18 Pa.C.S. § 2502(d); Commonwealth v. Mitchell, 528 Pa. 546, 550, 599 A.2d 624, 626 (1991). Specific intent to kill can be inferred by the use of á deadly weapon upon a vital part of the body. Commonwealth v. Butler, 446 Pa. 374, 378, 288 A.2d 800, 802 (1972). Furthermore, all co-conspirators to a murder can be found guilty of first degree murder, regardless of who actually inflicted the wound which resulted in death. Commonwealth v. Jones, 542 Pa. 464, 484, 668 A.2d 491, 500 (1995), citing Commonwealth v. Joseph, 451 Pa. 440, 449, 304 A.2d 163, 168 (1973). Here, the evidence the Commonwealth presented sufficiently established that appellant and a co-conspirator went to a crowded bar with the intention of committing a robbery and fired numerous shots into the crowd, killing two patrons as the result of gun shot wounds to vital parts of their bodies. Such evidence clearly demonstrated that the killings were committed with the malice aforethought sufficient to sustain appellant’s convictions for first degree murder. Hence, no relief is warranted on this issue. JURY SELECTION 1. Batson Claim Appellant’s first allegation of error is that the Commonwealth violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by using its peremptory challenges to exclude all black prospective jurors from the final jury panel. In order to establish a prima facie case on a Batson claim defendant must make a record identifying the race of venirepersons stricken by the Commonwealth, the race of prospective jurors acceptable to the Commonwealth but stricken by the defense, and the racial composition of the final jury. Commonwealth v. Simmons, 541 Pa. 211, 231-32, 662 A.2d 621, 631 (1995), cert. denied, -U.S. -, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996), citing, Commonwealth v. Spence, 534 Pa. 233, 246, 627 A.2d 1176, 1182-83 (1993). At the outset, appellant contends that the trial court found a prima facie case of discriminatory exercise of peremptory challenges by the prosecutor. However, a review of the record demonstrates that, although appellant twice raised a Batson claim, the trial court found on both occasions that appellant had failed to make out a prima facie case, and therefore did not require the Commonwealth to explain the exercise of its peremptory strikes. N.T. 9/27/91 at 96-98; N.T. 10/1/91 at 114. Furthermore, the record does not indicate the racial composition of the venire, the race of the venirepersons against whom appellant exercised his peremptory strikes or the final racial composition of the jury. Thus, the record does not support appellant’s contention that he was tried by a jury violative of the Batson rule. The record does demonstrate, however, that at the time the Commonwealth used its eleventh peremptory strike, it had used only seven strikes against black venirepersons, one of which appellant conceded was race-neutral. N.T. 9/26/91 at 97; 10/1/91 at 114. This Court has held that the use of ten to twelve peremptory strikes against black venirepersons does not in itself establish a prima facie case of discrimination. Commonwealth v. Wilson, 538 Pa. 485, 500-01, 649 A.2d 435, 443 (1994), cert. denied, -U.S. -, 116 S.Ct. 145, 133 L.Ed.2d 91 (1995). Therefore, absent additional evidence of discrimination, appellant has failed to establish a prima facie case of discriminatory exercise of peremptory strikes in violation of Batson, 2. Jury Taint Appellant’s second claim is that the trial court erred in refusing to dismiss the entire jury venire after learning that one member of the venire had stated, within the hearing of other potential jurors, that he knew one of the victims and that drugs were involved in the crime. Appellant claims that the venireman informed “a goodly portion” of the jury that he was a friend of both victims, that he was at the crime scene and that there had been drugs at the crime scene. Appellant further claims that the court failed to conduct a full inquiry into whether the panel was tainted, and that only one juror was excused for cause as a result of hearing the statements. Initially, we must note that appellant’s contention that the court failed to inquire into possible jury taint is belied by the record. To the contrary, the court asked each prospective juror who had been present in the hallway when the comment was made whether he or she had heard any other prospective juror comment on the case. Furthermore, the court told defense counsel that he would grant wide latitude in allowing voir dire of the remaining prospective jurors as to whether they had heard any such comments. N.T. 10/2/91 at 20. Moreover, a review of the record demonstrates that the comments were made in the presence of only six other prospective jurors in the hallway outside the courtroom. N.T. 10/1/91 at 159, 162. Voir dire of those six as to whether they had heard the alleged comments revealed that only two had heard the comments, and those two along with the speaker were excused for cause. Furthermore, the remaining four venirepersons who had been present when the comments were made were not seated on the jury. Because appellant has faded to demonstrate that any of the jurors who actually heard his case had been exposed to the comments in question, the trial court did not err in refusing to dismiss the entire venire. Commonwealth v. Martin, 465 Pa. 134, 158-59, 348 A.2d 391, 403-04 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976) (defendant was not prejudiced by conversation between prospective jurors and friends of victim where none of the prospective jurors involved were seated on the final jury). TRIAL COURT ERRORS — GUILT PHASE 1. Scope of cross-examination Appellant contends that the trial court erred in permitting the Commonwealth to cross-examine defense witnesses on certain issues. A trial court has broad discretion to limit the scope of cross-examination, and rulings regarding the scope of cross-examination may not be reversed absent a showing that the court abused that discretion. Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992). First, appellant alleges that the trial court erred when it overruled his objection to the Commonwealth’s use of appellant’s earlier testimony from the evidence suppression hearing that he had not been at Woody’s bar on the night of the murder in order to attack appellant’s testimony at trial that he had been in Woody’s bar on that night. Appellant objected on the grounds that there was no inconsistency between his suppression testimony and his trial testimony. A review of the record reveals that this claim is patently baseless since the trial court sustained appellant’s objection. N.T. 10/7/91 at 134. Next, appellant contends that the trial court erred in allowing the Commonwealth to cross-examine defense witness Lamont Jones concerning a conversation he had with defense counsel just prior to testifying. Appellant fails to explain in his brief to this Court the content of either the witness’ testimony or of the challenged questions. A review of the record reveals that Lamont Jones was called by appellant to identify the murder weapon allegedly used by appellant as belonging to David Greene and not appellant. However, moments before Jones’ testimony, Jones had approached the prosecutor and identified another handgun as belonging to David Greene. Accordingly, on cross-examination the Commonwealth elicited testimony from the witness that, moments before his testimony, Jones had identified another weapon as belonging to Greene, and then had conferred privately with defense counsel before taking the stand. N.T. 10/7/91 at 226-29. When questioned concerning the change in his testimony between talking to the prosecutor and actually testifying, the witness stated only that the handgun he was “supposed to identify” as Greene’s was the murder weapon, a .45 caliber handgun. Id. at 228. Given the change in the witness’ identification, the trial court did not abuse its discretion in allowing the Commonwealth to impeach the witness’ credibility. Commonwealth v. Cheatham, 429 Pa. 198, 202-03, 239 A.2d 293, 295-96 (1968) (cross-examination to test a witness’ credibility is permissible). 2. Denial of continuance Next, appellant contends that the trial court erred in denying him a continuance to secure for trial the appearance of a witness whose testimony appellant argues was crucial because it bore upon the voluntariness of appellant’s statements to police before arraignment. The witness in question, Dr. Fadeyibi, a doctor of education who was employed by the Public Defender’s Association, had testified at the hearing on the motion to suppress that he had been present when appellant was arraigned, that appellant’s face appeared puffy and that appellant stated to him at that time that he had been beaten by police. N.T. 9/24/91 at 135. Dr. Fadeyibi was subpoenaed to appear on October 7,1991, but failed to appear. According to the trial court opinion, after an off-the-record discussion appellant was given twenty-four hours to locate the missing witness. On October 8, Dr. Fadeyibi still failed to appear and, after appellant had called all of his other witnesses, defense counsel requested a continuance in order to locate Dr. Fadeyibi. The trial court gave defense counsel an opportunity to make telephone calls in an effort to locate the witness on October 8, but when that attempt was not successful, the trial court denied the request for a continuance. Defense counsel failed to demonstrate that he had undertaken any effort to secure the witness other than issuing a subpoena and making a few telephone calls after the witness failed to appear on two occasions. The decision to grant or deny a continuance to allow a party an opportunity to procure a witness is within the discretion of the trial court, and will not be disturbed absent an abuse of discretion. Williams, supra at 19, 640 A.2d at 1260. Four other defense witnesses testified at trial that appellant appeared as if he had been beaten, and appellant himself testified that he had signed both statements he made to the police prior to arraignment because the police were beating him. Because Dr. Fadeyibi’s testimony was merely cumulative of testimony from five other witnesses, the trial court did not abuse its discretion in denying a request for a continuance on the fourth day of trial. 3. Jury instructions Next, appellant raises several claims that the trial court erred in its formulation of jury instructions. When reviewing jury instructions, the charge must be considered as a whole. Commonwealth v. Prosdocimo, 525 Pa. 147, 150, 578 A.2d 1273, 1274 (1990). The trial court has broad discretion in its phrasing of jury instructions so long as the instructions given adequately reflect the law. Id. Appellant first contends that the trial court erred in failing to instruct the jury that third degree murder requires an intent to commit serious bodily injury. However, a review of the record confirms that the trial court did so charge the jury. N.T. 10/8/91 at 165-66. Therefore, this baseless claim is rejected. Appellant next claims that the trial court erred in instructing the jury on the elements of conspiracy to commit robbery rather than conspiracy to commit murder because he was charged with conspiracy to commit murder, not conspiracy to commit robbery. However, the record once again belies appellant’s claim. The trial court did not charge the jury on the elements of conspiracy to commit robbery, but on the elements of conspiracy generally. Appellant apparently interprets the charge as relating to conspiracy to commit robbery because it was given in the context of the charge pertaining to the felony murder doctrine. The trial court charged the jury that appellant could be convicted of felony murder if he and Tancemore were partners in committing the underlying felony of robbery. N.T. 10/8/91 at 163-64. Nonetheless, the trial court did not charge the jury on the elements of conspiracy to commit robbery and did not inform the jury that appellant had been charged with conspiracy to commit robbery. Therefore, this baseless claim is rejected. Appellant also contends in his statement of questions presented that the trial court erred in failing to “give a charge on identification testimony.” However, appellant’s argument in support of this claim in his brief to this Court fails to address this claim and instead discusses the inadmissibility of inconsistent or tainted identification testimony. Significantly, appellant did not attempt to have the identification testimony of the eye-witnesses suppressed, and, notwithstanding appellant’s contentions to the contrary, there is nothing in the record which indicates that the identifications were inconsistent or the result of unduly suggestive photographic arrays which would have possibly tainted the in-court identifications. Commonwealth v. Carter, 537 Pa. 233, 253-54, 643 A.2d 61, 71 (1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995) (in-court identification following unduly suggestive out-of-court identification is inadmissible unless the totality of the circumstances establish an independent basis for the in-court identification). Appellant further contends that the trial court should have given the jury a Kloiber instruction that it should view with caution the identification testimony of Officer Prince Parker, an off-duty police officer who was a witness to the murders, since he was unable to identify appellant from a photographic array. Under Commonwealth v. Kloiber, 378 Pa. 412, 424-25, 106 A.2d 820, 826-27, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), a charge that a witness’ identification should be viewed with caution is required where the eyewitness: (1) did not have an opportunity to clearly view the defendant; (2) equivocated on the identification of the defendant; or (3) had a problem making an identification in the past. Here, Officer Parker testified that one of the photographs shown to him was familiar, but that he chose to wait for an opportunity to make a positive in-person identification. N.T 10/4/91 at 73-74. When Officer Parker did see appellant in person at trial, he made an immediate positive identification. Officer Parker also testified that he had sufficient opportunity to observe appellant because he was seated next to him at the bar for several minutes. The trial court, under these circumstances, was not required to instruct the jury to view with caution the unequivocal in-court identification of appellant merely because the identifying witness did not pick appellant’s photograph out of an array. Commonwealth v. Yarris, 519 Pa. 571, 600, 549 A.2d 513, 527-28 (1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3201, 105 L.Ed.2d 708 (1989) (Kloiber charge not required where one witness failed to identify defendant at the preliminary hearing and one witness expressed some doubt when identifying defendant in a photographic array but both unequivocally identified defendant at trial). TRIAL COURT ERROR — PENALTY PHASE 1. Jury instruction on mitigating circumstances Appellant next contends that the trial court erred in instructing the jury regarding mitigating circumstances. Appellant’s argument in support of this issue is undeveloped and does not explain with particularity why the given instruction was improper. Accordingly, he has failed to convince us that error occurred. 2. Aggravating circumstances submitted to the jury Appellant argues that the trial court erred in submitting to the jury the aggravating circumstance that Officer Dukes was a police officer killed in the performance of his duties. However, because the jury did not find that aggravating circumstance to exist, any error in submitting that particular aggravating circumstance to the jury was harmless. Williams, supra at 25, 640 A.2d at 1263. PROSECUTORIAL MISCONDUCT DURING CLOSING ARGUMENT Appellant next contends that the prosecutor engaged in misconduct in closing arguments during the guilt phase of trial. It is within the discretion of the trial court to determine whether a defendant has been prejudiced by misconduct or impropriety to the extent that a mistrial is warranted. Simmons, supra at 246-47, 662 A.2d at 638. Comments by a prosecutor do not constitute reversible error unless the unavoidable effect of such comments would be to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a true verdict. Commonwealth v. Sam, 535 Pa. 350, 362, 635 A.2d 603, 608 (1993), cert. denied, 511 U.S. 1115, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994). In considering appellant’s claims of prosecutorial misconduct, we must emphasize that a prosecutor’s comments are not evidence. Commonwealth v. LaCava, 542 Pa. 160, 181-82, 666 A.2d 221, 231 (1995), citing Commonwealth v. Green, 525 Pa. 424, 461, 581 A.2d 544, 562 (1990). Indeed, the trial court clearly and repeatedly so instructed the jury, which is presumed to follow the court’s instructions, on this rule of law. N.T. 10/3/91 at 12-13, 10/8/91 at 181; Commonwealth v. Johnson, 542 Pa. 384, 402-03, 668 A.2d 97, 106 (1995), citing, Commonwealth v. Carter, 537 Pa. 233, 265, 643 A.2d 61, 77 (1994). With these standards and circumstances in mind, we find that the complained-of comments do not warrant relief. The first statement which appellant argues was improper was: In that regard I am going to discuss with you what you heard as character testimony, and you heard only one trait discussed and that is the trait of truthfulness. You did not hear other traits discussed, so you cannot make assumptions regarding them; that is, law-abidingness or peacefulness. You heard only truthfulness discussed, and I submit character testimony must be examined and must be weighed. It must be. When you do that, consider from whom it came and the purpose for which it was elicited. That is, as you heard some people say well, he is alright with me, that is not saying someone is of good character, they have a good reputation. In fact, the most interesting testimony is from the gentleman with the couple names [sic]. He said well, he heard rumors. It’s interesting testimony, but that doesn’t have anything to do with the reputation of truthfulness. What you heard is people say I have known him for a long time, and this is from people who none of them were aware that he was a drug dealer, as he himself stated, none of them knew he carried a gun, as he himself stated. Consider the truthfulness of a person like that and consider the value of that character testimony. And if you can, for one second look at it this way. I have six sisters, I have a brother, and I think if I were on trial, they would come in and testify to my good character for something. I might not get a unanimous vote all the time, but they would say generally I have a good character. That is because they love me, but they didn’t know particularly what happened with the incident, just as particularly none of these people know particularly what happened at Woody’s bar on Christmas Eve. Now, you have a duty and an obligation and you have to look at the evidence and make a determination. Family members don’t. They don’t have to accept what the truth is. They don't have to accept the guilt of the person they are concerned with, and they probably never will. But when you hear the truth from the witness stand, you have that obligation and you must accept that responsibility. N.T. 10/8/91 at 147-49. Appellant contends that, by referring to the weight and value of appellant’s reputation witnesses, the prosecutor “disparage[d] the guaranteed right of an accused to have the jury hear of his good reputation.” However, appellant was not prevented from presenting character testimony, and did in fact call eleven character witnesses, nine of whom were relatives of appellant’s. The Commonwealth was permitted to ask the jury to consider the source of that character testimony in assessing the witnesses’ credibility and the weight to be given to their testimony. Commonwealth v. Van Cliff, 483 Pa., 576, 586, 397 A.2d 1173, 1178, cert. denied, 441 U.S. 964, 99 S.Ct. 2412, 60 L.Ed.2d 1070 (1979). The complained-of argument in the present case merely asked the jury to consider that appellant’s character witnesses may have been biased and as such did not amount to prosecutorial misconduct. The second statement made by the prosecutor during closing arguments which appellant contends was improper was: But I will tell you this. There is nothing that you can do now, there is not a thing in the world you can do now for Fred Dukes. He is gone. Or Vernae Nixon. They are gone. There are no words I can say that can do anything for them, because they have gone where we are all going to go, but they have gone all too soon because of the murderous acts of that man. But what you can do and what you must do is deliver the only remaining call they have upon anyone on this earth, and that is a call for justice, because you can’t return to sons their father or to a wife her husband or to a daughter her mother. * * * * * * ... So just do what is right for yourselves, for justice, for all the participants, because when you do, you are not giving Vernae Nixon’s mother her daughter back, you are not giving Miss Dukes her husband back or her sons their father back, you are only giving this defendant what he deserves____ N.T. 10/8/91 at 154-55, 157. Appellant does not explain in his brief to this Court why this comment was improper. However, this Court has held that comments similar to those of which appellant complains were not prosecutorial misconduct. See, Commonwealth v. Ragan, 538 Pa. 2, 36, 645 A.2d 811, 827 (1994) (argument that acquittal would be “failure of justice” was not prosecutorial misconduct); Commonwealth v. Marshall, 534 Pa. 488, 501-02, 633 A.2d 1100, 1106-07 (1993) (trial counsel was not ineffective for failing to object to argument that the eyes of the dead victim were “open and looking to you for justice”); Commonwealth v. Baker, 531 Pa. 541, 557-59, 614 A.2d 663, 671-72 (1992) (arguments that the jury should put its arms around the victim’s family and “promise the individuals who did this will be responsible” and that victim could not be brought back to his family were not prosecutorial misconduct). Therefore, we find that the complained of comments were not improper and that a mistrial was unwarranted. INEFFECTIVE ASSISTANCE OF COUNSEL Appellant next raises numerous claims of ineffective assistance of trial counsel. When asserting ineffective assistance of counsel, appellant must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have any reasonable basis designed to effectuate his client’s interests; and (3) counsel’s ineffectiveness prejudiced appellant. Commonwealth v. Edmiston, 535 Pa. 210, 237, 634 A.2d 1078, 1092 (1993), citing, Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987). Counsel is presumed to have acted in his client’s best interest; thus, it is appellant’s burden to prove otherwise. Commonwealth v. Miller, 494 Pa. 229, 233, 431 A.2d 233, 235 (1981). First, appellant contends that trial counsel was ineffective in failing to seek suppression of a statement to police because it was obtained in of violation the “six-hour rule.” This claim is baseless. In Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), this Court held that statements obtained within six hours of one’s arrest were admissible even though arraignment occurred later. Id. at 406, 525 A.2d at 1182-83. Here, appellant was arrested at 4:45 p.m. on December 26, 1990, and he gave a statement to police on that date which began at 6:45 p.m. and was time stamped as completed at 10:17 p.m. Although appellant was not arraigned until 8:30 the next morning, because appellant finished his statement within six hours after his arrest, his statement was clearly admissible under Duncan, supra. Trial counsel cannot be ineffective for failing to raise this meritless claim. Appellant next contends that trial counsel was ineffective for failing to object to the prosecutor’s comments during opening argument that co-defendant Gregory Tancemore had committed suicide. Opening statements must be fair deductions from the evidence which the prosecutor expects will be presented at trial. Commonwealth v. Jones, 530 Pa. 591, 607, 610 A.2d 931, 938-39 (1992). Appellant does not identify the particular portions of the prosecutor’s opening statement which he finds objectionable or explain how he was prejudiced by such references. Hence, this claim fails to convince us that relief is warranted. Next, appellant contends that trial counsel was per se ineffective by virtue of his statement to the trial court during trial that he was unprepared and had not conferred with his witnesses. Once again, appellant has failed to provide a citation to the record in his brief. However, a review of the record demonstrates that at the conclusion of the Commonwealth’s case-in-chief, trial counsel made the following statement: I would ask the Court, if the Court anticipates I am to proceed this afternoon, to break for an early lunch, because I am simply not prepared, I have not conferred with my witnesses. I have subpoenaed a number of people who are not in the courtroom. I don’t know if they are in the hallway. My detective is not here. N.T. 10/7/91 at 75. The only argument presented by appellant in support of this claim is that, had trial counsel been prepared, he would have called witnesses to testify that appellant was too drunk to form the intent required for first degree murder. In order to establish that counsel was ineffective for failing to call witnesses, appellant must show, in addition to meeting the general standard to establish ineffective assistance of counsel, that the witnesses existed, were available and willing to testify on appellant’s behalf; that counsel knew of or should have known of the existence of the witnesses; and that appellant was prejudiced by the absence of the testimony which would have been offered. Commonwealth v. Speight, 544 Pa. 451, 463-65, 677 A.2d 317, 323 (1996). Because appellant fails to identify any witnesses who would have testified to that effect, he has failed to develop this claim and it is rejected. Next, appellant claims that trial counsel was ineffective for failing to object to the Commonwealth’s cross-examination of appellant’s character witnesses about whether they knew that appellant dealt drugs and carried a handgun because that conduct did not relate to appellant’s reputation for truthfulness. The Commonwealth asked this question as a result of appellant’s testimony in his case-in-chief that he carried a handgun for his own protection because he was a drug dealer. N.T. 10/7/91 at 85. The scope of cross-examination is a matter within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Birch, supra. Once a defendant has put his character into evidence, the Commonwealth may properly inquire regarding the scope of the character witnesses’ knowledge and the basis of the opinion. Commonwealth v. Peterkin, 511. Pa. 299, 318, 513 A.2d 373, 382 (1986), cert. denied 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987) (character witnesses may be cross-examined regarding their knowledge of specific instances of conduct in order to test the accuracy of their testimony and the standards by which they measure reputation); Commonwealth v. Amos, 445 Pa. 297, 300, 284 A.2d 748, 750 (1971) (defendant’s prior criminal record may be used to test a character witness’ knowledge of the defendant’s reputation). One of the witnesses who testified to appellant’s reputation for truthfulness was his tax accountant, who was unaware that appellant was dealing drugs. N.T. 10/8/91 at 11. One of appellant’s uncles testified that had he known that appellant carried a handgun and sold drugs, appellant would not have been welcome in the uncle’s home. N.T. 10/8/91 at 26. Moreover, the witnesses who were unaware of appellant’s involvement with guns and drugs stated that appellant had concealed that information from them. It was not an abuse of discretion for the trial court to allow the prosecutor to inquire into whether appellant had concealed information from his family and his accountant after they had testified to his reputation for truthfulness. Appellant next asserts that trial counsel was ineffective for failing to object to the prosecutor’s closing argument during which he stated the following: You will hear the Judge charge you in the degrees of murder. There are three degrees of murder: third degree murder, second degree murder and first degree murder. Third degree murder is essentially any murder that occurs without the specific intent to kill, but with malice, coldness of heart. Primarily it is when a person intends to cause injury or serious bodily injury but not death, but death nonetheless results. That is a third degree murder. N.T. 10/8/91 at 129. Appellant claims that the prosecutor’s argument regarding third degree murder incorrectly stated the law because it told the jury that third degree murder required that there be no intent to kill. However, the prosecutor did correctly define third degree murder; hence counsel was not ineffective for failing to object. Commonwealth v. Carter, 481 Pa. 495, 498-99, 393 A.2d 13, 15 (1978) (third degree murder is the unlawful taking of a human life with malice but without the specific intent to kill); 18 Pa.C.S. § 2502(c). Next, appellant contends that trial counsel was ineffective for failing to object to the instruction by the trial court that appellant could be convicted of first-degree murder as an accomplice without having the specific intent to kill. The trial court instructed the jury on accomplice liability as follows: A defendant is guilty of a crime if he is an accomplice of another person who commits the crime.... He is an accomplice if, with the intent of promoting or facilitating the commission of the crime, he solicits, commands, encourages, requests the other person to commit it, or he aids, agrees to aid or attempts to aid the other person in planning or committing it____ You may find the defendant guilty of a crime on the theory that he was an accomplice, as long as you are satisfied beyond a reasonable doubt that the crime was committed and that the defendant was an accomplice of the person who committed it. N.T. 10/8/91 at 172-73. This language is almost identical to that which this Court approved in Commonwealth v. Thompson, 543 Pa. 634, -, 674 A.2d 217, 222-23 (1996). Therefore, trial counsel was not ineffective for failing to make a meritless objection. Commonwealth v. Manigault, 501 Pa. 506, 510, 462 A.2d 239, 241 (1983) (trial counsel will not be deemed ineffective for failing to raise a meritless claim). Next, appellant argues that trial counsel was ineffective for stipulating during the penalty phase that Officer Dukes was a police officer acting within the course of his duty, thereby unnecessarily conceding an aggravating circumstance. 42 Pa.C.S. § 9711(d)(1). However, the record reflects that trial counsel stipulated only that Officer Dukes was carrying a .38 caliber semi-automatic pistol and his police identification badge. N.T. 10/10/91 at 5-6. Therefore, this claim, belied by the record, is baseless. Next, appellant contends that trial counsel was ineffective for failing to object to the following comment by the prosecutor during his closing argument in the penalty phase of trial: And the last and in Miss Nixon’s most tragic circumstances, which her death demonstrates, is that during the commission of these murders a grave risk of death was encountered by other persons present, because in point of fact Miss Nixon suffered that fatal, grave risk. The bullet that was specifically intended — one of them intended to kill Officer Dukes killed her. That grave risk obtained for her and she is not with us today because of that. N.T. 10/10/91 at 50-51. Appellant contends that this argument violated Commonwealth v. Stokes, 532 Pa. 242, 615 A.2d 704 (1992), because it allegedly improperly argued that the mere fact that multiple killings occurred meant that a grave risk of death to others had occurred. However, appellant’s reliance on Stokes is misplaced. In Stokes, the trial court instructed the jury that, because the defendant had killed three people, they must find that the aggravating circumstance existed, even with regard to the victim who was shot when he was alone in a hallway. Id. at 259-61, 615 A.2d at 713-14. The Stokes Court found that aggravating circumstance (d)(7) “applies to situations where the defendant in the course of killing his particular victim acts in a manner which endangers the lives of others close in proximity to the intended or actual victim,” and that the mere fact that more than one person was killed does not automatically mean that other persons were endangered when someone was intentionally shot so as to prove aggravating circumstance (d)(7). Id. at 260, 615 A.2d at 713. Here, the trial court did not instruct the jury that it was required to find aggravating circumstance (d)(7) as a matter of law, as did the trial court in Stokes. Instead, this case involved only an advocate’s argument urging the jury that it should find that appellant created a grave risk of death to others when he and his co-conspirator fired shots into a crowd of approximately thirty people in a crowded bar, killing one of the people near the intended victim. Given that there was nothing improper about the prosecutor’s argument, which focused upon the risk created by appellant’s actions to everyone in the line of fire, not the mere number of victims, trial counsel was not ineffective for failing to object. Appellant’s final claim of ineffective assistance of counsel is that trial counsel was ineffective for failing to request a jury instruction under Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) that a life sentence means that appellant must spend his natural life in prison without the possibility of parole. However, Simmons was not decided until after the completion of appellant’s trial. Prior to Simmons, the law of this Commonwealth expressly prohibited juries from being informed that life meant life without parole. Commonwealth v. Christy, 540 Pa. 192, 217, 656 A.2d 877, 889, cert. denied, — U.S. —, 116 S.Ct. 194, 133 L.Ed.2d 130 (1995). Trial counsel will not be deemed ineffective for failing to anticipate a change in the law. Id. Furthermore, Simmons states that a jury must be informed that life means life without the possibility of parole only when the prosecutor injects concerns of the defendant’s future dangerousness into the proceedings. Simmons, supra, 512 U.S. at 155-57, 114 S.Ct. at 2190. Because the prosecutor here did not make appellant’s future dangerousness an issue in any sense, the instruction would not have been required under Simmons. Therefore, this claim has no merit. LEGALITY OF SENTENCE Finally, pursuant to 42 Pa.C.S. § 9711(h)(3), this Court has a duty to affirm the sentence of death unless we determine that: (i) the sentence of death was the product of passion, prejudice or any other arbitrary factor; (ii) the evidence fails to support the finding of at least one aggravating circumstance specified in subsection (d); or (in) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant. 42 Pa.C.S. § 9711(h)(3). After reviewing the record below, we conclude that the sentence imposed was not the product of passion, prejudice or any other arbitrary factor, but rather was based upon compelling evidence that appellant killed two patrons in the course of a robbery in a crowded bar. In addition, the evidence supports the finding of at least one aggravating circumstance specified in 42 Pa.C.S. § 9711(d). Here, the aggravating circumstances found by the jury were that appellant committed the killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6) (commission of a robbery); that in the commission of the offense, appellant had knowingly created a grave risk of death to another person in addition to the victim of the crime, 42 Pa.C.S. § 9711(d)(7); and that appellant had been convicted of another murder committed at the time of the offense in issue, 42 Pa.C.S. § 9711(d)(ll). Appellant’s own statement established that appellant and Tancemore entered Woody’s Playhouse bar with the intention of committing a robbery and that they took a substantial step in fulfilling that plan when appellant attempted to detain Keith Simmons in the restroom; several eyewitnesses testified that there were approximately thirty people in the bar when appellant and Tancemore began firing into the crowd; and appellant was convicted of two murders committed at the same time. Thus, the evidence supported each of these aggravating circumstances. Finally, in accordance with Zettlemoyer, supra at 63, 454 A.2d at 961, we are required to conduct a proportionality review of the sentence. This Court does not take lightly its statutory and constitutional duties and will conduct an independent evaluation of all cases decided since the effective date of the sentencing procedures under consideration (September 13,1978). This independent review mandated by 42 Pa.C.S.A § 9711(h)(3)(iii) will utilize all available judicial resources and will encompass all similar cases, taking into consideration both the circumstances of the crime and the character and record of the defendant in order to determine whether the sentence of death is excessive or disproportionate to the circumstances. Id. Although appellant does not challenge the proportionality of the sentence, as this Court has mandated, we have conducted our own proportionality review by independently examining similar cases, by reviewing the facts underlying the first degree murder, and by considering the sentencing data compiled by the Administrative Office of the Pennsylvania Courts (AOPC) pertaining to similar cases and conclude that the sentence of death imposed upon appellant is not excessive or disproportionate to the sentences imposed in similar cases. See Commonwealth v. Frey, 504 Pa. 428, 443, 475 A.2d 700, 707-08, cert. denied, 469 U.S. 963, 105 S.Ct. 360, 83 L.Ed.2d 296 (1984). Accordingly, we affirm the verdict and sentence of death imposed upon appellant by the Court of Common Pleas of Philadelphia County. NIX, Former C.J., did not participate in the consideration or decision of this case. . 42Pa.C.S. § 9711(h)(1). . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 903. . 18 Pa.C.S. § 3701. . The aggravating circumstances were that appellant committed the killing while in the perpetration of a felony (robbery), 42 Pa.C.S. § 9711(d)(6); that in the commission of the offense, appellant knowingly created a grave risk of death to another person in addition to the victim of the offense, 42 Pa.C.S. § 9711(d)(7); and that appellant had been convicted of another murder committed at the time of the offense at issue, 42 Pa.C.S. § 971 l(d)(l 1). The mitigating circumstance was that appellant had no significant history of criminal convictions, 42 Pa.C.S. § 9711(e)(1). . Tancemore was also identified by several witnesses in the bar who knew him by name. When police attempted to arrest Tancemore, he fled across rooftops to a house where he took two women hostage and held police at bay for several hours. Tancemore ultimately committed suicide with a nine millimeter semi-automatic handgun. A ballistics expert testified that bullets recovered from the ceiling of Woody’s bar had been fired from that handgun. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . This is the first of several misrepresentations of the record in appellant’s brief to this Court. Rule 3.3(a)(1) of the Rules of Professional Conduct provides that, "a lawyer shall not make a false statement of material fact or law to a tribunal^]” Appellant has also violated Pa.R.A.P. 2117 by failing to include in his brief a statement of facts, a table of citations, or references to the place where the issue was preserved below. He has also failed to provide any references to the places in the record where the issues arose, as required by Pa.R.A.P. 2119(c), for most issues raised. . Furthermore, although the prosecutor was not asked to articulate race-neutral reasons for the exercise of the peremptory challenges, the record demonstrates that ten of the thirteen jurors against whom the Commonwealth exercised peremptory strikes equivocated on the death penalty. Commonwealth v. Bond, 539 Pa. 299, 310, 652 A.2d 308, 313 (1995)(upholding as racially neutral strikes of juror who equivocated on death penalty). One juror stated that he believed that people have the right to carry concealed weapons despite laws to the contrary in this Commonwealth; one juror stated that he believed police officers might be inclined to lie; and one juror appeared confused, giving responses which did not bear any relation to the questions she was asked. . Despite the trial court’s express permission to do so, trial counsel did not ask any questions concerning the comments of any juror other than the six who were present in the hallway when the comment was made. . The two prospective jurors who testified that they heard another juror comment on his knowledge of the case both testified that there were only six other jurors present when the comment was made. . The prosecutor used a peremptory strike, defense counsel used two peremptory strikes and two jurors were excused for cause unrelated to the comments. . Appellant further contends that trial counsel was ineffective for failing to move for a mistrial under Pa.R.Crim.P. 1118(b), and that the trial court erred in not declaring a mistrial sua sponte pursuant to that rule, which provides: When an event prejudicial to the defendant occurs during trial only the defendant may move for a mistrial; the motion shall be made when the event is disclosed. Otherwise, the trial judge may declare a mistrial only for reasons of manifest necessity. Pa.R.Crim.P. 1118(b). At the outset, this claim was not raised in appellant’s statement of matters complained of on appeal and is therefore waived. Pa.R.A.P. 1925(b). Moreover, the trial court took steps to ensure that no member of the venire who may have been tainted was seated on the jury. Appellant fails to explain how he was prejudiced by counsel’s failure to request a mistrial where no tainted juror was on the final jury. Finally, no manifest necessity existed requiring the trial court to declare a mistrial sua sponte. Compare Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974) (manifest necessity required trial court to sua sponte declare a mistrial where court learned mid-trial that tipstaff who was serving jury was victim’s father). Nonetheless, we will address the issue under the relaxed waiver rule of Zettlemoyer, supra at 26, 454 A.2d at 942. . A review of the record of the suppression hearing demonstrates that appellant testified that, while he had been in a bar on Christmas Eve, he did not know the name of the bar or where it was located. . Trial counsel failed to object to this line of questioning and therefore the claim is technically waived. Pa.R.A.P. 302(a). While we have recognized that waiver rules are often relaxed in capital cases, Zettlemoyer, supra at 26-27 n. 3, 454 A.2d at 942 n. 3, we have held in other capital cases that issues not raised before the trial court were waived. See Commonwealth v. Williams, 541 Pa. 85, 92, 660 A.2d 1316, 1320 (1995), and cases cited therein. This Court does not countenance trial counsel intentionally sitting by silently at trial only later to complain of trial errors on appeal after an unfavorable verdict. That a matter is a death penalty case in no way relieves trial counsel of the duty to raise appropriate contemporaneous objections at trial to allow the trial court to cure any alleged error as well as preserve issues for appellate review. Nonetheless, we will address the issue under the relaxed waiver rule of Zettlemoyer, supra at 26, 454 A.2d at 942. . The handgun which the witness initially identified as Greene’s was the nine millimeter semi-automatic with which Gregory Tancemore committed suicide. This encounter was corroborated by a rebuttal witness for the Commonwealth who observed the misidentification. N.T. 10/7/91 at 260-61. . Appellant further contends that the Commonwealth should not have been permitted to call a rebuttal witness to testify to Jones’ prior misidentification of the murder weapon or to question Jones regarding whether he had discussed the case with other witnesses in violation of a sequestration order. Although appellant does not develop these arguments, both the cross-examination and the rebuttal witness were also permissible to impeach Jones’ credibility. . A bench warrant was not requested pursuant to 42 Pa.C.S. § 5904(d) for failure to appear in response to a subpoena. . Appellant raised no objections to the trial court’s jury instructions and the following issue are therefore waived. We will nevertheless address the issues in order to avoid future claims of ineffective assistance of appellate counsel. Zettlemoyer, supra. . Not only did appellant fail to object to this claim at trial, but it was not raised in his statement of matters complained of on appeal and is therefore also waived under Pa. R.A.P. 1925(b). . Appellant also claims that the trial court erred in failing to instruct the jury on the elements of conspiracy to commit murder, with which appellant was charged. However, as the court did instruct the jury on the elements of conspiracy generally and on the elements of murder, this claim is also meritless. . Moreover, since appellant himself testified that he was in the bar with a handgun at the time of the murders, any error in failing to give the desired instruction was harmless. . Once again, appellant waived this issue at trial by failing to object to the charge. However, we will address the claim under the relaxed waiver rule of Zettlemoyer, supra. . The trial court charged the jury as follows: Your verdict must be a sentence of death if you unanimously find, that is all of you find at least one aggravating circumstance and no mitigating circumstances. Or, if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances. If you do not all agree on one or the other of these findings, then the only verdict that you may return is a sentence of life imprisonment. The Commonwealth must prove any circumstances beyond a reasonable doubt.... By contrast, the defendant must prove any mitigating circumstances; however, he only has to prove it by a preponderance of the evidence, that is, by the greater weight of the evidence. N.T. 10/10/91 at 76-77. This charge was substantially similar to ones which have recently been found by this Court to be proper. See, Commonwealth v. Murphy, 540 Pa. 318, 336, 657 A.2d 927, 936 (1995); Commonwealth v. Banks, 540 Pa. 143, 150, 656 A.2d 467, 470, cert. denied, -U.S. -, 116 S.Ct. 113, 133 L.Ed.2d 65 (1995). Therefore, even were this claim developed, we find no error. . This claim has also been waived due to appellant’s failure to object. However, we will address the claim under the relaxed waiver rule of Zettlemoyer, supra. . This is yet another claim which has been waived due to appellant's failure to object. Nonetheless, we will address the issue under the relaxed waiver rule of Zettlemoyer, supra at 26, 454 A.2d at 942. . Appellant’s character witnesses were his mother, his sister, two aunts, two uncles, a cousin, his grandmother, the mother of his child, a friend of his mother’s and his tax accountant. The testimony of one uncle and the mother’s friend was stricken because the witnesses did not have any knowledge of appellant’s reputation for truthfulness in the community but rather testified to their own opinions. N.T. 10/7/91 at 240-442; 10/8/91 at 38. . Appellant is represented by different counsel in his appeal to this Court. Therefore, these claims of trial counsel's ineffectiveness are properly raised. Commonwealth v. McBee, 513 Pa. 255, 261, 520 A.2d 10, 13 (1986) (generally, counsel cannot raise his own ineffectiveness on appeal). . The six-hour rule was set forth in Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977), wherein this Court stated that if an accused is not arraigned within six hours of arrest, any statement obtained after arrest but before arraignment is per se inadmissible. . The prosecutor made several brief references to Tancemore’s suicide in his opening statement while telling the jury what evidence the Commonwealth would present over the course of the trial. N.T. 10/3/91 at 16, 22-24. Essentially, his comments were that the Commonwealth would present evidence that, when police attempted to arrest Tancemore several days after the murders, Tancemore took several hostages and, following a stand-off, killed himself with the same weapon which he fired at the bar on the night of the murders, and that the weapon itself as well as projectiles fired from that weapon and recovered from the scene of the murders would be admitted into evidence. Because the Commonwealth presented evidence concerning Tancemore’s suicide, N.T. 10/4/91 at 152-61, it was not improper for him to refer to that evidence in his opening statement. . Appellant failed to raise this claim in his statement of matters complained of on appeal, and it is therefore waived under Pa.R.A.P. 1925(b). We will nevertheless address it under the relaxed waiver rule of Zettlemoyer, supra. . At the beginning of the jury instructions, the trial court instructed the jury that first-degree murder required the specific intent to kill. N.T. 10/8/91 at 158. . Appellant cites to the trial court's charge on second-degree murder, which appears at N.T. 10/8/91 at 158-65, in support of this argument. Appellant does not cite to the charge on accomplice liability, which appears later in the transcripts. . The jury did not find as an aggravating circumstance that Officer Dukes was acting within the course of his duty. Therefore, there was no prejudice that could give rise to a claim of ineffectiveness. . Once again, appellant has raised a claim which he did not include in his statement of matters complained of on appeal. While this claim is therefore waived under Pa.R.A.P. 1925(b), we will nonetheless address it under Zettlemoyer, supra, in order to avoid future claims of ineffective assistance of counsel. . The Commonwealth introduced evidence that appellant had created a grave risk of death to the numerous other patrons in the bar and therefore made this argument urging the jury to find that an aggravating circumstance under 42 Pa.C.S. § 9711(d)(7) existed. . Appellant further argues that the prosecutorial misconduct was exacerbated by the trial court’s failure to instruct the jury on this aggravating circumstance beyond merely reading the language of the relevant aggravating circumstance to the jury. As discussed above, the prosecutor committed no misconduct. Moreover, this Court has held that reading the language of the statute is sufficient instruction on aggravating circumstances. Commonwealth v. Morales, 508 Pa. 51, 71, 494 A.2d 367, 377-78 (1985); Commonwealth v. Beasley, 504 Pa. 485, 499, 475 A.2d 730, 738 (1984). . Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (1994) (judgment of sentence of death affirmed where jury found as aggravating circumstances that the defendant committed the killing while in the perpetration of a robbery and that appellant had been convicted of another murder committed at the time of the offense at issue since he killed two people and as mitigating circumstances that the defendant had no significant history of prior criminal convictions, that the defendant was under extreme mental or emotional disturbance, the age of the defendant and an unspecified circumstance under the catchall provision); Commonwealth v. Lambert, 529 Pa. 320, 603 A.2d 568 (1992) (judgment of sentence of death affirmed where jury found as aggravating circumstances that the defendant committed the killing while in the perpetration of a robbery of a bar, that appellant had created a grave risk of death to someone other than the victim when he fired a gun in a crowded bar, and that appellant had been convicted of another offense for which a sentence of life imprisonment or death was imposable since he killed two patrons of the bar and as mitigating circumstances that the defendant had no significant history of prior criminal convictions). . Within ninety days of the date the sentence of death is upheld by this Court, the Prothonotary of this Court is directed to transmit to the Governor’s office the full and complete record of the trial, sentencing hearing, imposition of sentence and review by the Supreme Court pursuant to 42 Pa.C.S. § 971 l(i).

JOHNSON, Judge: We are asked to decide whether a psychiatrist who treats a child for alleged sexual abuse owes a duty of care to the parents of that child where the psychiatrist negligently diagnoses and treats the child and then, based on that misdiagnosis, subsequently embarks upon a course of action that directly affects both the child and the parents, as the alleged abusers. This is an issue of first impression. We have considered the competing policies involved, the case law of Pennsylvania and other jurisdictions, and the particular circumstances of this case. In doing so, we must conclude that, despite the absence of a psychiatrist-patient relationship between the psychiatrist and parents in this case, the psychiatrist owed them a duty of care because the psychiatrist’s actions extended well-beyond the psychiatric treatment of the child. Further, after reviewing all of the parties’ issues in this cross-appeal, we affirm the judgment in all respects. Nicole Lynn Althaus was bom on April 10, 1975, to Richard and Renee Althaus (the Althauses), Beginning in 1990, a series of catastrophic illnesses struck the Althaus family when Renee was diagnosed with skin and breast cancer. Richard’s mother was then diagnosed with diabetes and pancreatic cancer, from which she eventually died. As a result, Nicole’s emotional and psychological well-being began to deteriorate. Nicole confided this information to one of her teachers, Priscilla Zappa, and they became quite close. Zappa assisted Nicole in calling a cancer support hotline to provide Nicole with further emotional support during this time. Nicole then spoke to Connie Lap-pa, who was coincidentally Renee’s counselor in a cancer support group at Magee Women’s Hospital. After several phone conversations, Nicole confided in Lappa that her father had touched her inappropriately. Lappa then reported Nicole’s allegations of abuse to the Allegheny County Children and Youth Services (CYS). CYS then caused Nicole to be removed from her parents’ home. CYS further referred the matter to the Mt. Lebanon Police Department which arrested Richard Althaus and charged him with sexually abusing Nicole. Subsequently, Dr. Susan Nathan, a clinical psychologist, referred Nicole to Dr. Judith Cohen and the Child and Adolescent Sex Abuse Clinic of the University of Pittsburgh Western Psychiatric Institute and Clinic (WPIC). At trial, Dr. Cohen testified at length about the clime’s role in treating sexually abused children. Dr. Cohen stated that the clinic was a treatment program and did not provide forensic or investigative evaluations. N.T., December 12, 1994, at 16-18. She further stated that the determination of child abuse was made before the child came for treatment and, to that extent, the clinic relied “on the investigations provided by [CYS] and/or forensic evaluations done by independent evaluators of Family Intervention Center.” Id. at 17-18. In accordance with her practice, Dr. Cohen did not make any determination about the truth of Nicole’s allegations. Instead, Dr. Cohen relied on the conclusions made by CYS and Dr. Nathan that Nicole was sexually abused. Dr. Cohen accepted this determination despite the fact that Dr. Mary Carrasco, a physician who examined Nicole for physical signs of abuse, expressed her concern to Dr. Cohen about some of Nicole’s allegations. Dr. Carrasco informed Dr. Cohen that Nicole had made disturbing allegations for which Dr. Carrasco had found no supporting physical evidence. Dr. Cohen stated that she was not surprised that there was no physical findings since she, too, was somewhat skeptical about Nicole’s allegations regarding ritualistic abuse. Id. at 38. However, Dr. Cohen’s skepticism did not affect her acceptance that Nicole was sexually abused. She also made no independent investigation regarding the reports made by Nicole to other individuals. As a result, Dr. Cohen treated Nicole as though she were suffering from post-traumatic stress disorder and depression secondary to sexual abuse. As Nicole progressed through therapy, her stories became increasingly outlandish, including not only sexual abuse but also ritualistic torture and the murder of several babies that Nicole claimed to have had via caesarian section. Her allegations of abuse widened to include all members of her immediate family, coworkers of her father, and eventually strangers. Consequently, Richard Althaus was arrested three times and Renee was arrested twice during the course of Nicole’s treatment with Dr. Cohen. Nevertheless, Dr. Cohen steadfastly refused to evaluate the credibility of Nicole’s statements throughout treatment, despite her awareness of the criminal proceedings against the Althauses and the fact that many of Nicole’s allegations of abuse could not be true. While Dr. Cohen was concerned about these fantastical allegations, Dr. Cohen generally avoided direct confrontation with Nicole because of her concern that Nicole would no longer trust her and because she feared that Nicole would make even more of such allegations. During Nicole’s treatments, Dr. Cohen refused input from the Althauses, as well as Dr. Alan Axelson, a child psychiatrist retained by the Althauses, and Dr. Hilda Schoor-Ribera, Renee Althaus’s cancer support therapist. Despite Dr. Cohen’s insistence that Nicole’s treatment remained strictly therapeutic, she was actively involved in the criminal proceedings against Nicole’s parents and the continued placement of Nicole in a foster home. At a meeting with members of the police investigation team, Dr. Cohen refused to comment on Nicole’s credibility or to discuss ways to detect if a child has been abused; she further informed the officers that it was their responsibility to determine whether Nicole was abused. N.T., supra, at 76-77. Yet, Dr. Cohen attended several preliminary hearings related to the criminal proceedings against the Althauses and testified under oath that she believed that Nicole had been abused. Id. at 197. At Juvenile Court, she testified that Nicole’s continued placement in foster care with Zappa was appropriate, despite Dr. Axelson’s concern that Nicole’s relationship with Zappa was unhealthy. N.T., November 22, 1994, at 80-82; December 5, 1994, at 76-77. Dr. Cohen explained her presence at the criminal proceedings stating that therapeutic treatment extended to providing emotional support to Nicole while she testified to matters regarding her abuse despite Dr. Cohen’s knowledge that parts of Nicole’s testimony at these proceedings were untrue. N.T., December 12, 1994, at 72. When the criminal case against Nicole’s parents came before the Honorable Robert E. Dauer, Judge Dauer ordered, over Dr. Cohen’s objection, an independent psychiatric examination of Nicole. The prosecution and the Althauses’ counsel agreed to retain Dr. Marshall Schecter. Dr. Schecter retained two additional psychologists, and psychological testing was performed on Nicole, Richard and Renee Al-thaus. Dr. Schecter interviewed Nicole, Richard, Renee, Dr. Cohen and numerous health care professionals who had provided care to Nicole. He spoke to Nicole’s grandmother, her brother, and Renee’s therapist, Dr. Schoor-Ribera. Dr. Schecter reviewed all of Nicole’s scholastic records and writings, and spoke with her at great length. Based on his extensive evaluation of Nicole, Dr. Schecter testified at the hearing that, in his opinion, Nicole suffered from a borderline personality disorder. He stated that he did not believe Nicole was ever abused and that her allegations of abuse stemmed from Nicole’s inability to distinguish fact from fantasy. Dr. Schecter further testified that Ni- ’ cole’s inability to distinguish truth from fantasy rendered her incompetent to testify. Dr. Cohen also testified at Nicole’s competency hearing. Initially, she stated that, based on her therapeutic treatment of Nicole, she was in a better position than Dr. Schec-ter to assess Nicole’s competence. Id. at 106. During cross-examination, however, Dr. Cohen conceded that many of Nicole’s allegations were untrue, and that, at times, Nicole could not distinguish fact from fantasy. When Judge Dauer informed Dr. Cohen that the ability to distinguish fact from fantasy was a condition precedent to testifying under oath, Dr. Cohen advised Nicole not to testify. Consequently, Nicole did not testify and the Commonwealth withdrew the criminal charges filed against the Althauses. The Althauses and their daughter Nicole then brought the present negligence action against Dr. Cohen and WPIC, on the theory that Dr. Cohen negligently diagnosed and treated Nicole and that this negligence exacerbated Nicole’s undiagnosed borderline personality disorder. The Althauses farther contended that Dr. Cohen owed them a duty of care because of her awareness that many of Nicole’s allegations could not be true and because of her knowledge that these allegations were the basis of the criminal proceedings against them. The case was submitted to a jury, which returned verdicts in favor of both Nicole and her parents. Both parties filed post-trial motions that the court denied. This appeal by Dr. Cohen and WPIC and cross-appeal by the Althauses and their daughter Nicole followed. On appeal, Dr. Cohen and WPIC argue that the trial court erred when it (1) held that a psychiatrist treating a child for alleged sexual abuse owes a duty of care to non-patient parents, as the alleged abusers and (2) refused to instruct the jury on both the Althauses’ and their daughter Nicole’s alleged contributory negligence. In their cross-appeal, the Althauses and their daughter Nicole argue that the trial court erred when it: (1) concluded that the good faith immunity provisions of the child protective services law, 23 Pa.C.S. § 6318, precluded the Althauses from using Dr. Cohen’s testimony from the various legal proceedings for the purpose of supporting their allegations of negligence; (2) precluded the Althauses from submitting testimony relating to the results of Mr. Althaus’s lie detector test and the fact that Dr. Cohen was aware that he had passed it; (3) refused to instruct the jury on the issue of punitive damages; and (4) concluded that Nicole Althaus was not entitled to delay damages. We first address Dr. Cohen’s and WPIC’s argument that Dr. Cohen owed no duty of care to the Althauses because of the nonexistence of a psychiatrist-patient relationship between them. Initially, we note that while we find no error with the trial court’s imposition of a duty in this instance, we do so because of the particular circumstances of this case. In his Dissenting Opinion, our distinguished colleague, Judge Schiller, seems to pose the issue in a formulation that we are not, here, trying to answer. We do not conclude, as Judge Schiller charges, that a psychiatrist who treats a child for alleged sexual abuse owes an absolute duty of care to the parents of that child for negligent psychiatric treatment of that child. If that were all that happened here, we would not find that Dr. Cohen owed a duty to the Althauses. Dr. Cohen’s conduct, however, extended far beyond the negligent treatment of Nicole Althaus. Here, Dr. Cohen actively participated in the criminal proceedings against the Althauses. She attended several preliminary hearings at Nicole’s request and remained passive as Nicole made outlandish allegations against her parents and others—allegations that Dr. Cohen knew were not true. Though she recognized that, at times, Nicole could not distinguish fact from fantasy, she nonetheless allowed Nicole to testify to these allegations and, in doing so, essentially validated Nicole’s unwittingly false testimony. Accordingly, because Dr. Cohen’s actions extended well-beyond the psychiatric treatment of Nicole, we conclude that Dr. Cohen owed a duty of care to the Althauses and that the lack of a psychiatric-patient relationship does not provide blanket immunity to Dr. Cohen. Pennsylvania courts have set forth the basic elements of a negligence claim as follows: 1. A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on [the actor’s] part to conform to the standard required. 3. A reasonably close eausal connection between the conduct and the resulting injury.... 4. Actual loss or damage resulting to the interests of another. Fennell v. Nationwide Mutual Fire Ins., 412 Pa.Super. 534, 539, 603 A.2d 1064, 1066-67 (1992), citing Prosser, Law of Torts, § 30, at 143 (4th ed.1971). Whether a legal duty exists under a set of facts is a question of law. Huddleston v. Infertility Center of America, Inc., 700 A.2d 453, 457 (Pa.Super.1997). Our duty analysis depends on many factors and is “necessarily rooted in public policy considerations, i.e., our ideas of history, morals, justice, and society in general in determining where the loss should fall.” Gardner v. Consolidated Rail Corp., 524 Pa. 445, 455, 573 A.2d 1016, 1020 (1990); see also Troxel v. A.I. Dupont Institute, 450 Pa.Super. 71, 80-84, 675 A.2d 314, 319-20, appeal denied, 546 Pa. 668, 685 A.2d 547 (1996). Once we determine that a legal duty exists, we impose liability only in those instances where the harmful consequences of the defendant’s conduct could reasonably have been foreseen and prevented by the exercise of reasonable care. Mohler v. Jeke, 407 Pa.Super. 478, 595 A.2d 1247, 1252 (1991). Our discussion of this issue begins with cases of this Commonwealth involving communicable diseases where both our supreme court and this Court have found physicians liable to individuals outside the physician-patient relationship. DIMarco v. Lynch Homes—Chester County, Inc., 525 Pa. 558, 583 A.2d 422 (1990); Troxel, supra. We find the negligence analysis set forth in these cases applicable to the facts presented before us. In DiMarco, supra, a hepatitis patient was advised by her physician that she could resume sexual activity in six weeks without fear of infecting her partner. The woman waited eight weeks, but her partner nevertheless contracted hepatitis. Id. at 560, 583 A.2d at 423. Because of the nature of the disease, the court stated that a patient must be advised to take certain precautions. The court noted that such precautions are not for the benefit of the patient; rather, precautions are for the benefit of third parties. Our supreme court, in imposing a duty on the physician to the partner, rejected the notion that the lack of a physician-patient relationship barred a third party from maintaining a cause of action against a professional in instances where the policies limiting a professional’s liability “pale in comparison to the harm at issue.” Id. at 562 n. 1, 583 A.2d at 425 n. 1. Rather: If a third person is in that class of persons whose health is likely to be threatened by the patient, and if erroneous advice is given to that patient to the ultimate detriment of the third person, the third person has a cause of action against the physician, because the physician should recognize that the services rendered to the patient are necessary for the protection of the third person. Id. at 562, 583 A.2d at 424-25. See also Troxel, supra (physician who treated mother and child for cytomegalovirus owed duty to third persons to inform patient about contagious nature of disease to prevent its spread to foreseeable persons, which included plaintiff, who had been exposed to virus while pregnant and, as a result, her child had died shortly after birth). No Pennsylvania appellate court has ever addressed whether a psychiatrist owes a duty of care to a patient’s family where the psychiatrist misdiagnosed the patient as having been sexually abused by a family member. However, the District Court for the Eastern District of Pennsylvania has visited this issue. In Turnan v. Genesis Associates, 894 F.Supp. 183 (E.D.Pa.1995), the parents of an adult child sued their daughter’s therapists on a negligence theory when their daughter falsely stated that the parents had committed incest and murder, and lead a satanie cult. The court eventually dismissed the negligence claim because the parents failed to allege physical injury. Id. at 189. However, the court began its discussion by concluding that the therapist in this instance owed a duty to the patient’s parents. Id. at 188. After reviewing Pennsylvania law, the court stated that “although a plaintiff generally must show a professional relationship to maintain a claim for professional negligence, the absence of such a relationship does not necessarily bar a plaintiff’s recovery where the defendant’s negligence causes substantial harm to an identifiable and readily determinable class of plaintiffs.” Id. As these cases suggest, the absence of a physician-patient relationship between a plaintiff and a defendant-physician does not bar a cause of action based on negligence. Rather, in determining whether a physician owes a duty to persons outside the physician-patient relationship under a particular set of facts, a court should carefully weigh any policy considerations that might exist and limit liability to those instances where the harmful consequences of the physician’s actions could reasonably have been foreseen and prevented by the exercise of reasonable care. In other words, traditional principles of negligence should be employed to determine whether a physician owes a duty outside of the physician-patient relationship. Moreover, several cases decided in other jurisdictions recognize such a duty. We are persuaded by the reasoning of the Supreme Court of. New York in Caryl S. v. Child & Adolescent Treatment Services, Inc., 161 Misc.2d 563, 614 N.Y.S.2d 661 (N.Y.Sup.Ct.1994), aff'd, 238 A.D.2d 953, 661 N.Y.S.2d 168 (1997). In that case, the court held that a therapist owed a duty of care to individuals not considered part of the patient-therapist relationship. Following a visit with her grandparents, four-year-old Amanda told her mother, Cheryl, that Caryl, Amanda’s grandmother, placed a stick in her vagina, causing it to bleed. Cheryl took Amanda to the hospital for an examination, but no physical evidence of sexual abuse was observed. Cheryl then related the incident to the police and to the Child Protection Services. Cheryl also called the Child & Adolescent Treatment Services, Inc. (CATS) regarding counseling for Amanda. Id. 614 N.Y.S.2d at 662. At CATS, Amanda was principally seen by therapist Patricia Jones. Jones testified in Family Court about Amanda’s alleged sexual abuse by Caryl. After interviewing Amanda’s grandparents and determining that Ca-ryl’s portrayal of the events was not credible, Jones recommended to Amanda’s family court guardian that she have only supervised visits with her grandmother until Caryl “exhibit[s] some responsibility for her actions and obtain[s] some counseling for whatever emotional problems she may have.” Id. at 663. Jones was subsequently deposed in the grandparents’ Family Court action to obtain visitation with Amanda, and testified at that trial. Id. Caryl and her husband petitioned the court to recover for damages for injuries suffered by them as a result of Jones’s acts. In their first cause of action, plaintiffs contended that Jones “ ‘negligently, carelessly and recklessly reached the false conclusion that ... C[aryl] sexually abused A[manda],’ and thereafter negligently, carelessly and recklessly informed others of that conclusion.” Id. at 663. The plaintiffs maintained that a duty to them resulted from “the fact that it was reasonably foreseeable that when [Jones] negligently formed an opinion that Caryl S. had sexually abused her granddaughter Amanda, and when that negligently formed opinion was negligently communicated to others, the relationship between plaintiffs and Amanda would be ‘adversely affect[ed]’ and plaintiffs would be harmed.” Id. at 664. The court began its inquiry by examining whether the defendants owed a duty to the plaintiffs. It noted that, in recent years, society had made much progress in exposing child abuse, but that, at the same time, efforts to root out child abuse had caused the suffering of many innocent parents. Id. at 665. The court then stated that, given the foregoing considerations: [I]t should be readily apparent that when a professional becomes involved in a case where child sexual abuse is suspected, care must be taken in investigating and evaluating such a claim and in reaching the conclusion that such abuse did take place. Where the professional is involved in a therapeutic relationship with the child, it requires little imagination to see the harm that might result from a negligently and erroneously formed conclusion that sexual abuse had occurred, with subsequent treatment based on that ‘misdiagnosis.’ In such a situation there would be no dispute that a cause of action for malpractice (or ordinary negligence) would exist on the child’s behalf against the professional.... Id. at 666. The court then addressed what duty a therapist owed to those outside the therapist-patient relationship. In a situation such as the one presented before it, the court stated that: [A] determination must initially be made by the professional that sexual abuse in fact occurred, and this determination is made not only about the child but also about the suspected abuser. When, based upon that determination, a course of action is thereafter embarked upon by the professional, it is intended to, and necessarily does, affect both the child and his or her abuser, especially where a family relationship is involved. A suspected abuser has the right to a reasonable expectation that such a determination, touching him or her as profoundly as it will, will be carefully made and will not be reached in a negligent maimer. Id. The court then concluded that a therapist owed a duty to one accused, even if outside the therapy relationship, when the therapist makes the determination of sexual abuse and pursues a course of action aimed at shaping the conduct of both the alleged victim and the accused. Id. at 667. It further noted that such a duty was limited to specifically foreseeable parties. Id. A similar case was recently decided in California. In James W. v. Superior Court, 17 Cal.App.4th 246, 21 Cal.Rptr.2d 169 (1993), the court concluded that California’s Child Abuse and Neglect Reporting Act did not protect a therapist who was sued by the victim and her family for allegedly abusing the therapeutic relationship and falsely accusing the father of molestation. In James W., eight-year-old Alicia complained of pain when she went to the bathroom one morning. Her family took her to the hospital where the staff determined that she had been raped and sodomized and filed a report pursuant to the Child Abuse and Neglect Reporting Act. Alicia stated that a man had come through her bedroom window and hurt her. However, a hospital staff member and a detective accused Alicia’s father of the rape. Id. at 170-71. The Department of Social Service placed Alicia in temporary foster care and referred the family to a private family counselor. At the first family session, the counselor accused the father of the abuse. For over a year and a half, however, Alicia insisted that her father was not the assailant. Both her foster parents and the counselor continuously pressured Alicia into stating that her father was the perpetrator. During this time, Alicia was completely cut off from her family despite court ordered weekly visitation because the foster parents and the counselor refused to cooperate. Eventually, coached by her foster parents and the counselor, Alicia testified against her father in court. Alicia’s father was arrested and charged with raping and sodomizing Alicia. Id. at 171-72. At the same time, Alicia’s foster parents moved to permanently adopt her. In the interim, however, the results of forensic testing showed that Alicia’s father could not have been the perpetrator. Consequently, the adoption proceedings were halted, all charges against the father were dropped, steps were taken to reunite Alicia with her family, and the court removed the counselor as Alicia’s therapist. Id. at 172. When Alicia’s family subsequently filed a civil complaint against the counselor, the counselor argued that she had immunity under the Child Abuse and Neglect Reporting Act. The court rejected this argument stating that “[t]he Act is a reporting statute and its protection runs to reporting: it does not apply to activities that continue more than two years after the initial report of abuse by parties who are not acting as reporters.” Id. at 174. The court concluded that the Act was satisfied when hospital staff reported the incident. Id. The court further stated that its distinction between the initial reporters and those who voluntarily assume roles once the report is filed is a “healthy” one: It discourages family counselors and foster parents from taking on roles they are not adequately prepared to perform. When private citizens become deeply enmeshed in investigatory or prosecutorial activities and take on functions of the police, the [Department of Social Services], county counsel or district attorney, the system suffers a loss of objectivity, independence, balance and accountability. The combination of private players and public officials all on one side performing the same roles, albeit for different reasons, has a momentum of its own which can, in its own way, overwhelm any family. Id. at 176. The court also concluded that where a counselor abuses “a therapeutic relationship with family members, causing injury to the children, emotional distress to the parent, and disrupting the parent-child relationship, they breach their duties of care to the parent as well as the children and are hable to both.” Id. at 177. Finally, in Montoya v. Bebensee, 761 P.2d 285 (Colo.Ct.App.1988), the Colorado Court of Appeals reinstated a father’s claim against his daughter’s therapist. With no physical evidence of sexual abuse, therapist Barbara Bebensee, after two perfunctory visits with the daughter, concluded that the daughter had been sexually abused by her father. Her conclusion was contrary to both a social worker’s report of the events related to her by the child, and to the determination made by a psychologist to whom Bebensee had referred the child for a second opinion. Id. at 286-87. At a hearing related to father’s visitation rights, Bebensee testified that there was no doubt that the father had sexually abused his daughter. However, the court appointed psychologist filed an affidavit with the court stating that he had serious concerns about Bebensee’s actions, in part because “psychological testing of the child disclosed that she so confused fantasy with reality that she could report fantasy as fact and use appropriate body language in doing so.” The affidavit also noted that the therapist did no psychological testing on the child; she did not investigate the reports the child made to other parties as to whether they were consistent or inconsistent with the statements made to her; she refused to speak to the father before diagnosing him as the child abuser; she disregarded reports of other professionals; and, she advised the mother to limit visitation rights. Id. at 287-88. Based on these facts, the court concluded that Bebensee owed a duty of care to the father: We reach this conclusion after considering both the great social utility of having therapists make reports of suspected child abuse and the significant risk of substantial injury that may occur to one who is falsely accused of being a child abuser. Certainly, the harm that may result from negligent false accusations is readily foreseeable, while the burden of care placed upon the therapists is no greater than the duty that substantially all professionals are required to meet. Thus, a mental health care provider owes a duty to any person, who is the subject of any public report or other adverse recommendation by that provider, to use due care in formulating any opinion upon which such a report or recommendation is based. Id. at 288-89. These cases illustrate that, before reaching the conclusion that a therapist owes a duty to the alleged abuser, a court must balance various policy considerations. A court must consider the great social benefit of uncovering sexual abuse and, at the same time, recognize that determinations of sexual abuse necessarily affect both the victim and the alleged abuser, and that such a determination should be carefully made and should not be reached in a negligent manner. Specifically, the courts in these cases have examined: the injury that may occur as a result of being labeled a child abuser; the concern that many therapists become too involved in legal proceedings against the alleged abuser; the devastating affect a misdiagnosis can have on the family relationships; and, the detrimental effect of a misdiagnosis on the child. After finding that a therapist owed a duty to the parents (or grandparents), the court, in each instance, concluded that the therapist failed to exercise reasonable judgment in reaching the conclusion that sexual abuse took place and, as a result, the alleged abusers suffered foreseeable harm. Thus, these courts utilized a traditional negligence analysis in reaching the merits of each claim. We find the analysis in these cases provide a workable approach in determining whether a therapist owes a duty of care to an alleged child abuser in Pennsylvania. Moreover, it is wholly consistent with the approach taken by courts in this jurisdiction in determining whether a physician owes a duty to individuals outside the physician-patient relationship in the context of communicable diseases. DiMarco, swpra; Troxel, supra In other words, where the policies limiting a professional’s liability “pale in comparison to the harm at issue,” the lack of a psychiatrist-patient relationship should not bar recovery. DiMarco, supra. Accordingly, based on the above case law and after considering the competing policies involved, we conclude that Dr. Cohen owed a duty of care not only to Nicole but also to the Althauses, because (1) Dr. Cohen specifically treated Nicole for parental sexual abuse; (2) the Althauses were directly affected by Dr. Cohen’s failure to properly diagnose and treat Nicole; (3) Dr. Cohen was both aware that criminal proceedings were initiated against the Althauses as a result of Nicole’s allegations and also actively participated in them; and (4) it was reasonably foreseeable that the Althauses would be harmed by Dr. Cohen’s negligent diagnosis. The facts of this case support such a conclusion. Dr. Cohen repeatedly stated that she was not required to make any credibility determinations regarding Nicole’s allegations. In doing so, she made no investigation of the reports made by Nicole to other individuals to determine whether Nicole’s statements were consistent or inconsistent with the statements made to her; she completely disregarded the reports of other professionals; she never spoke to the Althauses; and she never directly challenged Nicole regarding her outlandish allegations of abuse despite the fact Dr. Cohen knew that they could not be true. Yet, at the same time, she was constantly aware of the criminal proceedings initiated against the Althauses and, in fact, was actively involved in them. On numerous occasions, Dr. Cohen testified at court proceedings on Nicole’s behalf and at other times, accompanied Nicole to preliminary hearings where she heard Nicole testify against her parents to facts which she knew could not be true. She further acknowledged that she occasionally doubted Nicole’s allegations and conceded at Nicole’s competency hearing that Nicole at times could not distinguish fact from fantasy. Thus, we cannot conclude that Dr. Cohen’s actions were solely part of her therapeutic treatment of Nicole; rather, Dr. Cohen became deeply enmeshed in legal proceedings against the Althauses and, in doing so, placed herself in a role that extended well-beyond the therapeutic treatment context. It is clear that Dr. Cohen was not adequately prepared for such a role as she fully admitted that she never performed a diagnostic evaluation on Nicole. She never made any determination regarding Nicole’s allegations and relied on the conclusion of others that Nicole had been sexually abused. However, because she chose to take on this active role, the Althauses, as alleged child abusers, had a reasonable expectation that Dr. Cohen’s diagnosis of Nicole, affecting them as it did, would be carefully made and would not be reached in a negligent manner. Further, Dr. Cohen’s negligent treatment of Nicole combined with her subsequent course of action against the Althauses resulted in foreseeable harm to the Althauses, as specifically identified parties. In reaching this conclusion, we reject the approach taken by the Texas Supreme Court in Bird v. W.C.W., 868 S.W.2d 767 (Tex.1994). In Bird, the mother, claiming her son had reported that “daddy” had sexually abused him, sought counselling for her son. W.C.W. v. Bird, 840 S.W.2d 50, 51 (Tex.Ct.App.1992), rev’d, 868 S.W.2d 767 (Tex.1994). The therapist briefly examined the boy and interviewed the mother and her common law husband. The child told the therapist that “daddy” had abused him, but the therapist later admitted that she did not know if “daddy” was the child’s biological father or his mother’s common law husband. Despite her doubts, the therapist signed an affidavit stating that the child had been abused by his biological father. After further investigation, a court-appointed therapist later concluded after lengthier interviews that the boy had not been abused by his biological father. Id. at 51-52. In rejecting the claim that the therapist owed a duty to persons outside of the therapeutic relationship, the Texas Supreme Court stated that although the risk of injury from misdiagnosis is certain to occur, there is great social utility in encouraging mental health professionals to diagnose sexual abuse. Bird v. W.C.W., supra, at 769. We do not adopt the analysis in Bird because it focused on only one consideration—the utility of diagnosing sexual abuse. While we recognize that great social utility arises from allowing therapists to diagnose sexual abuse, no social utility can be derived from shielding therapists who make cavalier diagnoses that have profound detrimental effects on the lives of the accused and their family as recognized by the courts in Caryl S., supra, James W., supra and Montoya, supra. Further, as the concurring opinion in Bird warns, the decision “should not be read as conferring a grant of absolute immunity upon mental health professionals.” Id. at 772 (Gammage, J., concurring, joined by Doggett, J.) Instead, the concurring opinion noted that: Every privilege carries with it a responsibility. If we are to grant mental health professionals the privilege of making such accusations, even if they are not called upon to make them, we also should hold them to an appropriate standard of professional responsibility.... Though we should give mental health workers in this field some latitude and protection in their efforts to eradicate child abuse, commensurate standards of professional discretion should apply, and failure to adhere to such standards could foreseeably result in their judicial recognition and enforcement. Id, at 772-73. Thus, as the concurring opinion suggests, therapists should not be afforded blanket immunity in every instance. Finally, we find that imposing such a duty on therapists requires no more than what a therapist is already bound to provide—a competent and carefully considered professional judgment. When that therapist then embarks upon a course of action directed against the accused based on that professional judgment, a therapist owes a duty of care to the accused. Here, Dr. Cohen failed to properly diagnose Nicole and, consequently, provided her with substandard treatment. Further, we conclude that Dr. Cohen’s subsequent action directed at the Althauses caused harm to them that was reasonably foreseeable. Accordingly, we find that, under the particular circumstances of this ease, Dr. Cohen owed a duty of care to the Althauses. Dr. Cohen and WPIC next argue that they should be awarded a new trial on both the Althauses’ and their daughter Nicole’s negligence claims because the trial court erred in refusing to allow the jury to consider whether their negligence contributed to their own injuries. The standard for determining whether a jury instruction on contributory negligence is warranted is well-established. If there is some evidence of contributory negligence, the issue should be submitted to the jury. McCollough [McCullough] v. Monroeville Home Ass’n, Etc., 270 Pa.Super. 428, 411 A.2d 794, 795 (1979). However, the burden of establishing contributory negligence rests on the defendant. Id. at 431, 411 A.2d at 795. Additionally, for a plaintiff’s negligent conduct to effect his recovery, his conduct must be a proximate cause of his injury. Koelle v. Philadelphia Electric Co., 443 Pa. 35, 42, 277 A.2d 350, 354 (1971). In order for negligent conduct to be a proximate cause of an injury it must be a substantial factual cause of the injury for which damages are sought. Dornon v. Johnston, 421 Pa. 58, 60, 218 A.2d 808, 809 (1966). Pascal v. Carter, 436 Pa.Super. 40, 43, 647 A.2d 231, 233 (1994). With respect to the Althauses’ alleged negligence, Dr. Cohen and WPIC argue that certain decisions made by the Althauses throughout this ordeal may have “lengthened the period of time that passed before Nicole announced her refusal to testify and ultimately recanted her abuse claims.” Brief for Appellant at 29. Specifically, Dr. Cohen and WPIC point to the fact that (1) the Althauses had the opportunity to meet with Nicole and CYS to discuss the charges on the day that Nicole initially made them and instead chose to meet with their attorney; (2) Mrs. Al-thaus, who was given several options by CYS relating to Nicole’s placement, should have opted to remove Mr. Althaus from the family home; and (3) the Althauses waited six days before attempting to meet with Nicole and over eight months before requesting a psychiatric evaluation of Nicole. Dr. Cohen and WPIC cite several cases to support their contention that the Althauses’ conduct established some evidence of negligence. See Levine v. Rosen, 394 Pa.Super. 178, 575 A.2d 579 (1990), aff'd, 532 Pa. 512, 616 A.2d 623 (1992) (jury instruction on contributory negligence in a medical malpractice action proper where evidence suggested that the patient had failed to report her symptoms to the doctor and had scheduled mam-mographies without the doctor’s knowledge); Morganstein v. House, 377 Pa.Super. 512, 520, 547 A.2d 1180, 1184 (1988) (evidence in medical malpractice case of patient’s failure to follow his physician’s instructions was sufficient to warrant jury instruction on contributory negligence); Berry v. J.R. Friday, 324 Pa.Super. 499, 472 A.2d 191 (1984) (jury instruction on contributory negligence in medical malpractice action appropriate where evidence established that patient, as an overweight smoker and drinker, could have caused his heart attack). These cases address situations where there was evidence of a patient’s negligence in pursuing his or her own medical treatment. In each instance, a jury instruction was appropriate because the evidence suggested that the patient’s conduct could have been a “substantial factual cause” of his or her medical injury- However, these cases provide no support for the contention that a jury instruction is warranted here because the Althauses had no physician-patient relationship with Dr. Cohen and had no control over her treatment of their daughter Nicole. Rather, the testimony at trial established that Nicole’s undiagnosed condition progressively worsened under Dr. Cohen’s treatment and that Nicole’s allegations against her parents became increasingly more outlandish as a consequence. We fail to see how the Althauses’ conduct could even remotely establish that, had the Althauses chosen a different course of action, Dr. Cohen’s negligent treatment of their daughter and subsequent action directed against them would have been prevented or would have lessened their injuries. Thus, because we find no evidence of causation between the Althauses’ alleged contributory negligence and their injuries, the trial court did not err in refusing to instruct the juiy on contributory negligence with respect to the parents’ claims. See Pascal, supra (court erred in instructing the jury on contributory negligence where physician failed to show that minor and his father were contributorily negligent in failing to seek treatment earlier because there was no evidence presented that a proper diagnosis could have been made at an earlier date). With respect to Nicole’s alleged contributory negligence, Dr. Cohen and WPIC point to the fact that “but for” Nicole’s allegations against her parents, there would be no lawsuit. However, Dr. Cohen and WPIC would have us ignore the fact that Nicole had a borderline personality disorder that Dr. Cohen negligently failed to diagnose and, consequently, provided Nicole with substandard treatment that further contributed to Nicole’s inability to distinguish fact from fantásy. As the trial court noted, “[i]t is precisely because Nicole was psychologically unstable that her representations to her treating therapist cannot be seen as contributory negligence.” Opinion, McLean, J., May 22, 1996, at 10. Because Dr. Cohen and WPIC cite no case law from this Commonwealth that would support a jury instruction on contributory negligence in such an instance, we find no error in the trial court’s refusal to submit such an instruction to the jury. We now address the Althauses’ claims in their cross-appeal. Our review of the Althauses’ brief with respect to their first and second issues reveals that these claims are not supported by any legal authority; rather, we find a reiteration of the notes of testimony from trial and mere factual allegations. Pa.R.A.P. 2119. When a party has failed to cite any pertinent authority in support of a contention, the claim is waived. Fred E. Young, Inc. v. Brush Mountain, 697 A.2d 984, 990 (Pa.Super.1997), appeal denied, — Pa. -, — A.2d - (1998). Accordingly, we find the Althauses’ first and second issues to be waived. In their third issue on appeal, the Althauses argue that the court erred in failing to instruct the jury on punitive damages. [T]he purpose of punitive damages is to punish outrageous and egregious conduct done in a reckless disregard of another’s rights; it serves a deterrence as well as a punishment function. Schecter v. Watkins, 395 Pa.Super. 363, 383-84, 577 A.2d 585, 595 (1990). Therefore, under the law of this Commonwealth, a court may award punitive damages only if an actor’s conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others. SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 494, 587 A.2d 702, 704 (1991); Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989). Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa.Super.1997), appeal denied, — Pa. -, 712 A.2d 286 (1998). Here, we agree with the trial court that while Dr. Cohen’s actions amounted to professional negligence, there was not sufficient evidence of “outrageous conduct” to justify instructing the jury on punitive damages. Accordingly, the court properly denied the Althauses’ request. In their final issue for review, the Althauses maintain that delay damages should be awarded to their daughter Nicole pursuant to Pa.R.C.P. 238. However, Rule 238 is only applicable in civil actions where a party is “seeking monetary relief for bodily injury, death or property damage.” See Hodges v. Rodriguez, 435 Pa.Super. 360, 377-79, 645 A.2d 1340, 1349-50 (1994) (collecting cases of non-applicability); compare Temporaries, Inc. v. Krane, 325 Pa.Super. 103, 115, 472 A.2d 668, 674 (1984) (tortious interference with contact; Rule 238 applies only to certain actions and does not encompass every action). We decline to extend Rule 238 to actions where a party is seeking relief for mental illness and therefore find this claim to be without merit. Based on the foregoing, we AFFIRM the judgment in all respects. McEWEN, President Judge, files a Concurring and Dissenting Statement, in which he joins the majority’s decision with respect to the duty of care owed by Dr. Cohen to the Althauses, but dissents with respect to the majority decision’s disposition of the Althaus-es’ cross-appeal. TAMILIA, J., files a Concurring and Dissenting Opinion, in which he dissents from the majority’s disposition of the duty of care owed by Dr. Cohen to the Althauses, but joins the majority’s decision with respect to the Althauses’ cross-appeal. EAKIN, J., joins. SCHILLER, J., files a Dissenting Opinion, in which he dissents from the majority’s disposition of the duty of care owed by Dr. Cohen to the Althauses. BECK and EA-KIN, JJ., join.

STEVENS, Judge: This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant’s conviction for voluntary manslaughter and possession of an instrument of crime. Appellant Ikiem Smith contends that the evidence presented at trial was insufficient to support his conviction for voluntary manslaughter. We affirm. When reviewing a sufficiency of the evidence claim, this Court must view the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the Commonwealth as verdict winner, and we must determine if the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Rios, 546 Pa. 271, 279, 684 A.2d 1025, 1028 (1996). This Court may not substitute its judgment for that of the factfinder. Commonwealth v. Mudrick, 510 Pa. 305, 308, 507 A.2d 1212, 1213 (1986). If the record contains support for the verdict, it may not be disturbed. Id. Where, as here, there is a claim of self-defense, the burden is on the Commonwealth to prove beyond a reasonable doubt that the killing was not committed in self-defense. See Commonwealth v. Burns, 490 Pa. 352, 416 A.2d 506 (1980). Using these standards, the record reveals the following: Appellant and the victim were operating a crack house in the City of Philadelphia on May 13, 1996. The victim was responsible for admitting people into the home for the purpose of purchasing drugs. Sometime during the early morning hours of the day in question, two men and one woman attempted to enter the home, and after some discussion the victim allowed the three individuals into an enclosed porch which was attached to the home. After the three entered the porch, the two males pulled out knives in an apparent attempt to commit a robbery. Appellant, who was in a room adjacent to the enclosed porch, saw the ensuing incident through hanging sheets which separated the two rooms and Appellant pointed his .32 caliber handgun into the room, and fired it, hitting one of the assailants. Appellant then fired the hand gun seven more times, hitting the victim three to four times and killing him. Appellant was subsequently arrested and charged with various offenses in connection with the shooting. At trial, Appellant claimed that he saw one of the assailants with an object that he believed was a gun. However, the evidence revealed that a gun was never recovered from any of the assailants. At the conclusion of trial, the Honorable James J. Fitzgerald, III, found Appellant guilty of voluntary manslaughter and posses sion of an instrument of crime. This appeal followed. On appeal, Appellant claims that shooting the victim was the result of self defense, that he was defending the victim, and that the shooting was unintentional and justifiable, under the circumstances. Accordingly, he claims that the court erred in negating his self defense claim and finding him guilty. In order to procure a verdict of voluntary manslaughter, the Commonwealth has the burden of proving beyond a reasonable doubt that the homicide was not a justifiable act of self-defense. Commonwealth v. White, 492 Pa. 489, 424 A.2d 1296 (1981). A killing which occurs because of a mistaken belief that facts of justification exist will constitute voluntary manslaughter. Commonwealth v. Mehmeti, 501 Pa. 589, 597, 462 A.2d 657, 661 (1988). 18 Pa.C.S. § 2503(b) provides: “(b) Unreasonable belief killing justifiable. A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify the killing (under Chapter 5 of this title relating to justification) but his belief is unreasonable.” The Commonwealth can meet its burden of negating the defendant’s self defense claim by proving that the defendant used greater force than appeared to be necessary. See Commonwealth v. Gillespie, 290 Pa.Super. 336, 434 A.2d 781 (1981). This Court has recently held that an actor must conduct himself in a reasonable and prudent manner when using force in self-defense. See Commonwealth v. Fowlin, 450 Pa.Super. 489, 676 A.2d 665 (1996), alloc. granted, 546 Pa. 676, 686 A.2d 1308 (1997). In Fowlin, supra, this Court, en banc, agreed with the proposition that “where an actor is justified in using force upon or toward another person, but recklessly or negligently injures or kills an innocent person(s), the justification afforded the actor by [18 Pa.C.S.A.] § 505, (relating to self defense), is unavailable, in a prosecution based upon reckless or negligent conduct towards the innocent person(s).” Fowlin, 676 A.2d at 671. The analysis used in Fowlin, supra, to determine whether a person is permitted to use force in self defense, is identical to the analysis used when an individual acts in defense of another under 18 Pa.C.S.A § 506. Section 506(a)(1) explicitly states that, “[T]he use of force upon or toward the person of another is justifiable to protect a third person when: (1) the actor would be justified under section 505 of this title (relating to the use of force in self protection) in using such force to protect himself against the injury he believes to be threatened to protect.” The same standard in regard to the amount of force should apply regardless of whether the actor is defending himself or another. We find that the evidence in this case was sufficient to show that Appellant’s actions were excessive, reckless, and negligent. Appellant fired eight shots into a crowded room without first assessing the situation. Evidence indicates that the first shot hit and disabled one of the assailants. However, Appellant did not stop shooting. Instead, Appellant continued to fire seven shots into the room, hitting the victim three to four times. Appellant then fled the house without getting help for either of the individuals who were shot. Appellant’s claim that one of the assailants was brandishing a gun was not supported by the record. As such, we find that there was sufficient evidence to rebut a claim of self defense or defense of another and that the evidence was sufficient to support a conviction for voluntary manslaughter. Affirmed. Concurring and dissenting opinion by OLSZEWSKI, J. . 18 Pa.C.S.A. § 2503. . 18 Pa.C.S.A. § 907. . In his Statement of Questions Presented, Appellant claimed that the evidence was insufficient to sustain his conviction for possession of an instrument of crime. However, he failed to develop this claim and failed to cite any authority supporting it. As such, we find this claim to be waived. .Testimony was taken from Carolyn Revercomb, M.D., an assistant medical examiner. Dr. River-comb testified that the victim's injuries resulted from three to four gunshot wounds. Importantly, no wounds were consistent with that of a knife. . 18 Pa.C.S.A. § 2503(a) provides: (a) General Rule—A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (1) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or accidentally causes the death of the individual killed. . 18 Pa.C.S.A. § 505(b)(3) sets down the limitation on the justifying necessity for the use of force in self defense stating: (b)(3) Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any individual action. . This court, en banc, in Fowlin, supra, affirmed the decision of the trial court with four judges joining the majority decision and three dissenting while agreeing with the rationale of the majority. . The Model Penal Code § 3.09 relating to reckless or negligent injury to innocent persons defines reckless conduct as an action which would create a substantial or unjustifiable risk to innocent persons.

Mr. Justice Paxson delivered the opinion of the court, This action was brought to recover certain arrears of rent. The demised premises are situated in the city of New York and the contract was made there. The defendant below resisted payment upon the ground that the verbal lease under which he held the premises was void under the statute of the state of New York which prohibits any one from transacting business in the name of a partner not interested in the firm. The plaintiffs below are a Philadelphia firm with a branch office in New York. The name of their firm is Kohn, Adler & Co., and at the time of this transaction Mr. Adler was dead, and there was no person of that name in the firm. In 1882 they rented a vacant portion of their building in New York to the defendants. Was this transacting business within the meaning of the New York statute? The learned judge of the court below held that it was not, and we see no reason to question the soundness of his ruling. In construing a New York statute we naturally turn to the decisions of the courts of that state for light. We do not find a ruling upon the very point. The nearest approach to it is the ease of Wood v. Erie R. R. Co., 72 N. Y., 196. It was there said by the court of errors and appeals in considering this statute: “ The Act is highly penal, and will not be ex- tended by implication or construction to cases within the mischief, if they are not at the same time within the terms of the Act fairly interpreted. We must also consider the purpose of an Act of this character in construing the same, and the mischief it was designed to suppress. It is quite obvious that the object in view was to prevent an individual engaged in business from continuing to use the name of a member of the firm with whom such persons had been associated, after such member had retired from the concern, or of using the name of a person not interested in such firm, and thus to induce credit to be given by those trading with such persons, and to impose on tlie public. Such being the manifest object of the law, it evidently related mainly to dealings between the individual who used the name of the old firm, or of one not interested, and tlie person who transacted business arising out of said dealings with Mm. These would be mainly between the vendor and the vendee, or the employer and the employee, or the person wbo performed labor or rendered services, and the one for whom it was rendered. Business transactions between parties occupying such a relationship would clearly come within the operation of the statute referred to, and were intended to be embraced within its provisions. It was against fraud and imposition which might be practised upon innocent parties wbo dealt with the persons who transacted business in the name of a party whose interest had ceased, or who never had any interest in tlie same, that the statute was directed. These were the evils intended to be remedied and clearly within the terms of the statute. Beyond this the statute cannot be extended by implication, or even by a liberal construction.” The case in which the foregoing language was used by Justice Miller was in tort, and therefore essentially different in its facts from the one in hand. It is valuable however as being a well considered construction of the statute. We are of opinion that in leasing this property the plaintiffs were not transacting business within the meaning of the New York statute. They were not real estate agents or brokers in any sense. They were in the millinery and straw goods business. The leasing of a part of their premises was not an ordinary incident of their business; it was done merely because it happened to be vacant. The Act was never intended to cover such a ease as tliis, and as it is highly penal we will not extend it beyond its plain object and meaning. Judgment affirmed.

FRIEDMAN, Judge. The issue we are asked to decide pertains to the 1993 amendments to the Workers’ Compensation Act (Act) which are commonly known as Act 44. Specifically, in this case, we consider who bears the burden of proof under the Act 44 amendments to the Act in a Petition for Review of Utilization Review (UR) Determination filed pursuant to section 306(f.l)(6) of the Act. 77 P.S. § 531(6) (amended 1996). Prior to the Act 44 amendments, section 306(f) of the pre-amended Act provided that an employer could challenge the reasonableness or necessity of an employee’s work-related medical treatment by petitioning the Department of Labor and Industry, Bureau of Workers’ Compensation (Department) for review of the necessity or frequency of treatment or reasonableness of fees for service. 77 P.S. § 531(2)(ii) (amended 1993). However, section 306(f.l) of the Act 44 amendments changed the process governing disputes relating to the reasonableness or necessity of medical treatment from a one step process to a three step process. Before a petition for review by the Department can be filed, the Act 44 amendments require utilization review of challenged medical treatment. Accordingly, Act 44 provides: (6) ... [Disputes as to reasonableness or necessity of treatment by a health care provider shall be resolved in accordance with the following provisions: (i) The reasonableness or necessity of all treatment provided by a health care provider under this act may be subject to prospective, concurrent or retrospective utilization review at the request of an employe, employer or insurer.... (ii) ... If the provider, employer, employe or insurer disagrees with the finding of the utilization review organization, a [written] request for reconsideration must be filed no later than thirty (30) days after receipt of the utilization review report. (iv) If the provider, employer, employe or insurer disagrees with the finding of the utilization review organization on reconsideration, a petition for review by the department must be filed within thirty (30) days after receipt of the reconsideration report. The [Department shall assign the petition to a referee for a hearing. 77 P.S. § 531(6) (footnote added) (amended 1996). In this case, Topps Chewing Gum (Employer) filed two Petitions for UR Initial Request (Petitions) pursuant to section 306(f.l)(6) of the Act 44 amendments. In one Petition, Employer challenged, as excessive, prescriptions for Joan Wickizer’s (Claimant) medications, written by Leroy Pelicci, M.D., from October 1, 1994 and ongoing. In the second Petition, Employer alleged that Dr. Pelicei’s trigger point injections and nerve conduction studies performed on Claimant, from February 1, 1995 to present, were unreasonable and unnecessary. After the Utilization Review Organization (URO) determined that the challenged prescriptions, trigger point injections and nerve conduction studies were unreasonable and unnecessary, Claimant filed a request for reconsideration, pursuant to section 306(f.l)(6)(ii), challenging the determination on the prescriptions, and Dr. Pelicci filed a request for reconsideration under that same provision, challenging the determination on the trigger point injections and the nerve conduction studies. On reconsideration, another URO again determined that the challenged prescriptions were unreasonable and unnecessary; however, it appears that no determination was made regarding the trigger point injections and nerve conduction studies. Subsequently, Dr. Pelicci filed two Petitions for Review of UR Determination, pursuant to section 306(f.l)(6)(iv), one challenging the determination on the prescriptions, and the other challenging the determination on the trigger point injections and the nerve conduction studies. The two Petitions for Review of UR Determination were consolidated for hearing and determination by a workers’ compensation judge (WCJ). At the hearing, Claimant testified and offered a report from Dr. Pelicci, in which he discussed Claimant’s treatment. Employer offered the reports from the three physicians comprising the UROs, Jon Glass, M.D., Richard H. Bennett, M.D., and Kathleen Malo-ney, M.D. The WCJ found the opinions of Drs. Glass, Bennett and Maloney to be credible and persuasive and rejected Dr. Pelicci’s opinion as not credible. Consequently, the WCJ found that Claimant failed to meet her burden of proof to establish that the contested prescriptions and treatment were reasonable and necessary. Accordingly, the WCJ dismissed both Petitions for Review of UR Determination. Claimant appealed to the Workers’ Compensation Appeal Board (WCAB), alleging that the WCJ erred in placing the burden on Claimant to prove that the challenged treatment was reasonable and necessary. Rather, Claimant argued that the burden should have been placed on Employer to prove the contrary. The WCAB agreed, relying on this court’s opinion in Florence Mining Co. v. Workmen’s Compensation Appeal Board (McGinnis), 691 A.2d 984 (Pa.Cmwlth.1997), wherein we held that the UR procedure in section 306(f.l)(6) of the Act is procedural in nature. The WCAB held that the Act 44 amendments “did not change the existing substantive law that the employer alone has the burden to prove that medical treatment is not reasonable or necessary.” (WCAB op. at 10.) Accordingly, the WCAB concluded that the WCJ erred in placing the burden of proof on Dr. Pelicci, and it reversed the WCJ’s order. Employer now appeals to this court, arguing that the Act 44 amendments changed the substantive law relating to an employer’s liability for medical expenses, and therefore, the former case law regarding the burden of proof is inapplicable. Employer points out that the legislature intended the amendments to greatly curtail escalating medical costs. From this, Employer baldly asserts that it would be justifiable to place the burden of proving the reasonableness and necessity of the challenged treatment on the health care provider. We cannot agree. Where the legislature has only altered the procedural steps and has not clearly expressed an intent to change existing substantive law, we may not infer such an intent. See Metropolitan Property & Liab. Ins. Co. v. Insurance Comm’r, 525 Pa. 306, 580 A.2d 300 (1990). Thus, contrary to Employer’s assertion that the legislature intended to shift the burden of proof away from the employer, we can discern nothing from the wording of the revised statute indicating that the legislature intended to shift the burden of proving the reasonableness and necessity of medical expenses away from the employer. Nevertheless, Employer contends that the WCAB, in assigning Employer the burden of proof, overlooked new aspects of the Act 44 amendments. Specifically, Employer argues that the Act 44 amendments introduced the health care provider as a new potential “party” and, because the health care provider is separate and apart from the claimant and has a direct financial interest in the outcome of the litigation, the UR process in section 306(f.l)(6) cannot be deemed to be a procedural amendment to the Act. We disagree. We recognize that, unlike the pre-amended Act, subsection 6 of section 306(f.l) of the Act 44 amendments allows a health care provider to participate in the process challenging medical expenses. However, a comparison of section 306(f) of the pre-amended Act with section 306(f.l)(6) of the Act 44 amendments reveals that the latter’s introduction of the health care provider relates only to procedural matters involved in the process used to challenge the reasonableness and necessity of treatment. As we held in Florence Mining, section 306(f.l)(6) of the Act 44 amendments is purely procedural and merely “implement[s] the procedure by which the reasonableness and necessity of medical bills can be reviewed immediately.” Florence Mining, 691 A.2d at 987. Indeed, nothing in section 306(f.l) of the Act 44 amendments shifts the burden of proof away from the employer. Prior to the Act 44 amendments, section 306(f) of the pre-amended Act provided, in pertinent part: (1) The employer shall provide payment for reasonable surgical and medical services, services rendered by duly licensed practitioners of the healing arts, medicines, and supplies, as and when needed.... 77 P.S. § 531 (amended 1993). Similarly, section 306(f.l)(l)(i) of the Act 44 amendments provides: “[t]he employer shall provide payment in accordance with this section for reasonable surgical and medical services, services rendered by physicians or other health care providers, medicines and supplies, as and when needed_” 77 P.S. § 531(l)(i) (amended 1996). Accordingly, the Act 44 amendments, like the pre-amended Act, provide that once an employer is deemed liable for an injury, the employer must pay for reasonable and necessary medical treatment resulting from that injury. The employer’s obligation to pay for a claimant’s medical expenses is also mandated in section 306(f.l)(5) of the Act 44 amendments which provides, “[a]ll payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records.” 77 P.S. § 531(5) (emphasis added) (amended 1996). Because it is the employer who seeks to change the status quo, namely its obligation to pay for the claimant’s work-related medical expenses, we conclude that the employer has the burden of proof throughout the UR process. See David B. Torrey and Andrew E. Greenberg, Pennsylvania Workers’ Compensation: Law and Practice § 14:107 (1997). For the foregoing reasons, we conclude that, under the Act 44 amendments at issue here, the employer has the burden throughout the UR process of proving that the challenged medical treatment is unreasonable or unnecessary. Accordingly, the WCJ erred when it placed the burden of proof on Claimant in Dr. Pelicci’s Petitions for Review of UR Determination. We understand that the WCAB recognized this error and properly placed the burden of proof on Employer; however, we cannot affirm its order. Where, as here, the fact-finder placed the burden of proof on the wrong party, neither the WCAB nor this court can determine whether the WCJ would have reached the same conclusions under the correct allocation of the burden of proof. Williams v. Workmen’s Compensation Appeal Bd. (Realty Services Co.), 166 Pa.Cmwlth. 276, 646 A.2d 633 (1994). Accordingly, we must vacate the WCAB’s order and remand this case to the WCAB to remand to the WCJ for a determination on both Petitions for Review of UR Determination, placing the burden of proof on Employer. ORDER AND NOW, this 23rd day of April, 1998, the order of the Workers’ Compensation Appeal Board (WCAB), dated June 30, 1997 at A96-3883, is hereby vacated, and the case is remanded to the WCAB to remand to the workers’ compensation judge for a determination of the Petitions for Review of Utilization Review Determination, filed on or about June 6, 1995 and July 28, 1995 by Leroy Pelicci, M.D., placing the burden of proof on the employer, Topps Chewing Gum. Jurisdiction relinquished. . Act of July 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4. The amendments at issue here were enacted by the Act of July 2, 1993, P.L. 190 (Act 44). The Act was further amended by the Act of June 24, 1996, P.L. 350 (Act 57). The Act 57 amendments are not germane to the issue presently before us. We will refer to the Act as it existed prior to the Act 44 amendments as the pre-amended Act. . Act 57 eliminated this request for reconsideration step. 77 P.S. § 531(6). . A utilization review organization is defined as: those organizations consisting of an impartial physician, surgeon or other health care provider or a panel of such professionals and providers as authorized by the Secretary of Labor and Industry and published as a list in the form of a notice in the Pennsylvania Bulletin for the purpose of reviewing the reasonableness and necessity of treatment by a health care provider pursuant to section 306(f.l)(6). Section 109 of the Act, 77 P.S. § 29. .Although Dr. Pelicci actually filed the Petitions for Review of UR Determination, the WCJ stated that Claimant’s petitions are dismissed. Dr. Pel-icci did not attend the hearing, and it appears that the WCJ felt that Claimant’s attorney was "substituting for [Dr. Pelicci] on [the] client’s behalf.” (R.R. at 12a.) . A procedural statute, one which establishes the method for enforcing a right, may be applied retroactively; a statute which implicates substantive rights may not be applied retroactively. Keystone Coal Mining Corp. v. Workmen’s Compensation Appeal Bd. (Wolfe), 673 A.2d 418 (Pa.Cmwlth.1996). In Florence Mining, we stated that, in determining whether the UR process applies, it is the date of the treatment, not the date of injury, which is relevant. Florence Mining (citing 23 Pa. Bull. 4185). Thus, the UR provisions of Act 44 can be applied retroactively and must be procedural. In fact, we note that the Act 44 amendments challenged here have been applied retroactively; if the date of injury were the relevant date, the UR process would not even be applicable to this case. . Despite the WCAB's acknowledgement that the WCJ placed the burden of proof on Claimant, (WCAB op. at 4), the WCAB ultimately concluded that the WCJ "erred in concluding that the burden of proof was on the health care provider under review, Dr. Pelicci." (WCAB op. at 11.) . Our scope of review is limited to determining whether constitutional rights were violated, whether an error of law was committed or whether necessary findings of fact are supported by substantial evidence. Florence Mining. . The case law pertaining to challenges to the reasonableness and necessity of medical treatment under the pre-amended Act holds that once a claimant has proven a compensable work-related injury or recéived benefits pursuant to a notice of compensation payable, the employer bears the burden to establish that the medical expenses are not reasonable or necessary. Lehigh Valley Refrigeration Servs. v. Workmen’s Compensation Appeal Bd. (Nichol), 120 Pa.Cmwlth. 434, 548 A.2d 1321-(1988). . We recognize that the legislature repealed section 306(f) of the pre-amended Act; however, in enacting Act 44, the legislature retained, virtually intact, the language of the pre-amended Act establishing an employer’s obligation to pay for work-related medical expenses. Compare section 306(f)(1) of the pre-amended Act with section 306(f.l) of Act 44, 77 P.S. § 531. Because this court interpreted that language as placing the burden of proof on an employer, and because the legislature was fully cognizant of this court’s interpretation of that statutory language when it enacted Act 44 using virtually identical language, we conclude that the legislature intended the same interpretation now as before. See section 1921 of the Statutory Construction Act of 1972, 2 Pa.C.S. § 1921; Commonwealth v. Sitkin's Junk Co., 412 Pa. 132, 194 A.2d 199 (1963). Had the legislature intended otherwise and desired to shift the burden of proof away from the employer, the legislature would have done so explicitly when enacting Act 44. . Employer contends that one such aspect is that the resulting regulations also are designed to curtail medical costs. Employer, however, neither points to any such regulation nor explains how such a regulation establishes that the legislature expressed its intention to change the current law and shift the burden of proof away from the employer. . A health care provider is defined in the Act as: any person, corporation, facility or institution licensed or otherwise authorized by the Commonwealth to provide health care services, including, but not limited to, any physician, coordinated care organization, hospital, health care facility, dentist, nurse, optometrist, podiatrist, physical therapist, psychologist, chiropractor or pharmacist and an officer, employe or agent of such person acting in the course and scope of employment or agency related to health care services. 77 P.S. § 29. . Although we recognize that a claimant does not fit within the Act's definition of a health care provider and that a health care provider has standing to challenge a determination by a UR reviewer, nothing in the Act makes the health care provider a party to an action challenging the reasonableness or necessity of medical costs. In fact, the health care provider cannot initiate a UR. 77 P.S. § 531(6) (amended 1996). The introduction of a health care provider, a non-party participant, to the workers’ compensation proceedings in no way alters which party bears the burden of proof as to whether a claimant’s medical expenses are reasonable and necessary. The health care provider simply stands in the shoes of the claimant, and the employer is obligated to pay the health care provider for the services rendered to the claimant. See also 25 Pa. Bull. § 30 at 4883. .Originally, under the Act 44 amendments, section 306(f.l)(5), 77 P.S. § 531(5) (amended 1996), read: ”[a]ll payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment provided pursuant to paragraph (6).” However, the Third Circuit Court of Appeals has declared the "unless” clause (supersedeas provision) to be unconstitutional and, therefore, void. Sullivan v. Barnett, 139 F.3d 158 (3d Cir.1998). The Third Circuit Court of Appeals held that the supersedeas provision of Act 44 is unconstitutional because it does not provide claimants with notice and an opportunity to be heard before their medical benefits can be suspended. Id. . Further, we note that the regulations also reflect the employer’s obligation to pay a claimant’s work-related medical expenses by providing a rebuttable presumption that the medical treatment is reasonable and necessaiy. See 34 Pa. Code § 127.471 (stating that if the UR reviewer is unable to determine whether treatment is reasonable or necessary, the reviewer shall resolve the issue in favor of the provider). . In workers’ compensation proceedings, the WCJ is the finder of fact Universal Cyclops Steel Corp. v. Workmen’s Compensation Appeal Bd. (Krawczynski), 9 Pa.Cmwlth. 176, 305 A.2d 757 (1973). . The “burden of proof’ actually includes two different burdens: the burden of production, where the burdened party must produce enough evidence to avoid an adverse legal ruling, and the burden of persuasion, where the burdened party "must convince the fact finder to the required degree of certainty of the party's position on that issue.” Leonard Packel and Anne Bowen Pou-lin, Pennsylvania Evidence § 301 at 46. In worker’s compensation proceedings, the WCJ has exclusive province over questions of credibility and evidentiary weight. Greenwich Collieries v. Workmen’s Compensation Appeal Bd. (Buck), 664 A.2d 703 (Pa.Cmwlth.1995). In Williams, we stated that, where the WCJ improperly allocates the burden of proof, neither this court nor the WCAB can determine whether the WCJ would have made those same credibility determinations and conclusions under the correct allocation of the burden of proof, and, therefore, remand is required. However, we cannot accept that, on remand, the WCJ can alter his or her findings regarding what witnesses he or she believed. Rather, we think the principle in Williams is more accurately stated as an inability of this court and the WCAB to determine whether the WCJ would find that that evidence, already found credible, is of sufficient weight so that the party bearing the burden of proof has satisfied its burden of persuasion.

DOYLE, Judge. Louis P. Vitti individually and through his business, Louis P. Vitti & Associates, P.C. (collectively, Vitti), appeals from an order of the Court of Common Pleas of Allegheny County which affirmed a decision of the Zoning Board of Adjustment of the City of Pittsburgh (Board) which granted variances and a special exception to Bethlehem Haven. Bethlehem Haven is a non-profit organization devoted to aiding the homeless population of the City of Pittsburgh. For approximately fourteen years, Bethlehem Haven has provided nighttime shelter to homeless women in the basement of the Smithfield United Church located at 620 Smithfield Street in “downtown” Pittsburgh. Bethlehem Haven, along with two other homeless providers, Community Human Services and Wellspring, determined that, in order to help resolve the problems of homelessness within the City, a daytime program for the women needed to be initiated. Thus, in an effort to expand its operations in the City, Bethlehem Haven located a larger facility at 902-904 Fifth Avenue, situated in the “uptown” district of Pittsburgh, where it desired to move its shelter and where various counseling services could be consolidated as part of a collaborative effort to address the homeless problem. This property consists of a three-story vacant building formerly used as a retail sporting goods store and is located in an area of the City zoned as a “C-4 Commercial Zone.” This litigation commenced when Bethlehem Haven and Jack Linzer, the owner of the subject property at the time, filed an Occupancy/Building permit with the Office of the Zoning Administrator. The application stated that Bethlehem Haven desired to change the use of the premises from a retail clothing and sporting equipment store to a lodging facility for up to 50 women. The application specified the intended use of the property as follows: Existing 3-story structure, 1st floor coffee shop (open to the public), drop-in reception center, kitchen and dining facilities for the lodgers, 2nd floor offices and meeting rooms, 3rd floor lodging facilities for 50 women. (Application for Occupancy/Building Permit; Reproduced Record (R.R.) at 9a.) The Application for Occupancy/Building permit was initially rejected by the City Zoning Administrator because the property, which is 5,740 square feet in size, did not have sufficient square footage to satisfy the 11,600 square-foot requirement specified in Section 957.04(2)(A) of the Pittsburgh Zoning Code (Pittsburgh Code), which provides as follows: § 957.04 Area. For the uses listed in § 957.02 [ (relating to a C-4 Commercial Zone) ], on each unimproved lot and on each lot upon which a structure hereafter is erected or enlarged or used, there shall be provided and maintained a lot area, yards and other open spaces not less than prescribed in this section. 2. Lot area for main uses not listed in item 1 above [(relating to apartment hotels, hotels and boarding houses of three-stories or more) ]. A With sleeping rooms not in excess of 600: 5,000 square feet plus 300 square feet for each sleeping room in excess of three, but not in excess of 200, plus 515 square feet for each sleeping room in excess of 200. Pittsburgh Code § 957.04. Also cited as a reason for the initial rejection of the application was that the subject property had no on-site parking spaces when 24 parking stalls are required by Section 989.01 of the Pittsburgh Code for the uses proposed in the application. The number of required parking spaces is determined by a combination of the use and square footage of the property as delineated by a table set forth under Section 989.01 of the Pittsburgh Code. Bethlehem Haven subsequently filed an appeal to the Board requesting variances from Sections 957.04(2)(A) and 989.01 of the Pittsburgh Code, as well as a special exception pursuant to Section 909.06(d)(1). A hearing was held before the Board on January 25, 1996, and, on June 28, 1996, the Board ultimately granted Bethlehem Haven’s request for variances and a special exception on the condition that Bethlehem Haven “maintain daytime programming, counseling, offices, and meeting rooms for the lodgers.” (Board’s Decision, 6/28/96, at 6; R.R. at 54a.) Vitti subsequently appealed to the Court of Common Pleas of Allegheny County, which ultimately affirmed the Board’s decision by opinion and order dated April 4, 1997. This appeal by Vitti ensued. On appeal, Vitti asserts two principal arguments for our consideration: (1) that the Board and Court of Common Pleas erred by characterizing the use of the subject premises as a homeless shelter and that it is truly a “group care facility” which is not a permitted use in the C-4 Commercial zoning district in which the property is situated, and (2) that Bethlehem Haven did not demonstrate an unnecessary hardship sufficient to justify the granting of a variance and that the granting of the special exception would be detrimental to the neighboring community. In concluding that the combined use of the property as a homeless shelter, counseling service, and coffee shop was a permitted use under the provisions of the Pittsburgh Code, the Board reasoned as follows: (Board’s Decision, 6/28/96, at 5; R.R. at 53a.) (Emphasis added.) The proposed facility has been presented to the Board as a combination of lodging facility, educational and counseling services, and restaurant. Those are permitted uses in a C-4 district and thus do not require a variance. An issue may exist as to whether the proposed development as a whole constitutes a separate use, although community facilities for the homeless is not a defined use in the ordinance. Thus, a particular use that is more specifically described may result in a use that is excluded by the ordinance. During the proceedings, however, no one challenged the characterization offered by the Zoning Administra.tor and, thus, for purposes of this record, the proposed uses appear to be permitted. Vitti did not argue before the Board that the proposed use of the facility as a “combination of lodging facility, educational and counseling services, and restaurant” was not a permitted use in the C-4 Commercial Zone, nor did he argue to the Board that the proposed use was truly that of a “group care facility.” Instead, Vitti raised these arguments for the first time on appeal to the Court of Common Pleas. We have held that where, as here, a party fails to challenge whether the proposed use is a permitted use before the Board, the party has waived that issue and may not subsequently raise the argument that the proposed use is not a permitted one within the zoning district. Wagner v. City of Erie Zoning Hearing Board, 675 A.2d 791 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 546 Pa. 672, 685 A.2d 549 (1996). Consequently, in this case, we agree with the Common Pleas Court that Vitti may not now contend that the use of the subject premises as a lodging house is not a permitted use in the C-4 Commercial Zone, nor may he now assert that the proposed use is actually a “group care facility,” which is not permitted in that district. Vitti also contends that the Board erroneously granted variances from the dimensional and parking-space requirements specified in Sections 957.04(2)(A) and 989.01 of the Pittsburgh Code and a special exception from the parking-space requirements under Section 909.06(d)(1) of the Code. In particular, Vitti contends that Bethlehem Haven failed to adequately demonstrate an “un necessary hardship” which is required to obtain a variance pursuant to Section 909.05 of the Pittsburgh Code. With respect to this issue, the Board concluded as follows: Recognizing the relationship between locating such a facility in proximity of the downtown area and the dimensional constraints present by older buildings and the severe cost constraints in servicing indigent individuals, on the balance it seems appropriate to grant the variance ... (Board’s Decision, 6/28/96, at 6; R.R. at 54a.) After a careful review of the relevant case law and record in this case, we must agree with the Board’s conclusion in this regard. In order to establish that an unnecessary hardship exists, an applicant for a variance must prove that either (1) the physical characteristics of the property are such that it could not be used in any case for any purpose permitted in that zoning district or that it could only be used for a permitted purpose except at prohibitive expense, or (2) the characteristics of the property are such that the lot has either no value or only distress value for any purpose permitted by the zoning ordinance. Laurento v. Zoning Hearing Board, 162 Pa.Cmwlth. 226, 638 A.2d 437 (1994); see also Isaacs v. Wilkes-Barre City Zoning Hearing Board, 148 Pa.Cmwlth. 578, 612 A.2d 559 (1992). In Wagner v. City of Erie Zoning Hearing Board, this Court affirmed the granting of a dimensional variance, as well as a variance from parking-space requirements, where the subject property (a former motel) had remained vacant for several years and had subsequently been purchased for the purpose of providing shelter for low income residents and homeless persons. We held that under those existing circumstances, ie. the vacancy of the building and the difficulty with which it sold, evidenced an unnecessary hardship sufficient to warrant the granting of the variances. In so holding, we stated as follows: Although unnecessary hardship usually relates to the physical characteristics of the land, at times, the unnecessary hardship can relate to the building itself. Where the use of property for any purpose is possible only through extensive recon struction or demolition of the building, it has been held sufficient to establish an unnecessary hardship. Logan Square Neighborhood Association v. Zoning Board of Adjustment [32 Pa.Cmwlth. 277], 379 A.2d 632 (Pa.Cmwlth.1977). In a case similar to the facts in the instant ease, Davis v. Zoning Board of Adjustment [78 Pa.Cmwlth. 645], 468 A.2d 1183 (Pa.Cmwlth.1983), we upheld the grant of a variance from the lot area requirements to allow a property owner to rehabilitate and use an abandoned and vacant four-story apartment building located in a residential zone as a seventeen-unit multi-family dwelling. We held that because the premises could not conform with the zoning restrictions absent demolition and reconstruction, an unnecessary hardship existed. Id.; see also Zoning Hearing Board of the Township of Indiana v. Weitzel [77 Pa.Cmwlth. 108], 465 A.2d 105 (Pa.Cmwlth.1983) (holding that where the only options available to a property owner without a use variance were to either convert his three-story school building into a single-family dwelling or demolish the building and subdivide the lot, more than “mere economic hardship” existed and evidence of unnecessary hardship was established). Id. at 799. Our holding in Wagner was partly based upon the recognition that, where blighted or dilapidated conditions exist in urban areas, and where the applicant for a variance has undertaken efforts to remediate or renovate those areas for a salutary, productive purpose, a slight relaxation, or less stringent application, of the variance criteria may be the only way the subject property will be put to any beneficial use. Additionally, in Price v. Zoning Board of Adjustment, 44 Pa.Cmwlth. 95, 403 A.2d 196 (1979), we also recognized that an applicant for a variance has adequately demonstrated unnecessary hardship where the property would be, as a practical matter, essentially worthless absent the granting of a variance, stating as follows: It is undisputed here that the building could not reasonably be moved, nor could the lot dimensions be expanded. And even the appellant concedes that without a variance the property would be practically valueless. We believe, therefore, that this is sufficient evidence of hardship. Id. at 197. Similarly, the subject property in the instant case has been vacant for over seven years, and, except as receptacle for storing second-hand clothing, the budding has not been used for any productive use. The building is dilapidated and has essentially sat dormant as valueless real estate over the years. Although this area of the City has apparently experienced a revitalization recently, the record indicates that the immediate area of the City in which the property is located is generally downtrodden, that a number of abandoned buildings exist there, and that it has experienced socioeconomic difficulties since it has ceased to be the wholesale district of the City. Bethlehem Haven has now acquired the building as part of a collaborative and integrated effort to utilize the property for a combination of commercial and humanitarian purposes. As the Board recognized, a variance is the only way for the subject property to be used for virtually any permissible productive purpose in the C-4 Commercial Zone where it is located. This conclusion is supported by the Board’s Finding of Fact No. 17, where the Board found that “[a]lmost any use of the structure and narrow zoning lot would require parking and density variances,” which we find to be supported by the record in this case. (Board’s Opinion, 6/28/96, at 3; R.R. at 51a.) We further note that unnecessary hardship is also evidenced by the fact that the cost of the demolition and reconstruction work necessary-for strict compliance with the zoning ordinance would be astronomical and commercially impracticable. See Logan Square Neighborhood Association v. Board of Adjustment, 32 Pa.Cmwlth. 277, 379 A.2d 632 (1977). Vitti contends that there are “literally dozens of permitted uses” to which the property could be put and that, in the absence of a showing that the property may not be used for any permitted purpose, a variance should not have been granted. The record, however, does not support this assertion. Vitti further suggests in this regard that the property could still be used as a warehouse or storage facility. However, to say that the use of this three-story building, located in the heart of uptown Pittsburgh, is actually being “utilized” in any productive manner as merely a large makeshift warehouse is somewhat disingenuous. Furthermore, in support of this argument, Vitti states in his brief that “[t]he fact that the property has remained vacant for several years has no bearing on the decision process.” (Vitti’s Brief at 12.) This statement, however, is simply incorrect. See Wagner. As noted above, no one has sought fit to utilize or purchase this property for commercial purposes for at least seven years, and having it used as a combination coffee shop, homeless shelter, and education and counseling center for the less fortunate is certainly more beneficial to the City than to have the property remain forever vacant and dilapidated. Therefore, because Bethlehem Haven demonstrated that a variance is necessary in order for the property to be used for virtually any productive purpose where it is located and that exorbitant expenditures would be necessary for strict compliance with the zoning provisions at issue, and considering our limited standard of review and that a less stringent application of the variance criteria specified in Section 909.5 of the Pittsburgh Code is called for under the unique circumstances of this ease, we hold that the Board did not err in concluding that Bethlehem Haven adequately demonstrated the existence of unnecessary hardship justifying the grant of a variance. Vitti also contends that the Board erred by granting a special exception to Bethlehem Haven with regard to the required number of parking spaces. Specifically, Vitti argues that the proposed use “is detrimental to the general welfare of the neighborhood,” “will certainly be detrimental and injurious to the neighborhood,” and will “impede the normal and orderly development and improvement of surrounding property for uses permitted in the district.” (Vitti’s Brief at 14-15.) The applicant for a special exception has the initial burden of demonstrating compliance with the specific objective requirements for that exception as specified in the ordinance. Bray v. Zoning Board of Adjustment, 48 Pa.Cmwlth. 523, 410 A.2d 909 (1980). Once the applicant has satisfied this initial burden, the burden shifts to the objector to establish that the proposed exception would be detrimental to the public health, safety and welfare. Id. With respect to the special exception, the Board ultimately concluded as follows; In the present case, the Board finds that [Bethlehem Haven] has met the burden of persuasion required for the grant of a special exception to allow for the modification of the parking requirements.[ ] The individuals who will use the facility do not own ears and the location is well serviced by public transportation. The Board finds that there is no evidence that the waiver of parking requirements will be detrimental to the neighborhood. (Board’s Opinion, 6/28/96, at 4; R.R. at 52a.) This conclusion is supported by the record, and, given our limited standard of review in such matters, we cannot say that the Board abused its discretion or committed an error of law in reaching this result. Furthermore, it is obvious from Vitti’s arguments described above that his principal contention with regard to the granting of the special exception is that the use of the property as a homeless shelter for women is not a permitted use in the C-4 Commercial Zone. As discussed above, however, we believe that such a use is permitted within the language of the Pittsburgh Code, and we stress that the “type” of resident or applicant has never been a proper basis for rejecting an application for a variance or special exception. The Board has imposed conditions, ie., daytime programs for education and counseling as well as the availability of offices and meeting rooms, which are designed to alleviate Vitti’s concerns. Order affirmed. ORDER NOW, April 9,1998, the order of the Court of Common Pleas of Allegheny County in the above-captioned matter is hereby affirmed. LEADBETTER, J., did not participate in the decision in this case. . On appeal to the Court of Common Pleas, this case was consolidated with a similar appeal filed by 900 Fifth Avenue Associates. . Where, as in the instant matter, the Common Pleas Court has taken no additional evidence, our standard of review is limited to determining whether the Board abused its discretion, committed an error of law or made findings of fact, not supported by substantial evidence. Pittsburgh Trust for Cultural Resources v. Zoning Board of Adjustment, 145 Pa.Cmwlth. 503, 604 A.2d 298 (1992), petition for allowance of appeal denied, 538 Pa. 618, 645 A.2d 1320 (1994). . We further note, as Bethlehem Haven points out in its brief, that the proposed use of the subject property would most likely be a permitted use as a "rescue mission” pursuant to Section 957.02(53) of the Pittsburgh Code. Although the term "rescue mission” is not specifically defined under the Code, the proposed use of the property as a shelter for homeless women with counseling services comports with the ordinary meaning or dictionary definition of that term. See Webster's Third New International Dictionary 1930 (3d ed.1986) (defining "rescue mission” as "a city mission established to help persons esp. of low income who are unable to help themselves and are in desperate need of moral and spiritual rehabilitation”). . It should be noted that the Pennsylvania Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101-11201, and the variance criteria specified therein, does not apply to the City of Pittsburgh. E.g., North Point Breeze Coalition v. Pittsburgh, 60 Pa.Cmwlth. 298, 431 A.2d 398 (1981). Rather, the relevant provisions relating to the granting of a variance, which are similar to those of the MPC, are Contained in Section 909.05 of the Pittsburgh Code, which provides as follows: § 909.05 Variances (a) Upon appeal from a decision of the Administrator in accordance with the provisions of this Zoning Ordinance and the rules of procedure of the Board, the Board shall have the power to vary or adjust the strict application of the requirements of this Zoning Ordinance for only a use permitted in the district where the lot is located, in the- case of an exceptionally irregular, narrow, shallow or steep lot or other exceptional physical condition not provided for in the district regulations or as a special exception, where strict application would result in practical difficulty or unnecessary hardship that would deprive the owner of the reasonable use of the land or structures involved, but in no other case. No variance in the strict application of any provisions of this Zoning Ordinance shall be granted by the Board unless it finds: (1)That there are special circumstances or conditions, fully described in the findings of the Board, applying to the land or structure for which the variance is sought, which circumstances or conditions: A. Are peculiar to the land or structure and do not apply generally to land or structures in the neighborhood, and have not resulted from any act of the appellant or his predecessors in title subsequent to the adoption of this Zoning Ordinance, whether in violation of the provisions hereof or not; and B. Are such that strict application of the provisions of this Zoning Ordinance would deprive the appellant of the reasonable use of such land or structure; (2)That the variance to be granted by the Board is: A. For a use permitted in the district; B. One that will require the least modification of the prescribed regulation; and C. The minimum variance that will accomplish this purpose; and (3)That the granting of the variance shall: A. Be in harmony with the general purposes and intent of § 901.06; B. Be in accordance with the general or specific rules herein contained; and C. Be not injurious to the neighborhoods, or otherwise detrimental to the welfare of the people at large.... Pittsburgh Code § 909.05. . Representatives of City Council, the Urban Redevelopment Authority, Catholic Diocese of Pittsburgh, Duquesne University, various community action groups, and even neighbors of the subject properly, all testified before the Board as to their support, including financial support, for the project and the need for community services in this particular area of the City. .As one individual, Tonya Payne, an Executive Assistant to the City councilman who represents the district in which the property is located, stated on the record before the Board, We’re in favor of seeing Bethlehem Haven sit in that building versus that building sitting there forever unoccupied. You know, it doesn’t make sense to let it sit there. No one’s buying it to do any retail or have any commercial thing going on there, so [Bethlehem Haven is] asking to do something with the building. They’re going to renovate it, spend money and also provide a needed service for people who actually need that service. (Notes of Testimony, 1/25/96, at 49; R.R. at 153a.) . Section 989.05(a)(1) of the Pittsburgh Code provides as follows; (a) Special exceptions by Board of Adjustment. (1) Automobile parking space requirements may be modified by the Board in districts other than S-A, RP, CP or AP, where in the particular instance such modification will not be inconsistent with the purpose and intent of this Zoning Ordinance as prescribed in § 909.06(d)(1). . The record also indicates that the subject property is located across the street from a rather sizeable public parking garage. . As a final note with respect to Vitti’s concerns, Bethlehem Haven presented the testimony of Dr. Bruce Arrigo, a Professor of Sociology at Du-quesne University and faculty member of the Center for Social and Public Policy of Duquesne University, who testified that there is no correlation between "any act of crime or deviance” and the proposed project, and that housing homeless women in such a facility would not, in his opinion, "breed crime.” (Notes of Testimony, 1/25/96, at 33; R.R. at 137a.).

OPINION NEWMAN, Justice. The City of Harrisburg and individual taxpayers (the City, collectively) appeal from a Commonwealth Court Order upholding a tax imposed by the School District of the City of Harrisburg (School District) on the privilege of leasing tax exempt realty. Because we hold that the tax unconstitutionally distinguishes between lessees of tax exempt and nonexempt realty, we reverse. BACKGROUND On June 27, 1994, the Board of Directors of the School District passed Resolution 276, entitled “School District Tax on the Privilege of Leasing Tax Exempt Realty,” which imposed a tax of 10% on the rental consideration paid for the privilege of leasing tax exempt realty in the City. The City owns an island in the Susquehanna River known as “City Island,” which is dedicated to park purposes. The island is exempt from real estate taxation. The privilege of leasing property on the island is, therefore, subject to Resolution 276. The thirteen individual taxpayers, parties to this action, own recreation-related businesses operating on City Island that the tax will burden. The School District has never taxed the privilege of leasing private or nonexempt realty in the City. To contest the validity of the tax, the City filed an Action for Declaratory Judgment and Notice of Appeal in the Court of Common Pleas of Dauphin County (trial court). After the parties filed stipulated facts, the trial court held a hearing. On January 6, 1995, the court issued an Adjudication and Decree Nisi declaring Resolution 276 invalid. The court held that the tax contravenes Section 204 of the General County Assessment Law (GCAL), Act of May 22, 1933, P.L. 853, os amended, 72 P.S. § 5020-204, and the Uniformity Provision of the Pennsylvania Constitution, Article VIII, § 1. Following a denial of the School District’s motions for post-trial relief, the court entered a final order affirming the decree nisi. On appeal, the Commonwealth Court reversed the trial court and upheld the tax. In a dissenting opinion, the Honorable Dan Pellegrini, joined by the Honorable Bernard L. McGinley and the Honorable Rochelle S. Friedman, concluded that the tax unconstitutionally distinguishes between lessees of tax exempt and nonexempt property. We granted allocatur to determine whether Resolution 276 violates (1) Section 204 of the GCAL, or (2) the Uniformity Provision of our Pennsylvania Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. GENERAL COUNTY ASSESSMENT LAW With certain exceptions not applicable here, the legislature has granted local taxing authorities, such as the School District, broad taxing power pursuant to Section 2 of the Local Tax Enabling Act (LTEA), Act of December 31, 1965, P.L. 1257, as amended, 53 P.S. § 6902. Pursuant to that section, local taxing authorities may: in their discretion, by ordinance or resolution, for general revenue purposes, levy, assess and collect or provide for the levying, assessment and collection of such taxes as they shall determine on persons, transactions, occupations, privileges, subjects and personal property within the limits of such political subdivisions.... 53 P.S. § 6902. Therefore, the School District may, in its discretion, impose taxes for general revenue purposes pursuant to the LTEA, See F.J. Busse Co. v. City of Pittsburgh, 443 Pa. 349, 279 A.2d 14 (1971) (LTEA grants power to tax any and all subjects unless specifically forbidden by statute). However, Section 204 of the GCAL exempts the following property from all county, city, borough, town, township, road, poor and school tax: All other public property used for public purposes, with the ground thereto annexed and necessary for the occupancy and enjoyment of the same, but this shall not be construed to include property otherwise taxable which is owned or held by an agency of the Government of the United States nor shall this act or any other act be construed to exempt from taxation any privilege, act or transaction conducted upon public property by persons or entities which would be taxable if conducted upon nonpublic property regardless of the purpose or purposes for which such activity occurs, even if conducted as an agent for or lessee of any public authority. 72 P.S. § 5020-204(a)(7) (emphasis added). By its express terms, the Section 204 exemption for public property does not include any activities conducted on public property “which would be taxable” if conducted on nonpublic property. Township of South Park v. County of Allegheny, 163 Pa.Cmwlth. 273, 641 A.2d 20 (1994), allocatur denied, 541 Pa. 647, 663 A.2d 697 (1995). The rules of statutory construction require us to strictly construe statutes exempting persons or property from taxation. 1 Pa.C.S. § 1928(b)(5); Lehigh Valley Cooperative Farmers v. Bureau of Security Employment, Department of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982). Consistent with this rule, the taxpayer has the burden of establishing an exemption from taxation. Id. Here, the City argues that because the School District does not tax the privilege of leasing nonpublie property, the privilege of leasing public property is not “taxable if conducted upon nonpublic property” within the meaning of Section 204. Therefore, the City asserts that the public property exemption prohibits the imposition of Resolution 276. Resolution of this issue turns on whether “taxable,” as used in Section 204, means “actually taxed” or “capable of being taxed” on nonpublic property. We find no ease law that controls our decision in this matter. Township of South Park, cited by the City, is not instructive on this issue. There, the township enacted an ordinance that taxed patrons engaging in amusements within its borders. The tax applied to the patrons of the county’s two golf courses, which were located on public property. The issue on appeal was whether the golf courses were exempt from the amusement tax because of their location on public property. Relying on Weatherly Area School District v. Whitewater Challengers, Inc., 532 Pa. 504, 616 A.2d 620 (1992), the Commonwealth Court rejected the county’s argument that .the golf courses were exempt from the tax pursuant to Section 204(a)(7) of the GCAL. In Weath-erly, this Court upheld an amusement tax on patrons of a whitewater rafting business operating substantially on public property. However, as in Township of South Park, the tax in Weatherly appliéd to all amusements within the area of the taxing authority. In neither Weatherly nor Township of South Park did the precise issue before us arise because neither taxing authority sought to levy a tax solely on amusements located on public property. Because the statute and case law do not define the term “taxable,” as used in Section 204, we construe the term according to its common and approved usage pursuant to the rules of statutory construction. 1 Pa.C.S. § 1903(a). “Taxable,” as defined in Black’s Law Dictionary, means “subject to taxation; liable to be assessed, along with others, for a share in a tax.” Black’s Law DICTIONARY 1459 (6th ed.1990). Consistent with the dictionary definition, the Commonwealth Court, here, held that “taxable” on nonpublic property does not imply that there must be an actual tax on leases of nonpublie property. We agree with the Commonwealth Court’s interpretation of the term, which properly embodies a strict construction of the Section 204 tax exemption. Lehigh Valley. The LTEA and the GCAL, thus, empower the School District to tax the privilege of leasing public property to raise revenue for general purposes, even in the absence of a tax on the identical privilege on private or nonexempt property. Our inquiry, however, does not end here. Because the School District does not actually tax the privilege of leasing nonpublic property, we must determine whether the disparate tax treatment accorded lessees of public and nonpublie property violates the constitutional guarantees of uniformity of treatment and equal protection. UNIFORMITY The Uniformity Clause of the Pennsylvania Constitution provides: All- taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. Pa. Const. Art. VIII, § 1. The principles governing the validity of tax classifications are well-established. Leonard v. Thornburgh, 507 Pa. 317, 489 A.2d 1349 (1985). We evaluate challenges based on the unifor mity and equal protection standards in the same manner. Id. We look to what our Court stated in Leonard: [u]nder the equal protection clause, and under the Uniformity Clause, absolute equality and perfect uniformity in taxation are not required. In cases where the validity of a classification for tax purposes is challenged, the test is whether the classification is based upon some legitimate distinction between the classes that provides a non-arbitrary and “reasonable and just” basis for the difference in treatment. Stated alternatively, the focus of judicial review is upon whether there can be discerned “some concrete justification” for treating the relevant group of taxpayers as members of distinguishable classes subject to different tax burdens. When there exists no legitimate distinction between the classes, and, thus, the tax scheme imposes substantially unequal tax burdens upon persons otherwise similarly situated, the tax is unconstitutional. Id. at 321, 489 A.2d at 1352 (citations omitted). The taxpayer bears a heavy burden to demonstrate that the challenged tax classification is unreasonable. Pennsylvania Builders Ass’n v. Commonwealth, Department of Revenue, 122 Pa.Cmwlth. 493, 552 A.2d 730 (1989), aff'd, 524 Pa. 134, 569 A.2d 928 (1990)(per curiam). Applying these principles in Leonard, we dismissed a challenge to the higher rate of tax imposed on resident wage earners compared with nonresident wage earners in the City of Philadelphia. We found that a reasonable difference, justifying the disparate treatment, exists between the two classes of wage earners, primarily because residents utilize city-provided services to a greater extent than nonresidents. Likewise, in Mandl v. Commonwealth, Department of Revenue, 539 Pa. 277, 652 A.2d 297 (1995), we denied a challenge to a sales and use tax that granted wholesale bakers, but not retail bakers, a processing exclusion to encourage wholesalers to locate in the Commonwealth. Particularly because wholesale bakers employ far more people than retail bakers, we held that a legitimate distinction exists between the two classes that justifies the grant of an exclusion only to wholesale bakers. Conversely, in Columbia Gas Transmission Corp. v. Commonwealth, 468 Pa. 145, 360 A.2d 592 (1976), we upheld a challenge to a foreign excise tax that imposed a greater tax rate on foreign than domestic corporations. We ruled that mere incorporation in another state, without any further concrete justification, is not a reasonable distinction upon which to base unequal tax rates. We also held in Amidon v. Kane, 444 Pa. 38, 279 A.2d 53 (1971), that a personal income tax scheme imposing unequal burdens on identical privileges (of receiving income) violates the Uniformity Clause. There the inequalities resulted from preferences afforded taxpayers depending on factors such as whether the taxpayer was a wage earner or self-employed, or a renter or homeowner. Although we recognized that the legislature may have intended the tax preferences to serve some useful social policy, we held that discrimination between similarly situated taxpayers rendered the tax scheme invalid. Here, the relevant class of taxpayers are those individuals or businesses that lease property within the City of Harrisburg. Applying the test of uniformity to the case at bar, we must decide whether the unequal tax treatment of lessees of public and nonpublic property is based on a legitimate distinction between them. Leonard. The School District identifies only the different impact of real estate taxes upon the lessees as the basis for the classification. According to the School District, the rental rates of lessees of nonexempt property include a share of the owner’s real estate taxes. Therefore, the School District concludes that Resolution 276 “makes a perfectly reasonable distinction between lease transactions that are completely unaffected by real estate taxation.” Appel-lee’s Brief at 15. We disagree. First, assuming that real estate taxes affect the two classes of lessees differently, classifications made by other tax legislation cannot remedy the nonuniformity of Resolution 276. Cf. Commonwealth v. Life Assurance Co., 419 Pa. 370, 214 A.2d 209 (1965). In Life Assurance, we held that a nondiscriminatory tax does not become constitu- tionaUy tainted by the cumulative effect of other taxes according distinctive treatment to various classes of taxpayers. The specific tax in question levied an identical gross premiums tax on domestic life insurance companies and foreign insurance companies. The domestic companies argued that the imposition of a gross premiums tax on domestic companies resulted in an unequal tax treatment because the domestic companies were already subject to net income and capital stock taxes, which were not applicable to the foreign companies. We held that because the gross premiums tax did not distinguish between domestic and foreign companies, it was not rendered unconstitutional by reason of classifications made by other legislation. Thus, in Life Assurance, the differing preexisting tax burdens did not render the domestic and foreign taxpayers dissimilar for purposes of our analysis of the nondiserimi-natory gross premiums tax. By extension, here, the nonuniform treatment of lessees of exempt and nonexempt property arising from Resolution 276 is not legitimized by reason of other legislation according the lessees distinctive treatment. Second, “[ajmong the School Board’s considerations in adopting Resolution 276 was its assumption that the consideration paid for leasing tax exempt property does not reflect the payment of real estate taxes by the owner of the property.” R. at 26a (emphasis added). In support of this position, the School District presented the trial testimony of John J. Buckley, Jr., President of Harristown Development Corporation, which leases nonexempt property to retail tenants in the City. He stated that the corporation’s leases contain “pass through” costs, in addition to minimum rent, which allocate to the tenant a share of the corporation’s real estate taxes. R. at 102a-104a. The trial court made no specific findings on this issue. However, assuming the credibility of Mr. Buckley’s testimony, it does not establish any concrete distinction between the rental consideration paid by lessees of exempt and nonexempt property. Although the rental consideration for nonexempt property may incorporate a percentage of the owner’s real estate tax liability, not contained in the rent of exempt property, we will not presume that, in a competitive market, a comparison of the rental rates for nonexempt and exempt property reflects such a difference. Because Resolution 276 distinguishes between lessees of public and nonpublic property, in the absence of a reasonable and just basis for the difference in treatment, we conclude that the tax violates-the Uniformity Provision of the Pennsylvania Constitution. Accordingly, we reverse the Order of the Commonwealth Court. . As found by the trial court, the boundaries of the City and the School District are coterminous. More than 42% of the assessed value of all real property in the City is listed as exempt from real estate taxation. . The City brought this action in equity despite the existence of a statutory remedy pursuant to Section 6 of the Local Tax Enabling Act (LTEA), Act of December 31, 1965, P.L. 157, as amended, 53 P.S. § 6906, which provides, in part: No tax levied for the first time by any political subdivision to which this act applies shall go into effect until thirty days from the time of adoption of the ordinance or resolution levying the tax. Within said thirty days, taxpayers representing twenty-five percent or more of the total valuation of real estate in the political subdivision as assessed for taxation purposes, or taxpayers of the political subdivision not less than twenty-five in number aggrieved by the ordinance or resolution shall have the right to appeal therefrom to the court of quarter sessions of the county upon giving bond.... No such appeal shall act as a supersedeas unless specifically allowed by the court to which the appeal is taken or a judge thereof. It shall be the duty of the court to declare the ordinance and the tax imposed thereby to be valid unless it concludes that the ordinance is unlawful or finds that the tax imposed is excessive or unreasonable; but the court shall not interfere with the reasonable discretion of the legislative body in selecting the subjects or fixing the rates of the tax. The court may declare invalid all or any portion of the ordinance or of the tax imposed or may reduce the rates of tax. 53 P.S. § 6906. The City made a good faith, but unsuccessful, attempt to identify twenty-five aggrieved taxpayers pursuant to the LTEA. Nonetheless, both the trial court and the Commonwealth Court assumed equity jurisdiction because of the substantial constitutional challenges to the validity of Resolution 276 and the inadequacy of the statutory remedy. We agree with the Commonwealth Court and do not further address the issue. Borough of Green Tree v. Board of Property Assessments, 459 Pa. 268, 328 A.2d 819 (1974); Scott v. Palmerton Area School District, 63 Pa.Cmwlth. 528, 439 A.2d 859 (1981), aff'd, 502 Pa. 431, 466 A.2d 1029 (1983) (per curiam ). . The legislature has the discretion to exempt certain public property from taxation pursuant to Article VIII, Section 2(a)(iii) of the Pennsylvania Constitution, which provides that ‘‘[t]he General Assembly may by law exempt from taxation ... [t]hat portion of public property which is actually and regularly used for public purposes....” Township of South Park v. County of Allegheny, 163 Pa.Cmwlth. 273, 641 A.2d 20 (1994), allocatur denied, 541 Pa. 647, 663 A.2d 697 (1995). . We also note that the trial court found, but did not discuss, that the individual taxpayers operating businesses on" City Island pay to the City approximately $50,000.00 in permit fees.

The opinion of the court was filed Per Curiam. Whatever might be the result in a common law action, we are clearly of the opinion that the parol evidence is insufficient to change the written agreement. The evidence so far as it goes, tends to prove a new and independent parol contract, rather than any change of an existing written contract. It is true the appellant is willing to accept a conveyance of a less number of acres than be claimed in tlie bill filed. If that was the only difficulty in the case perhaps a decree for the lesser number might be sustained. There are several other objections. Among them is the fact that the tender was not made on the basis now claimed. This claim is not only in direct conflict with his oath in the bill filed, but also with his testimony before the Master. Conceding be was honestly mistaken, yet it presents a case which is insufficient to move a chancellor to decree specific performance of the alleged contract. Decree affirmed and appeal dismissed at the costs of the appellant.

Opinion by Mr. Justice Mitchell, Stripped of irrelevant circumstances this case resolves itself into the simple question whether a plaintiff who has been paid once is entitled to demand payment a second time because his authorized collector, who got the money, retained part of it with plaintiff’s consent, and failed to pay it back. The facts as found by the learned judge below are that plaintiff having done the work which entitled him to receive the third installment of his pay, authorized Duffin to collect it, and for that purpose gave him a written receipt made out to the appellant the Real Estate Title Insurance Company, and thereupon that company paid Duffin the money. In law that was the same as a payment to the plaintiff in person, and made an end of his claim. What inducements Duffin held out to plaintiff to authorize him to collect, and what he did with the money are wholly immaterial. In fact plaintiff gave Duffin the receipt to enable him to collect the money, with the understanding that Duffin should use part of it for other purposes, but it would have made no difference if he had not so agreed, and Duffin had embezzled or lost the money. It is said that the appellant has not shown that it lost anything. It was not required to make any such proof. A debtor who has paid his debt once necessarily incurs a loss if he is made to pay it again. But in fact the appellant was agent for Corr the mortgagee, and surety that his mortgage should not be prejudiced by mechanics’ liens. It had therefore a direct and immediate interest that the disbursements it was making should go to the parties entitled under the contract, and thus prevent the filing of liens. For this purpose it paid the money to plain tiff’s agent, wbicb was tbe same as paying it to plaintiff himself, and put an end to his claim against the appellant and against the buildings. Judgment reversed and judgment ordered to be entered for defendants.

Per Curiam, It was claimed by the plaintiff and testimony was introduced for the purpose of proving that the defendant company was bound to ship the goods in question in a ventilated or other suitable kind of special car; and, not having done so, it is liable in damages for the injury resulting from the excessive heat of the close box car, etc. An examination of the testimony shows that it is insufficient to justify the conclusion that the company was under any such obligation, contractual or otherwise. The shipping receipt contains a clause exempting the carrier from loss or damage by causes beyond its reasonable control .... or by any of the causes incident to transportation, such as chafing, heating, freezing, leakage, .... or any other reason not directly traceable to the negligence of ” its servants. We find nothing in the testimony to take the case out of the operation of this exempting clause. There was no error in refusing to take off the judgment of nonsuit. Judgment affirmed.

Opinion by Mr. Justice Dean, McGinn, the use plaintiff, under a contract with the city, payed Kirkbride street on which defendants’ lot fronts, and filed a lien for the same. In sci. fa. on the lien, defendants pleaded a failure of contractor to properly do the work. Among other witnesses to prove faulty work, defendants called T. B. M. Addis, agent for Citizens’ Municipal Association, who testified to the defective construction of the pavement. On cross-examination, plaintiff’s counsel proposed to ask the witness whether he had not, in a letter to the president of the Municipal Association, falsely accused John Martin, assistant commissioner of highways, in charge of this work, through the false .swearing of Clerk Isaac Martindale, of corruptly receiving money not earned and thereby defrauding the city; the purpose of the offer being to affect the credibility of the witness. To this, defendants objected, on the ground that the testimony was irrelevant. The court permitted the question, and defendants excepted. This, and another question of similar import, which last was not answered, constitute the assignments of error preferred by appellants. So far as the fact proposed to be proved in response to the interrogatory is concerned, no harm resulted to defendants, for the witness denied he had made such false report. But the interrogatory was propounded orally in the hearing of the jury; •appellant argues, it should have been reduced to writing and submitted to the court, or have been made at side bar out of hearing of the jury. That, although the answer did defendants no harm, the statement, in substance, of the expected answer, with detailed circumstances as to time and place, necessarily prejudiced defendants’ case. We are of opinion, the fact proposed to be proved was evidence as bearing on the credibility of Addis. The work for which the lien had been filed, was constructed by the city under the supervision of its sworn officer, Martin, •and had been accepted by it as well done and according to the specifications. Unless the weight of the presumption in plaintiff’s favor thus raised was rebutted by direct and positive evidence to the contrary, defendants’ case failed, for in their notice of special matter, they averred the work had not been done in .accordance with the contract, proposals and specifications. This was an indirect attack on either the competency or integrity of the supervising officer, Martin. Addis testified in support of this averment, that instead of the street being graded out fifteen inches below the top of the pavement, it had only been graded eight to nine inches; that the blocks had been laid on a very thin coat of gravel or fine sand, and spaces left between the blocks not filled in, and the bed underlying was of loam. If this were true, the work did not come up to the specifications, and there was gross dereliction on part of the officer, Martin,, whose duty it was to see that the contractor performed his work according to his contract. If Addis were believed, the presumption that the city’s, sworn officer had done his duty, was effectually rebutted. But plaintiff attacked the credibility of Addis, and alleged that he was spiteful and prejudiced against Martin; that his testimony was-prompted by ill feeling towards him, and they proposed to ask him whether he had not at another time falsely and maliciously accused Martin of corruption as an officer, in connection with the very work in that territory, of which the pavement in front of defendants’ property was a part, by receipt of the fruits of perjury by a clerk. This was not an independent fact; not as if the witness had been asked whether he had not at some time- or other made a false accusation against Martin; but it was whether he had not once before, in connection with a part of the work, which was the subject of dispute, made a false accusation against Martin. If he had done so, the jury might fairly infer his malice continued unabated, and that his testimony now, which was, in effect, an indirect accusation of Martin, was also prompted by malice; that his attitude in this issue was not solely to disclose the truth, but to gratify his hatred of Martin. Observation and experience have taught us to act in the gravest affairs of life in thus judging the credibility of testimony, and we think there was no error in permitting the question. However, the witness denied making the alleged false statement ; but defendants aver, the offer having been made in the hearing of the jury to prove the fact, that, of itself, to some degree, had the same effect as if it had been proved, therefore it was error to state the offer in open court. It is doubtless true, an overruled offer in the hearing of the jury to prove certain facts often prejudices them against the party to whom the proposed proof is unfavorable. The jury may and often do conclude the party making the offer is able to prove the facts stated in it, and but for the adverse ruling of the court would have done so; and this is the reason for side bar and written offers. But when the oral offer is admitted, and the proof of it wholly fails, surely the adverse party has no reason to complain that the jury may have been prejudiced. If any prejudice resulted, the natural tendency was to arouse it against the party making the unfounded offer or groundless accusation. The- second specification of error is of the same character. Both are overruled, and the judgment is affirmed.

Opinion by Mr. Justice Mitchell, The first three assignments of error are in substance that defendant was not allowed to prove that Giesey, the second guardian of Mrs. Bentzel, might have made a part at least of the money due from Spahr, his defaulting predecessor in the guardianship, by asserting his ward’s title to the land levied upon as Spahr’s, on the ground that it was bought with his ward’s money, and that the second guardian having thus had in his hands the means of payment, and letting it go unclaimed, the sureties of the first guardian were discharged. But waiving the question whether a creditor’s declining to act on a mere notice that as a result of a law-suit he may obtain satisfaction, would under ordinary circumstances discharge a surety, there were two conclusive reasons why no such result should follow in the present case. First, the default, if it was one, of the second guardian could not discharge the sureties of the first guardian from the consequences of a previous default of their principal: Com. v. Brice, 22 Pa. 211; and secondly, the decree of the orphans’ court had fixed the liability and its amount, both as to Spahr and his sureties: Com. v. Gracey, 96 Pa. 70. There was no error therefore in excluding these offers of evidence which would have been irrelevant if admitted. The real question in the case was whether the release of May 25, 1894, was valid. The appellants with J. S. Shaffer, an uncle of Mrs. Bentzel, went to her house, taking with them the release previously prepared, and in the absence of her husband obtained her signature to it. She alleged that she was induced to sign it by certain false and fraudulent representations, especially that her counsel agreed to the advisability of such a settlement, and that one of them had said she would probably get little or nothing out of her case by further litigation. The appellants denied that any such representations were made, but this being settled against them by the verdict, they now contend that the evidence was not sufficient to justify the court in submitting the question of fraud to the jury. It is quite evident, even from the testimony produced by the appellants, that Mrs. Bentzel desired to consult her husband and her lawyers before making any settlement of her suit, or executing any papers in relation to it, and that her reluctance to do so without consulting them was overcome by representations then made to her. It would not serve any useful purpose to discuss this evidence in detail. It is enough to say that it not only was sufficient to require submission to the jury, but that it would not have supported any other verdict. It is however further contended that it was error to permit Mrs. Bentzel herself to testify as to the motive or inducement which led her to sign the release, and Spencer v. Colt, 89 Pa. 314, Juniata Building Assn. v. Hetzel, 103 Pa. 507, and Thomas v. Loose, 114 Pa. 35, are cited in support of this contention. That the rule there laid down was entirely sound there is no need to question, but it is very clearly inapplicable to the present case. In Spencer v. Colt, all that was ruled was, in the language of the court, “ everything that was said and done at the time .... was received. The unexpressed intent, motive, or belief existing in Mr. Manser’s mind when he signed the papers could not aid the jury in ascertaining whether the language or conduct of the plaintiff had been such as to create such an intent, motive or belief.” The case is cited and the principle thus stated by the court below in Nat. Bank of Catasauqua v. North, 160 Pa. 303, — “ the ordinary rule as to transactions between men (is) that one’s undisclosed intent is not to affect the other,” — and that opinion was adopted by this court. So in Building Assn. v. Hetzel it was said that “ a party to a contract shall not testify his undisclosed purpose or intention, to nullify words or acts relied on by others, which in themselves prima facie evidence the agreement.” In Thomas v. Loose an offer was made inter alia to prove a certain oral agreement at the time of a written contract, and that “ it was the inducing circumstance on the part of the defendants to sign the agreement.” What this court said was, “ It was competent to prove all that was said and done. It was for the jury to determine from what was said and done at the making of the contract whether the oral agreement, if proved, induced the defendants to sign the written one. The defendants are not permitted to testify their unexpressed intent, motive or belief at the time they signed the contract. The thoughts of one party cannot be proved to bind the other.” This last sentence shows the principle of the rule fairly to be gathered from the cases, “the thoughts of one party cannot be proved to bind the other,” or as it is more fully expressed in Building Assn. v. Hetzel, “ a party to a contract shall not testify bis undisclosed purpose or intention, to nullify words or acts rebed on by others, which in themselves prima facie evidence the agreement.” This however is very different from testifying the fact that false and fraudulent representations were the consideration or inducement to the party’s action. This is one of the facts which is always part of the res gestee, and which it was always competent for the party to prove. And now that the party is a witness there is no sound reason why be should not prove it by bis own testimony so long as be is confined to the facts, and does not undertake to contradict bis words or acts by an undisclosed motive or intent. Such testimony is in exact analogy with the ordinary rule in regard to the proof of a cotemporaneous parol agreement or promise, to vary or even contradict a writing, which requires the party to prove that it was a substantial part of the consideration without which the writing would not have been signed: Honesdale Glass Co. v. Storms, 125 Pa. 268, a fact which no case that I am aware of bolds the party incompetent to prove by bis own testimony, and which can rarely be proved in any other way. An equally close analogy is found in the rule that a vendor seeking to rescind a sale on credit, for fraudulent representar tions as to the buyer’s solvency, etc., must show that except for such representations the credit would not have been given, and no case has been found which bolds that be may not prove this fact by bis own testimony. In the present case Mrs. Bentzel was called to prove the statements made to her, and they were shown to be not only false and fraudulent, but also of the most persuasive character, being representations of the opinion and advice of her counsel, as well as of her uncle whom she supposed to be acting as her friend. It was almost superfluous in the face of the plain facts to ask her in addition whether they were the moving consideration or inducement to her action, but there was no error in permitting her to say so. Judgment affirmed.

Per Curiam, We concur in the conclusion reached by the learned court below, viz: that the affidavit of defense was insufficient to carry the case to a jury. There was therefore no error in making the rule for judgment absolute. Judgment affirmed. •

Per Curiam, In disposing of appeals from refusal of the court below to enter judgment for want of a sufficient affidavit of defense, the averments of fact in the affidavit, so far as they are relevant and material, must be accepted as verity. As has been repeatedly said, such rules are in the nature of demurrers to the affidavits of defense. Tested by that principle, we think the defendant's averments of fact, in this case, are sufficient to prevent a summary judgment and thus send the case to a jury. There was, therefore, no error in discharging the rule for judgment. Inasmuch as the case goes back for trial by jury, it is neither necessary nor desirable to discuss questions that may then arise. Appeal dismissed at plaintiff’s costs, without prejudice, etc., and record remitted for further proceedings.

Opinion by Mr. Justice Green, In this case the contract between the original contractor and the defendants contained the following stipulation, “ And provided further that before the last payment is made all releases must be properly signed by the parties furnishing labor and materials on the building, that he (the architect) has carefully examined the records and finds no liens or claims against said works, or on account of the said contractor; neither shall there be any legal or lawful claims against the contractor, in any manner, from any source whatever, for work or materials furnished on said works..” Of course there is nothing in this stipulation nor anywhere else in the contract, that would prevent the plaintiff, in his mere capacity of subcontractor, from filing a lien against the defendant for work or materials furnished by him. But the question in controversy arises upon a bond of indemnity made directly by the plaintiffs’ testator, Francis Gannon, and one Gilbert F. Meyer as sureties, and David M. White, the original con tractor, as principal, the condition of which was “ that if the said. David M. White shall duly perform said contract then this obligation is to be void, but if otherwise the same shall be and remain in full force and virtue.” The literal performance of the original contract by the contractor, requires that there shall be no lawful claims against the contractor “ in any manner from any source whatever for work or materials furnished on said works.” If now the plaintiffs’ testator held a claim as a mechanic’s lien creditor against the building for work or materials furnished to the contractor and a recovery is permitted on it, his obligation as surety is broken and his estate must immediately make good the loss to the defendant. We held in Benedict v. Hood, 134 Pa. 289, confirmed in Iron Works v. O’Brien, 156 Pa. 172, that where the surety was himself a claimant to a lien on the building the lien could not be sustained because the suretyship must be deemed a waiver of any right of lien in favor of the surely. We have reviewed this subject and followed the same ruling in an opinion just filed in the case of Rynd v. Pittsburg Natatorium, No. 229 Oct. T., 1895, ante, p. 237. While there is some difference in the precise terms of the plaintiff’s contract of suretyship between this case and that, there is no substantial difference in the legal effect resulting from both. It is inconsistent that one who agrees to guarantee that there shall be no lawful claims for work or materials furnished to the original contractor, shall himself be permitted to occupy such a position. He cannotbe permitted to recover without violating his contract of suretyship, and he must therefore be held to have waived the right to file any lien in the face of his contract. The reasoning in the opinion just filed controls the decision of the present case and therefore need not be repeated. Judgment affirmed.

Mr. Justice Paxson delivered the opinion of the court, This was an action of covenant upon' a policy of insurance. The plaintiff was insured in the defendant company upon his house and furniture as follows: $1,000 upon his house and $200 upon his furniture. The house was valued in the application at $1,400 ; the furniture at $400. On the night of August 7th, 1877, while the plaintiff and his wife were absent from home, the house and all its contents were destroyed by fire. Upon the trial below the learned judge gave the jury a binding instruction to find for the defendant. If for any reason this instruction was proper, we would not reverse even though some technical errors appeared upon the trial. It was claimed by the defendant that there was a gross over-valuation of the property insured, and that incumbrances had been placed upon the property after the date of the policy and before the fire, which reduced the real interest of the insured to an amount less than the sum insured, and that these were both breaches of the warranty contained in the policy. The application contained this provision: “and it is expressly understood and agreed that this application and survey shall be a warranty on the part of the assured and constitute a part of the contract, and that the said company will not be bound by any act or statement made to or by the agent, restricting its rights or varying its written or printed contracts, unless inserted in this application in writing.” The thirteenth interrogatory in the application was as follows: “If any judgments, liens or mortgages, state particularly the amount, and whether there is any insurance by mortgagee.” To which the assured made answer: “I have $500 claim on one acre of ground against, but not on building.” The thirteenth “ condition of insurance ” provided inter alia : “ And should there during the life of this policy, an incumbrance fall, or be executed upon the property insured sufficient to reduce the real interest of the insured in the same to a sum only equal to or below the amount insured, and he neglect or fail to obtain the consent of the company thereto, then and in that case the policy shall be void.” This provision is based upon the theory, to state it mildly, that the owner of a house, incumbered to a part or the whole of its value, has not the same motive to preserve his property from fire as he would have .in case it were free from incumbrance. There is nothing in the provision itself that offends public policy or good morals. To meet the allegation of over valuation the plaintiff alleged that he was an ignorant German and did not understand the English language. He also offered to prove (see sixth assignment) “That at the time of the application for insurance, Frank Laubach, the agent of the insurance company, made all the answers in his own handwriting to the questions in the application, and stated to the witness that on the payment of his premium he would get $1,200 if a fire occurred by which his property was totally destroyed, and that Frank Laubach valued the property at $1,400 for the building and $400 for his household and kitchen furniture, making in. all $1,800, and that Frank Laubach fixed the amount of insurance, which the company would take at $1,200, and based the premium thereupon.” This offer of evidence was rejected by the court. We do not assent to the proposition that the offer was incompetent because Laubach was the agent of the assured in filling up the application and forwarding it to the company. He was not the agent of the assured. The latter had not employed him for any purpose. He was the agent of the defendant company and as such called upon the assured and solicited a policjq and having obtained his consent, proceeded to fill up the application for him to sign. As to all these preliminary matters' the person soliciting the insurance is the agent of the company. So much was said in Columbia Insu ranee Company v. Cooper, 14 Wright, 331. It is true that section 15 of the by-laws of the company provides that: “ In all cases shall the person forwarding applications be deemed the agent of the applicant, and not of the company, in any preliminaries to such contract or proposal.” The policy provides that “this policy is made and accepted in reference to the by-laws of this company,” and from this it was argued that by the terms of the contract of insurance the agent of the company becomes the agent of the assured. This court, in the case above cited, characterized a somewhat similar provision, as a “cunning condition.” The court might have gone further and designated it as a dishonest condition. It was the assertion of a falsehood, and an attempt to put that falsehood into the mouth of the assured. It formed no part of the contract of insurance. That contract consists of the application and the policy issued in pursuance thereof. In point of fact the assured does not see the policy until after it is executed and delivered to him. In many instances it is laid away by him and never read, especially as to the elaborate conditions in fine print. Grant that it is his duty to read it, his neglect to do so can bind him only for what the company had a right to insert therein. Ho was not bound to suppose that the company would falsely assert, either by direct language in the policy, or by reference to a by-law, that a man was his agent who had never been his agent, but wlio was on the contrary, the agent of the company. Notwithstanding this was a mutual company, the assured did not become a member thereof until after the insurance was affected. Hence a by-law of the company of' which he liad no knowledge, and by which he was not bound could not affect him in matters occurring before the granting of the policy : Columbia Ins. Co. v. Cooper, supra. And even a by-law of a mutual company which declares that black is white does not necessarily make it so. But the difficulty here lies deeper. It was competent, under the authorities, to show that Laubach, the agent, had deceived the assured, when he came to fill up the application, either by a misrepresentation of facts, and by setting down false answers in place of those that had been given. But the offer does not go to this extent. It shows no fraud practised upon the assured. On the contrary, if the agent practised a fraud, it was a fraud upon the company, by inducing them to issue a policy upon property largely in excess of its value, for the sake of the commissions. This brings us to the question of what was the real value of the property. I give what arc the undisputed facts. The building insured was 18x22 feet, two and a half stories high. It was a frame built of hemlock, painted only on the outside, and was without a cellar. Any one who has the slightest knowledge of building can see at once that $1,400 was a grossly excessive valuation. But we will not deal in generalities ; we will take the undisputed evidence. The plaintiff himself called as a witness, the carpenter who erected the building, and he puts the cost of it from $550 to 650, and it was built at a time when labor and building material were higher than at the date of the insurance. Thomas E. Osmun, a witness for the defendant, said it was not worth more than $550 when built; and that when it burned down, he estimated its value at $450. Thomas P. Bachman, called by the defendant, said he would have replaced the building after the fire for $300. This was all the evidence upon the subject. So that it appears from the plaintiff’s own showing that the building was at no time worth more than $650, and as he was the person who paid for its construction, he must have known this fact when he applied for the insurance. Granting that the assured was an ignorant German, who did not understand English, the evidence discloses the fact that he was returning his building at a valuation more than double the amount he had paid for it. There was no fraud practised upon him and under the circumstances it was not error to reject the offer. The value of the property bears closely upon the question of the incumbrances. The learned judge charged the jury (see 11th assignment), that: “Now, the undisputed evidence in this case is that after the date of the policy and before the fire, a number of judgments were entered up against the insured, which reduced the real value of the property insured below the amount of the insurance. It is not even pretended here, that the company were notified of these incumbrances, and there is no explanation or excuse given for want of notice. The 13th condition of the policy is one of the vital conditions upon which the company agreed to be bound to pay the amount of the insurance. It has not been complied with, and therefore there can be no recovery in this action upon the part of the plaintiff.” The learned judge was slightly inaccurate in this statement. One of the judgments to which he evidently referred was the Yeager judgment for $668.55, which was not entered until after the fire, and was for the same debt secured by a mortgage, which the assured refers to as a “ claim of $500 ” in his application. We throw this out of the case. In point of fact there were two claims entered against the property during the life of the policy, viz; a judgment of George Snyder for the sum of $50, and a mechanics’ lien of $62.50. There are authorities in New York and elsewhere which hold that mechanics’ liens are not incumbrances within the meaning of such clauses in policies of insurances : Green v. The Ins. Co., 82 N. Y., 517 ; Baloy v. The Ins. Co., 80 Id., 21; Merrill v. The Ins. Co., 73 Id., 452. The reason appears to be that such liens are entered without the act or consent of the assured. In view of the peculiar language of this policy, the application of those eases, if no other reason existed, may well be doubted. We leave that question, however, until a case arises in which it is essential. It is not so here. The single judgment of Snyder, small as the amount is, was sufficient to avoid the policy, for tire reason that it reduced the real interest of the plaintiff below the amount insured. This is not very important in view of the admitted fact that the property was rated at more than double its value, and insured at almost double. The judgment still further reduced it by its amount. Under sucb circumstances we find no error in the instruction complained of. There was an offer to prove that the assured informed the agent at the time the application was mudo that there were incumbrances upon the property, and that the agent told him that would make no difference. This offer the court rejected. See eighth assignment. In point of fact there -were no incumbrances upon the property at that time, except the one noted in the application. In the light of this the offer was properly rejected. It had no significance. This view of the case renders a discussion of the remaining assignments unnecessary. Judgment affirmed.

Mr. Justice Sterrett delivered the opinion of the court, Our process of attachment execution is necessarily against the defendant in .the judgment as well as the garnishee. If duly served it is the duty of each, respectively, to appear and present his defence, if he has any. Two separate and distinct issues may thus be formed, one as to the defendant in the judgment and the other as to the garnishee. The former may plead payment, or any other matter of defence, to the judgment, that would be available on a scire facias to revive the Same. In this case issue was joined on special plea of defendant below, setting up his discharge in bankruptcy as an extinguishment of personal liability for the debt evidenced by the judgment, and therefore a bar to the attachment. His contention was that the original debt, merged in judgment before proceedings in bankruptcy were commenced, was provable against his estate, and hence his personal obligation to pay the same was wholly extinguished by the subsequent order of the District Court of the United States forever discharging him from all provable debts and claims existing on the day his petition for adjudication as a bankrupt was filed in that court. The facts of which this proposition is predicated were not disputed. The judgment note was given and judgment entered thereon before defendant’s petition in bankruptcy was filed, and subsequently the attachment execution was issued. The debt was clearly provable under the bankrupt law ; but, if plaintiff was willing to rely on the lien of his judgment, he was not bound to prove it against the bankrupt's estate. If, however, for any such reason he declined to prove it, the defendant was nevertheless discharged from personal obligation to pay it, as fully as if the claim had been proved generally against his estate. It follows, therefore, from the undisputed facts, in regard to the nature and character of the claim, that the personal obligation of defendant below was extinguished by the discharge, unless it was preserved and continued in full force by virtue of the waiver, contained in the judgment note, in the words following, to wit: “ And do hereby further waive all rights under the exemption laws of the Commonwealth of Pennsylvania, and all bankrupt laws of the United States which are now in force or that may be hereafter in force.” It was virtually conceded in the court below that if it were not for the waiver the discharge in bankruptcy would be a complete defence to the proceeding. The question therefore is, did the waiver above quoted keep alive defendant’s personal obligation to pay the debt, notwithstanding his discharge as a bankrupt? The learned judge, considering the waiver effective for that purpose, substantially instructed the jury that it was in the nature of a covenant, on the part of defendant, not to interpose his discharge as a defence either to the note or the judgment in, which it was merged; and, therefore, directed a verdict in favor of plaintiff for the balance claimed to be due. If this construction is unwarranted, the error was radical and the judgment must be reversed. The power delegated to the general government to establish “uniform laws on the subject of bankruptcies throughout the United States” is grounded on considerations of public policy, supposed to be promotive of the greatest good of the greatest number rather than the strictly personal benefit of any individual or class; and hence we think it is contrary to that policy to permit importunate creditors to exact from embarrassed debtors, who are alwaj’s more or less in their power, a waiver of the benefits intended to be secured by beneficent legislation, and thát too in advance of actual insolvency and in anticipation of the circumstances which would entitle them to the benefits, not intended for themselves alone but for the community at large. To reeognize such waivers as effective would to some extent interfere with the practical operation of a general bankrupt law such as was recently in force, and perhaps enure to the benefit of some individuals at the expense of others. But, aside from this, the waiver was not interposed in time. When defendant below applied for bis .discharge under the bankrupt law, all his creditors, including the plaintiff, were notified and had an opportunity of objecting to his discharge ; but no objection was interposed, and the court having exclusive jurisdiction of the subject ordered his discharge. That absolved the bankrupt from all debts provable against his estate and claims existing on the day his petition for adjudication was filed. The validity of that decree cannot now be questioned. The matter is res adjudieata and cannot be reviewed in this collateral proceeding. For the reason that the waiver is contrary to public policy and therefore void, and for the further reason that the order of discharge in bankruptcy is absolutely conclusive of any question that could have arisen on a waiver given in anticipation of bankruptcy, the several assignments of error are sustained. Judgment reversed.

Mr. Justice Gordon delivered the opinion of the court, John Grim, by his last will, devised and bequeathed as follows : “ I give, devise and bequeath all the rest, residue and remainder of my estate, real, personal and mixed, wheresoever and whatsoever, unto my executors hereinafter named, and the survivor of them, and the heirs, executors, administrators and assigns of such survivor, upon trust, to take, collect and receive the rents, issues and profits of my real estate, and the income of my personal estate, and to pay out of said rents, issues, profits and income of my said residuary real and personal estate, the sum of twelve hundred dollars per annum in equal quarterly payments, the first payment to be made within three months after my decease unto my said wife, Sophia Grim, for and during all the time she shall remain my widow; and if there should be any surplus income of my said real and personal estate in the hands of my said executors after payments to be made as aforesaid by them to my said wife of twelve hundred dollars in each and every year in quarterly payments as aforesaid, I do order and direct them, my said executors, and the survivors and survivor of them, to invest such surplus income from time to time, and to call in, convert, and re-invest the same as often as they or he shall deem proper or necessary, in such securities as they, my said executors or the survivor of them, maj1-, in their or his discretion, deem most advantageous to my estate, until the decease or marriage of my said wife, whichever event may first happen.” That under the Act of 1853, accumulations as directed in the above recited testamentary clause, are void and of no effect, is no longer an open question: Washington’s Estate, 25 P. F. S., 102; McKee’s Ap., 15 Nor., 277; Stille’s Estate, 4 W. N. C., 42; Carson’s Ap., 3 Out., 325. It follows, that as by reason of the provisions of the Act mentioned, all accumulations except for minors and charities are void, the provision above set forth, by which the accumulations are expressly reserved for the residuary estate, is unlawful and nugatory. The only question left for our consideration is, to whom does the accumulating fund thus left, undisposed of, belong ? Not to the residuary legatees, for they are not the persons who, “ under the uses or trusts of the deed, will or other conveyance, directing such accumulation, would for the time being, if of full age be entitled to the rents, issues, interests and profits so directed to accumulate.” They cannot take presently, but only after the death or marriage of Sophia Grim, and as the accumulations can never form part of the residuary estate, these residuary legatees can have no interest in them, present or prospective. The case is very much like McKee’s Ap., supra. In this case there was no disposition whatever made by the testator of the surplus rents, issues and profits which, after his death, arose from his estate, and it was therein held that, “ under the operation of the will before us there is no direction in favor of any person or persons; on the other hand, if accumulation is allowed at all, it must be al lowed to swell the general estate until the death of Mrs. McKee, when, as part of the corpus, it must go to whomsoever at that time may be entitled. No ingenuity can reconcile a piovision of this kind with the statute, and it must, therefore, fall.” The result was that the surplus increase of the estate was, as in Washington’s Estate, decreed to the heir at law. To whom then, shall the rents, issues and profits out of which the accumulations, directed by the will, were to arise, be awarded? The Act itself answers this question as follows: ‘•And in every case where any accumulation shall be directed otherwise than as aforesaid, such direction shall be null and void, in so far as it shall exceed the limits of this Act; and the rents, issues, interests and profits so directed to be accumulated, contrary to the provisions of this Act, shall go to and be received by such person or persons as would have been entitled thereto, if such accumulation had not been directed.” In other words, to the testator’s widow and heirs or next of kin. This disposes of the main matter in dispute, but there is another of minor importance, and which, though arising in the form of an exception, has not been thought worthy of a discussion by the counsel on either side. The exception is, that the court erred in awarding the entire balance of the present account to the widow. This is answered by the auditing judge of the court below in this manner : “ As the heirs and next of kin. under the distribution made alreadjq have received more than one half the surplus accrued, the entire balance shown by the present account has been awarded to the widow.” There can be no valid objection to the judgment here announced; the first account was but partial, embracing only the rents, issues and profits then accrued, and whilst the decree of confirmation was conclusive on all therein contained, yet as the widow’s claim was not embraced in that account, the decree can in no wise affect her rights; Leslie’s Ap. 13 P. F. S., 355 Shindel’s Ap., 7 Id., 43; Kline’s Ap., 5 Nor., 363. The question involves not so much the previous account, which has been closed up, and is now out of the way, as the equitable status of the parties with reference to the fund in hand. The doctrine held in Williams’ Law of Executors, 1088, (7th ed.) is undoubtedly the true one; that is, whore a creditor goes into the Master’s office to establish his debt, he must not only show what was due at the time of the death of the debtor, but also what has been received since that time; and this for the reason, that it being a leading equitable maxim that equality is equity, the creditors who have been paid in part ought not to receive any other part either of the legal or equitable assets, until the other creditors have been paid the same proportion of their debts. The question thus being one simply of payment, it does seem to us that it cannot make much difference how the payment was made, whether by the executor, on his own responsibility, or by distribution of a previous fund under the decree of the court, and this rule must undoubtedly apply to the claims of the present distributees. How stand these several claims; what proportion has been paid on each? And the manner of payment is a question of minor consequence. The previous decree neither altered the character of the claims nor the equities of the parties. When that decree was made the widow was entitled to the one half of all the accumulations, not only of those which had then accrued, but that'had and would accrue between the date of the death qf the testator, and her own death or marriage, and the heirs were entitled to the other half. How then, did or could the decree, which related only to a partial fund alter or destroy this right established by the law of the Commonwealth? By paying to the heirs that which the widow ought to have had? An equitable conclusion truly; a conclusion that would enlarge the share of the heirs at the expense of the widow! This will not do. If we but remember that the former decree operated upon nothing but what was then in hand, and that the order then made was but a direction to pay what the executor then had for distribution on account of the shares of the heirs, and that the court neither did, nor intended to, pass upon the rights of the parties, we will at once see, that what the distributees then received were but payments upon the claims, which, by the decree, were made absolute,'but which, nevertheless, left the equitable status untouched, and to be adjusted on final account. For example: let us suppose the accumulations to finally net $100,000; of this the heirs at law are entitled to $50,000, and. the .widow is entitled to the balance. About this proposition there is no doubt; so reads the law. But the appellants say, no; the widow is entitled to but $25,000, and this because on a former distribution they were allowed to take $50,000. And the widow’s claim not being presented, she took nothing. Now, say thej’', we are to come in pro rata with the widow on the present fund, being held to no account for what we have received, and so are to raise our own shares of the estate to $75,000, and reduce her share to $25,000. A rule of this kind being not only inequitable and unjust, but contrary to the provisions of the Act of Assembly, cannot be sustained. The decree of the court-below is affirmed, and it is ordered that the appellants pay the costs.

Mr. Justice Gordon delivered the opinion of the court, After a careful examination of the charge of the learned judge who presided at the trial of this case in the court below, the points of the counsel, and the evidence, we fail to discover any error that requires correction. When the dam of 1860 was built the parties fixed the water level by a stake driven into the bed of the stream, to the top of which the defendant was, according to the history of the case as given by the counsel for the plaintiffs, in his paper book, authorized to raise the water. Nor in this has he admitted more than he was warranted in doing, for his client, the decedent, in his evidence before the board of arbitrators, admitted such to bo the fact. He then also said that at that time the defendant did not claim any right to flood his, Thatcher’s, ground, but thought that he had raised the water since the dam was built, two or three inches. He further testified, that in 1860 he agreed that Baker “ might raise it two inches, but not permanently.” If this means anything it means that the water might be raised two inches above the top of the stake, for as the stake was to be, as is conceded, a permanent mark, the temporary allowance of two inches must havo been in addition to this measure. Taking, then, this statement as a true history of the ease, and the court was undoubtedly right in calling the attention of tho jury to the fact that they need consider nothing back of the washout of 1877, for back of that there was nothing to consider. The parties had fixed the water line at the height of the stake and two inches over, and although the latter may have been merely permissive and not a permanent arrangement, yet as this permission was not revoked until 1877, if at all, Baker could not be treated as a trespasser in the continuance of the use of tho additional two inches of head. It was, therefore, entirely proper for the court to confine the attention of the jury to what occurred subsequently to the washout of that year. Nor was the court wrong in charging that in fixing the water level the parties did not mean that the water should never rise above that line, but that that was to be the height of the v,niter under ordinary circumstances. That this was a proper interpretation of the action of the contestants wo have no doubt. There certainly could have been nothing else settled by such au arrangement. The parties well knew that in time of a flood their mark would be covered by the water, but just how much of this effect would be caused by the freshet, and how much by the dam could not be anticipated, for much must depend upon the character of each and every rise. The effect of the dam would, of course, be much greater in a light than in a heavy freshet, and that effect must necessarily vary from the highest rise to the lowest. We must, therefore, take it that the parties intended to settle the line with reference to the ordinary condition of the creek, having no regard to those extraordinary conditions the effects of which they could not calculate. The third assignment is passed as containing nothing of material importance, and as the fourth sets out the point complained of without the answer, it cannot be considered. The affirmance of the defendant’s fifth and sixth points is unexceptionable, for if the water was caused to flow upon the plaintiff’s land by some other cause than the act of the defendant, he cannot be charged with the consequences. Neither can the seventh assignment be sustained; in view of the facts of this ease the court was right in saying that the defendant was not required to keep the whole dam at the water level if there were waste ways enough to carry off the water under all ordinary circumstances. He was certainly not bound to provide for extraordinary circumstances ; for unusual floods which would at all events sweep over the whole breast of the dam. This is exactly what was ruled in Bell v. McClintock, 9 Watts 119; and in McCoy v. Danley, 8 Har., 85. The court below was reversed principally for its definition of what ib called an ordinary stage of water, as that condition in which it remains longest, excluding the dry season. In this case, Mr. Chief Justice Black cites with approval Bell v. McClintock, in which it was held that one who erects a dam is responsible only for injuries caused by it in times of usual, ordinary and expected freshets, and not for those resulting from a flood, which, as the Chief Justice remarks, “ when it does come, is a visitation of Providence, and the destruction it brings with it must be borne by those on whom it happens to fall.” Besides this, however, the court might safely have said to the jury, that the waste wa\^s were sufficient, and more than sufficient to vent all the water that might be expected in this stream. Here was a little creek, about six feet in width, and to vent this little stream there were no less than three water ways, one of six feet in width, and the other two of ten feet each, the smallest of which if we are to believe the evidence, was sufficient to pass all the water of the stream in ordinary stages. Now how it can be that this mere brook, pouring into the head of a wide pond, should require at its outlet from that pond more than four times its own width for its discharge, is more than we can understand. Nor is it to be forgotten that in times of freshets the whole breast of the dam, some forty-eight or fifty feet, was available as an outlet for the water. On the whole we think the plaintiffs received nothing at the hands of the court of which they can justly complain. The ease was well and carefully tried, and one of the last directions which the court gave to the jury was, that if the defendant had raised the water even the fraction of an inch above the line of 1860, the plaintiffs were entitled to their verdict. This was certainly all they liad a right to expect, and as the jury have found that the defendant did not so raise the water, they have that body, not the court, to charge with the result. The judgment is affirmed.

Chief Justice Mercur delivered the opinion of the court, Art. Y., Sec. 14, of the Constitution of 1874 declares “ in all cases of summary conviction in this Commomvealth, or of judgment in suit for a penalty before a magistrate, or court not of record, either party may appeal to such court of record as may be prescribed by law, upon allowance of the appellate court or judge thereof, upon cause shown.” Thus it appears, in the cases mentioned, the right to grant an appeal is not in the inferior court which entered the judgment. It is vested in the court of record, or a judge thereof, to Avhich the appeal is to be taken, and cause therefor must be shown to the Superior Court or judge thereof, before the appeal can be allowed. Sect. 1 of the Act of 17th April, 1876, P. L., 29, designed to give effect to the section of the Constitution cited, provides that appeals in case of summary conviction shall be to the Court of Quarter Sessions of the county in which such magistrate shall reside; and in a suit for a penalty, to the Court of Common Pleas of the county in which said judgment shall be rendered, — in each case on allowance by the court of record or judge thereof upon such terms as to payment of costs and entering bail as the court or judge allowing the appeal shall direct. Thus the right to grant the appeal in cases like the present, is withheld from the magistrate and given only to the Superior Court. Here the Common Pleas was not asked to allow the appeal on cause shown. The application was to have it compel the inferior court to grant it. No such power is vested in the Common Pleas. The rule to show cause why a mandamus should not issue commanding the justice to grant an appeal was properly discharged. Judgment affirmed.

CAVANAUGH, Judge: This case involves a dispute between parties regarding the priority of their respective hens against real estate and the distribution of proceeds of a sheriff’s sale. Specifically, these consohdated appeals are from the court’s order of September 16, 1996, which granted the exceptions of appellee, Pamela K. Blesh, to a proposed order of distribution of the proceeds of a sheriff’s sale on the grounds that her hen against the foreclosed real property, imposed pursuant to an order of equitable distribution which was reduced to judgment but not timely revived, took priority over a subsequent mortgage hen recorded by appellant, Mid-State Bank and Trust Company. Because we find that Mid-State did not have either actual or constructive knowledge of Ms. Blesh’s interest in the property, due, in part, to her failure to timely revive her judgment hen, we reverse the court’s order and remand with instructions to disburse the proceeds of the sheriff’s sale in accordance with this opinion. In 1985, appellee was divorced from her husband, David E. Johnson. A decree of equitable distribution was entered on March 19, 1986, which required appellee to convey her interest in the marital real estate and flourmill business to Johnson and for Johnson to pay appellee the sum of $385,381.09, plus interest, in equal monthly installments over a period of fifteen years. As security for the award to appehee, the court imposed a hen against the real estate and the mill’s assets. The hen was reduced to judgment and entered in the Clinton County Judgment Index on January 27, 1987, on the advice of the Clinton County solicitor. Additionally, on the same date the lien was reduced to judgment, the deed by which appellee conveyed her interest in the marital real estate to her former husband was duly recorded with the Clinton County recorder of deeds at deed book 302, page 374. The deed passed title for nominal consideration (one dollar) and provided: The parties were divorced on May 24, 1985, vesting title as tenants in common. The Grantor herein is conveying her one-half interest only to the Grantee. This is a conveyance between persons, formerly husband and wife, pursuant to a Court Order of Equitable Distribution and therefore not subject to Realty Transfer Tax. In 1993, appellee’s former husband stopped making his required monthly installment payments to appellee. Appellee attempted, through court intervention, to enforce the terms of the equitable distribution order. However, appellee did not record the order of equitable distribution with the Clinton County recorder of deeds until September 14, 1994 and did not file a praecipe for writ of revival of the January 27,1987, judgment lien until September 27,1995. In the meantime, appellee’s former husband used the real property at issue as collateral for a loan in the amount of $1.5 million from Mid-State Bank, with surety for repayment provided by Globalnet International, Inc. Mid-State recorded its mortgage lien on the properties with the Clinton County recorder of deeds in August 1994. Appel-lee’s former husband defaulted on the loan and judgment by confession was entered against him, his wife, and Globalnet on August 18, 1995. Upon writs of execution issued that same date, a sheriffs sale of the properties was scheduled for December 6, 1995. On November 13, 1995, appellee filed a petition to intervene, seeking to have Mid-State joined in appellee’s prior divorce proceedings against her former husband, or, in the alternative, to be joined in Mid-State’s current proceedings against him. On November 30, 1995, appellee filed a motion to stay the sheriff's sale pending the court’s disposition of her petition to intervene. By order dated December 6, 1995, the court stayed the sale. On March 1, 1996, the court denied appel-lee’s petition to intervene and lifted the stay. Mid-State reinstated its writs of execution and a sheriff’s sale was held on June 26, 1996. Mid-State was the successful bidder, purchasing the properties for a combined total of $435,000.00. The sheriff filed a schedule of distribution proposing to distribute the entire proceeds of the sale to Mid-State, to which appellee filed exceptions. The eourt ordered the parties to submit briefs and ordered oral argument on the matter. However, by order dated September 9, 1996, the court vacated the order for oral argument, having determined that the matter could be decided on the briefs alone. By Opinion and Order dated September 16, the court granted appellee’s exceptions on the ground that appellee’s lien on the property took priority over Mid-State’s lien. The order directed that appellee be paid $304,-944.18 from the proceeds of the sale, that amount representing payment still due her under the order of equitable distribution which created the lien. Mid-State’s subsequent petition to invest the funds for distribution pending appeal was granted by order dated October 9, 1996. The denouement of the foregoing is the present appeal by Mid-State, which alleges: A. The trial court erred in holding that the unrevived judgment lien granted to Pamela K. Blesh pursuant to 23 Pa.C.S.A. § 3502(b) is entitled to priority over Mid-State Bank’s subsequently filed mortgage lien. B. The trial court erred in finding that Mid-State Bank had either actual or constructive notice of the lien created by a Decree of Equitable Distribution entered seven (7) years prior to the Bank’s recor-dation of its mortgage. We first note that the order appealed from is a final order and is, therefore, ap-pealable. The method and procedure by which competing lien creditors may litigate their claims to sale proceeds is established by Rule 3136, Pa.R.C.P. See Concord-Liberty Savings and Loan Assoc. v. NTC Properties, 454 Pa. 472, 312 A.2d 4 (1973); Sklaroff v. Weiner, 204 Pa.Super. 273, 203 A.2d 366 (1964); 4A Anderson Pa.Civil Practice, Enforcement of Judgments § 3136 (1962). Rule 3136(g) implicitly recognizes the right of appeal by any person aggrieved by the court’s final disposition of exceptions to the sheriff’s schedule of distribution. It authorizes the entry of an order that the sheriff invest the proceeds of sale “pending final disposition of the exceptions or an appeal therefrom.” See 4A Anderson Pa.Civil Practice, supra at § 31336.8. It is clear that an appeal will lie from a final order sustaining or dismissing exceptions to a sheriff’s schedule of distribution, [citations omitted]. Metropolitan Federal Sav. and Loan Ass’n of Eastern Pa., Inc. v. Bailey, 244 Pa.Super. 452, 458-59, 368 A.2d 808, 811 (1976). In the instant case, the court’s order of October 9, 1996, directed “that the Sheriff invest $304,-944.18 of the proceeds from the sale into a savings account ... pending final disposition of Plaintiff’s Appeal from the September 16, 1996 Order in this matter.” Therefore the order appealed from is final and the issues instantly raised are properly before us. The longstanding rule in this Commonwealth is that a judgment continues as a lien against real property for five years and then expires unless revived. Allied Material Handling v. Agostini, 414 Pa.Super. 175, 606 A.2d 923 (1992). Although a judgment may be revived after the five year period, its priority against intervening liens is lost. Id. It is undisputed in the case sub judice that appellee’s lien was entered as a judgment on January 27, 1987, but was not revived until September 27,1995, some seven and one half years later and that Mid-State recorded its mortgage lien on August 24,1994, during the interim period after appellee’s lien had expired but before it had been revived. Accordingly, because appellee did not timely file a writ of revival, her lien became subordinate as to Mid-State’s subsequently filed mortgage lien. Although the trial court recognized the rule requiring a judgment lien to be revived within five years, it determined that appel-lee’s lien was not a “judgment” subject to the rule, despite the fact that the lien had been recorded in the judgment index of Clinton County. The court noted that the “lien imposed ... pursuant to the Equitable Distribution Order was recorded as a ‘judgment’ January 27,1987.” The court, however, went on to explain: [T]he lien was a lawfully created obligation. The trial court is free to fashion a distribution award in whatever manner may be best suited to achieve a fair and just settlement according to the circumstances of each case, [footnote and citation omitted]. Pursuant to 23 Pa.C.S.A. § 3502(b) [footnote omitted] the court may impose a lien as security for the payment of this award. There is no provision under the Divorce Code which would require a court, in imposing such a lien, to record it in any manner save the filing of an Opinion and Order. Although Mid-State would have us believe so, the mere fact that the Prothonota-ry and Solicitor chose to file the lien as a “judgment” does not in some manner transform the lien into something less than what it is: a lawful obligation imposed by the Court. Mid-State asks this Court, in essence, to ignore a valid Court Order. This we refuse to do. “If the exceptant can produce evidence that he is equitably entitled to priority, the order of payment of the proceeds of a foreclosure sale will be changed.” [Farmers Trust Co. v. Bomberger, 362 Pa.Super. 92, 96, 523 A.2d 790, 792(1987)]. Ms. Blesh has shown she has a valid, current claim to the proceeds of the Sheriffs sale. Mid-State has had both actual and constructive notice of the claim. Given Ms. Blesh’s showing that she is equitably entitled to priority, the order of payment will be changed to reflect this. We conclude that this was error. Because the case was decided on the briefs, no evidence was produced. Thus, the court decided the case on the temporal order in which the relevant decrees, judgments, deeds and mortgages were recorded. Based on this sequence of recordation, given appellee’s failure to revive judgment, Mid-State’s Ken must take priority as a matter of law. Allied Material Handling v. Agostini, supra There is no basis for concluding that equitable distribution orders supercede established law relating to priority of interest created by and preserved by settled rules relating to priority of claims. The Ken was properly recorded in the Clinton County judgment index on the same date that appellee recorded the deed conveying her half interest in the marital real estate to her ex-husband. The Ken was subject to the five year revival rule, with which appeUee failed to comply. Moreover, we disagree with the court’s suggestion that entry of appeUee’s Ken in the judgment index might transform the Ken “into something less than it what it is.” Since the Ken is stiU vaKd but simply loses its priority under estabKshed rules governing Kens reduced to judgment, the entry of judgment on the Ken, had judgment been properly revived, would actuaUy have given teeth to the underlying order of equitable distribution and would have protected appeUee’s interest in the property. IUustrative thereof, is the Divorce Code’s express provision at 23 Pa. C.S.A. § 3502(e)(1): (e) Powers of the court.—If, at any time, a party has faded to comply with an order of equitable distribution, as provided for in this chapter or with the terms of an agreement as entered into between the parties, after hearing, the court may, m addition to any other remedy available under this part, in order to effect compKance with its order: (1) enter judgment])] Nonetheless, the trial court erroneously found that appeUee’s Ken, by virtue of the trial court’s broad power to fashion awards of equitable distribution, took priority. Although the Divorce Code grants broad equitable power to the trial courts and at 23 Pa.C.S.A. § 3502(b) provides that “[t]he court may impose a Ken or charge upon property of a party as security for the payment of alimony or any other award for the other party[,]” nowhere does that statute provide that a Ken so imposed is entitled to continuing priority without the need for further perfection or revival. To the extent the court determined that 23 Pa.C.S.A. § 3502(b) aUows a Ken imposed under an equitable distribution order, subsequently reduced to judgment, to be considered as a continuing encumbrance not subject to the rule requiring a judgment Ken to be timely revived in order to retain its relative priority, we reverse. The court also erred in determining that Mid-State had constructive notice of appeHee’s Ken. The court held: Mid-State must also be charged with constructive notice of the claim based upon the Equitable Distribution Order filed in 1986. The deed filed at Volume 302 page 374 conveys arguably valuable property from Ms. Blesh to Mr. Johnson for the sum of $1.00. The deed also recites that the parties were divorced May 24, 1985, and that the conveyance is pursuant to Court Order of Equitable Distribution. Constructive notice or knowledge has been defined as what a party “could have learned by inquiry of the person in possession and of others who, they had reason to beKeve, knew of facts which might affect title_” [Volunteer Fire Co. v. Hilltop Oil Co., 412 Pa.Super. 140, 150, 602 A.2d 1348, 1352 (1992) (citing Lund v. Heinrich, 410 Pa. 341, 348, 189 A.2d 581, 585 (1963))]. By the information recorded on the deed, Mid-State had knowledge of the equitable distribution. A review of the Equitable Distribution Order would have provided knowledge of the lien imposed by Judge Brown. If Mid-State then failed to follow up with inquiry of Mr. Johnson whether the obligation was satisfied, this failure cannot be charged to Ms. Blesh. The court’s standard of constructive notice places an unrealistic investigative burden on subsequent creditors who have searched the county recordations. Assuming arguendo, that the incidental mention of the order of equitable distribution in the deed required Mid-State to review the order, ap-pellee failed to record the order of equitable distribution with the Clinton County recorder of deeds until September 14, 1994, approximately one month after Mid-State recorded its mortgage lien. Additionally, although appellee’s lien was, appropriately recorded on the judgment index in 1987, that judgment was not timely revived. The definition of constructive notice in the present circumstances includes what a party “could have learned by inquiry of the person in possession and of others who, they had reason to believe, knew of facts which might affect title, and also by what appeared in the appropriate indexes in the office of the recorder of deeds.” Lund v. Heinrich, 410 Pa. at 346, 189 A.2d at 584 (1963) (emphasis added). At the time that Mid-State searched the title, neither the order of equitable distribution which imposed the lien, nor the judgment lien’s revival, were recorded. Therefore, Mid-State could not have gained constructive knowledge of appellee’s interest in the property by a prudent search of the appropriate indexes. The standard of record search necessarily implicated by the trial court’s disposition would place an undue and unrealistic burden on the record examiner to uncover an unrecorded order and scrutinize it for a lien, recorded or not, and to do so for a period in excess of accepted rules of judgment revival. We also reject the determination that Mid-State had actual notice of the appellee’s interest. The assertion of actual notice is dependent upon a presumption that there is a, duty to search beyond the revival period to discover unrevived judgments which is not the burden. We turn finally to appellee’s allegation that liens imposed pursuant to an order of equitable distribution, under 23 Pa.C.S.A. § 3502(b), represent a class of judicial liens not legislatively intended to be governed by the statutory provisions relating to the inception, duration, termination and revival of judgment liens. We disagree and preliminarily note: Judgment liens are a product of centuries of statutes which authorize a judgment creditor to seize and sell the land of debtors at a judicial sale to satisfy their debts out of the proceeds of the sale. The judgment represents a binding judicial determination of the rights and duties between the parties, and establishes their debtor-creditor relationship for all the world to notice when the judgment is recorded in a Prothonotary’s Office. When entered of record, the judgment also operates as a lien upon all real properly of the debtor in that county. Clairton Corp. v. Chicago Title Ins. Co., 438 Pa.Super. 488, 494, 652 A.2d 916, 919 (1995) (quoting In re Upset Sale, 505 Pa. 327, 334, 479 A.2d 940, 943 (1984)). “The existence of a judgment lien prevents a debtor from encumbering or conveying any property he might own in such a way as to divest the effect of the judgment, while also preventing later lienholders from satisfying their debt without first paying the earlier lien.” Id Further, judgment liens are governed by 42 Pa.C.S.A. § 4303(a) which provides, in pertinent part: Any judgment or other order of a court of common pleas for the payment of money shall be a lien upon real property on the conditions, to the extent and with the priority provided by statute or prescribed by the General Rule adopted pursuant to Section 1722(b) (relating to enforcement and effect of orders and process) when it is entered of record in the office of the clerk of the court of common pleas of the county where the real property is situated ... 42 Pa.C.S.A. § 4303(a) (emphasis added). A judgment lien becomes dormant after five years and a writ of revival must be filed within that prescribed period or the judgment lienholder may lose her hen priority. Judgment Lien Law of 1947, 12 P.S. §§ 878, 880. Despite the foregoing which confirms the power and priority a properly perfected and maintained judgment hen will convey to its holder, appellee argues that her hen against the property was not “merely” a judgment hen. Rather, despite the fact the instant order in equitable distribution can be viewed as “an order of a court of common pleas for the payment of money,” appellee argues that the order and award of equitable distribution in the instant matter “represented more than a mere money judgment, it represented the court ordered distribution of marital property pursuant to the broad equitable powers granted the trial court by the Pennsylvania Divorce Code.” Appellee suggests that because her hen was imposed under the divorce code and because “there is no limitation contained within 23 Pa.C.S.A. § 3502(b) regarding the duration of the hen,” that her hen should be granted, in effect, a super-priority which trumps ah subsequent hens or charges against the property until such time that her former husband pays the equitable distribution award in full, if ever. Appellee, in essence, asks us to recognize a new category of judicially created hens. This we wiU not do. We cannot agree, as will be further discussed below, with appehee’s interpretation that a hen imposed pursuant to the divorce code, has greater duration and priority than any other judicially or legally created hen merely because the divorce code statute authorizing a court to impose such a hen fails to specifically enumerate any limitations on the hen’s priority or duration. Additionally, in the instant matter, appehee’s hen imposed pursuant to the divorce code was, in fact, reduced to judgment. The hen was, therefore, subject to the rules regarding judgment hens, and any suggested distinction between appehee’s hen and a suggested new class of hens, on the facts of this case, is not pertinent. Nonetheless, appehee argues somewhat cryptically that if her hen or charge were nothing more than a judgment hen governed by 42 Pa.C.S.A. § 4303(a), the express provision of 23 Pa. C.S.A. § 3502(b) would be redundant because under such a construction the language of 23 Pa.C.S.A § 3502(b) would be superfluous since 42 Pa.G.S.A. § 4303(a) would control to convert any monetary award into a hen against real property upon entry of the equitable distribution award in the judgment index. Such an interpretation would be contrary to the rule of statutory construction that the legislature is presumed not to have intended its laws to contain language that is mere surplusage and without import. See, 1 Pa. C.S.A. § 1922. See, e.g., Commonwealth v. Mack Bros. Motor Car Co., 359 Pa. 636, 59 A.2d 923, 925 (1948) (“[t]he legislature cannot, however, be deemed to intend that language used in a statute shall be superfluous and without import.”). It is well-settled that statutes or parts of statutes which relate to the same persons or things or the same classes of persons or things must be construed together, insofar as possible, as one statute. Alfred M. Lutheran Distributors, Inc. v. AP. Weilersbacher, Inc., 437 Pa.Super. 391, 650 A.2d 83 (1994), appeal denied 640 Pa. 627, 668 A.2d 791 (1995). Additionally, the law of this Commonwealth provides that: Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is unreconcila-ble, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail. 1 Pa.C.S.A. § 1933. Moreover, this court must presume that the legislature did not intend an absurd or unreasonable result. Lindner v. Mollan, 544 Pa. 487, 677 A.2d 1194 (1996). Bearing in mind the foregoing we proceed to appellee’s argument. Appellee argues that if a lien created pursuant to an order of equitable distribution under 23 Pa.C.S.A, § 3502(b), by virtue of being an order of court for the payment of money, automatically becomes a judgment lien when it is entered of record pursuant to 42 Pa.C.S.A. § 4303(a), then the statute providing for the imposition of a lien pursuant to an order of equitable distribution is mere surplusage. Appellee’s argument, seemingly meritorious at first blush, must fail. First, not every order of equitable distribution constitutes an order for the payment of money. Nor does every order of equitable distribution seek to impose a lien against real property. A lien imposed under an order for equitable distribution may be assessed against personal property as well. Without the express dictate of 23 Pa.C.S.A. § 3502(b), there would be no statutory authority for a court, in its discretion, to impose a Hen against real or personal property to secure its award. Thus, the statute which permits the court to do so cannot be deemed mere surplusage compared to the judgment Hen statute, the exclusive subject of which is Hens against real property. Second, construing, the statutes together, we find that there is no irreconcilable conflict between a statute which allows a court to impose a Hen against real property indirectly by entering an order for the payment of money, i.e., 42 Pa.C.S.A. § 4303(a), and a statute which aUows a court to impose such a Hen directly, i.e., 23 Pa.C.S.A. § 3502(b). In either case, a Hen is imposed, and the court’s award secured. FinaUy, because a more absurd or unreasonable result could not He from the juxtaposition of the two statutes, we cannot presume that the legislature intended, by the enactment of 23 Pa.C.S.A. § 3502(b), for a Hen imposed against real property under that statute to have a continuing super-priority over aU other judiciaHy and legaHy created Hens. Indeed, in any subsequent Hen priority dispute, the proper order of priorities as estabHshed by law must prevail. There is no specific statutory language or other authority to support appeUee’s suggestion that her Hen is entitled to greater priority than that afforded Mid-State’s Hen merely by virtue of the fact that her Hen was imposed pursuant to an equitable distribution award. For the foregoing reasons, we reverse the order of the trial court and remand with instructions for the court to direct the sheriff to disburse funds in accordance with this opinion. Reversed and remanded. Jurisdiction relinquished. TAMILIA, J., files Dissenting Opinion. . The order provided, at paragraph A(3): "In accordance with the authority granted in 23 P.S. § 401(g) [now 23 Pa.C.S.A. § 3502(b)] the Court hereby imposes a lien or charge against the real estate being distributed to Plaintiff in [paragraph] (4) herein as well as a lien or charge against the assets of Clintondale Mills, Inc., said lien or charge to be subordinate to any existing liens or charges against said assets or real estate. Said lien or charge is imposed as security for the payment of the award in [paragraph] (2) herein and may be released or subordinated as the parties may hereafter agree or by subsequent order upon good cause shown." The real estate conveyed to appellee’s former husband consisted of three tracts of real properly in Clinton County upon which existed the following improvements: one large stone and frame three story grist mill; a dwelling house and bam used as a garage; and a separate two story frame dwelling house, one car garage and outbuilding. . Given the five year revival rule, logic dictates that a prudent search of the Clinton County judgment index on August 24, 1994 would require one to look back no further than August 24, 1989. In the instant case, because appellee’s lien was reduced to judgment in January, 1987, and because appellee did not revive that judgment until September, 1995, Mid-State’s search of the judgment index in August, 1994, did not disclose the existence of appellee's lien. . "Although the Judgment Lien Law has been officially repealed, it still governs insofar as it does not conflict with any other rules. In 1978, the General Assembly passed the Judiciary Re-pealer Act of April 28, 1978, which repealed the Judgment Lien law ‘to the extent that the law is inconsistent with duly promulgated general rules of procedure. 42 Pa.Cons.Stat.Ann. § 20002(a)[1257] (Purdon 1982). However, since no current rule of procedure regulates the duration and scope of judgment liens, sections 878 and 880 continue as part of the common law of Pennsylvania.’ ” Allied Material Handling v. Agostini, supra, at 179 n. 3, 606 A.2d at 925 n. 3 (quoting Hertzog v. Jung, 363 Pa.Super. 439, 444 n. 2, 526 A.2d 425, 427 n. 2 (1987)).

Opinion by Mr. Justice Dean, The defendants were manufacturers of different kinds of steel in Pittsburg and Allegheny county; plaintiffs are chemists and metallurgists. In 1889, plaintiffs undertook to assist in introducing into defendants’ factories a process whereby could be turned out a self hardening steel. Mr. Wheeler, president of the Sterling Steel Company, had been a practical steel worker for many years, and had tried to make a high carbon steel containing not less than three per cent of. carbon, but had failed in securing the desired results; on making his unsuccessful efforts known to Dr. Slocum, oné of plaintiffs, Slocum suggested a method by which the experiments theretofore made by Wheeler, if carried further by chemical combination suggested by him, would result in success, but he declined to give his personal attention to the matter for want of time, and named Mr. Todd as one capable of taking charge of the operation as an assistant. Todd assented, and spent at Mr. Wheeler’s .works some time in experiments, with a satisfactory result. The manufacture of this quality of steel was then begun by defendants, and was named “ Sterling Double Special Steel.” In their advertisements and labels, defendants described it by that name. The special quality of the steel made by this process, consisted in the high amount of carbon and low amount of chromium it carried, so that while it could be chilled or hardened at a low red heat, it would withstand in forging, without injury, a high red heat, and still be very tough in the hardened state. It was especially and to a great extent only valuable as tool steel. When the steel had proved a success on the market, Todd solicited payment of Wheeler for plaintiff’s services. After some negotiations, they entered into a written agreement, of which the following are the material stipulations, the Sterling Steel Company and Wheeler being parties of the first part, and Slocum and Todd parties of the second part: “ The said parties of the second part have assisted in the development of, and are informed as to a part of the secret used in the process of manufacturing the steel known and put upon the market as ‘ Sterling Double Special.’ “ The said parties of the first part wish to protect such part of said secret, and so protect their manufacture of said steel: “ Now therefore, in consideration of the premises .... the said parties of the first part hereby agree to pay unto the said James Todd, one of, and agent for, the parties of the second part, the sum of one cent (lc.) per pound for every pound of said steel made, sold and collected for, so long as said secret is not discovered and similar steel made and sold on the market by others; it being understood and agreed that if such steel is made and sold by any other party or parties, then the said parties of the first part shall cease paying to said parties of the second part the royalty or sum above named, and all contractual relations between the parties hereto arising out of this agreement shall cease. “It is further understood and agreed that the said parties of the first part shall make a full and complete return of said sales in writing to said Todd at the end of each quarter and pay to liim the amount then due. “ It is further understood and agreed that should this steel be made and sold under any other name, or in any other place, by or under authority of the said parties of the first part, that a full and accurate account shall be kept of said sales and a return made to said parties of second part, as provided for above.” _ There was also appended this additional stipulation signed by Todd and Slocum alone: “ The undersigned parties of the second part, whose signa tures are appended to this clause, agree and bind themselves not to impart to anyone whomsoever any part of their knowledge of the secret referred to in this agreement, during the time they receive the royalty herein named, and they further agree to the changing of the word same on the twentieth line of the first page of this agreement to similar.” The same year, in the fall of 1890, Dr. Slocum was permanently employed by defendants as chemist under a special contract, and so continued to be employed, pending this suit; while his name is joined as one of the plaintiffs, he disclaims any right of action. The defendants continued to recognize the contract by payment of royalties to Todd on “ Double Special Steel ” down to April, 1893, when they stopped payments, and in October of that year served formal notice upon him, denying liability, and an intention to make no further payments. On February 19, 1894, Todd, joining with him his cocontractor, Slocum, filed this bill, setting out the contract and averring: 1. That plaintiffs continued the use of the process described in the contract; manufacturing by the same process substantially the same kind of steel, but calling it “ C. Y. W.’s Choice (C. Y. Wheeler’s Choice) ” and “Wheeler Sterling Armor Piercing Projectiles.” 2. That they had ceased and refused to pay plaintiffs the royalties stipulated. 3. That there was then due and unpaid to plaintiffs for royalties a large sum. The prayer was for an accounting by defendants, and decree for payment of balance due. The answer admitted the contract as set out, but averred that it was entered into for the sole purpose of protecting defendants against a disclosure of the secret by plaintiffs to outside parties, and that it therein stipulated if a similar steel was made and sold by other parties, payment of royalties was to cease; that at the date of the notice, similar steel was made and sold by others. That the contract was intended to be terminable by either party at any time; that it ceased to be valuable to defendants, and notice of termination was accordingly given; that up to the date of the notice in October, 1893, there was a balance on “Double Special Steel” of only$47.15 due plaintiffs, which was by the answer, with interest and costs, tendered them. That plaintiffs’ process for manufacture of “ Double Special Steel ” was used exclusively in the manufacture of tools and had not been used in the manufacture of projectiles for camion or for other purposes constituting the business of defendants. The cause was heard before Judge Collieb under the new rules, sitting in equity. He found as facts: 1. That the secret of the process by which “ Double Special Steel ” was manufactured had not been discovered, and no similar steel had been made or sold in the market by others. 2. That the defendants had manufactured and sold steel produced by Todd’s method of process under the name of “ Sterling Double Special Steel,” and “ C. Y. W.’s Choice ” and “ C. Y. Wheeler’s Choice,” and had accounted to and paid to plaintiffs for a part only of the steel so manufactured. 3. That defendants had manufactured by plaintiffs’ method “Double Special Steel,” and sold it under other names, and have not accounted to plaintiffs nor paid therefor under the contract; and that they had made by the same process substantially, projectiles for cannon and armor piercing projectiles, for which they had not accounted. From these facts the learned judge, as a conclusion of law, found that defendant should account to plaintiffs for all steel known as “ Double Special Steel,” made since the month of March, 1890, and should pay the contract royalty for the same ; and further, that defendants should account to plaintiffs under the contract for all steel since the same month, named “ C. Y. W.’s Choice (C. Y. Wheeler’s Choice),” the “ Wheeler Sterling Armor Piercing Projectiles,” and pay to plaintiffs the contract royalty for the same. To these findings of fact and legal conclusions, defendants filed exceptions, lyhich after hearing by the court were dismissed, and on July 13,1895, by final decree, they were ordered to file account within twenty days. From this decree they bring this appeal, assigning eleven errors. The questions raised by them involve principally a construction of the contract, but also in part the determination of a fact. The plaintiffs rest their case on the contract, and aver they are the inventors of a new method of manufacturing aluminum chromium steel which method they made known to defendants, and is the method referred to in the contract. What was this method? Mr. Todd, after stating that Mr. Wheeler solicited him to make experiments in the production of a high carbon steel, and for that purpose gave to him entire control of their works, says :— “ I went to the works a number of times over a period of several months — was there a great deal. Shortly after undertaking the experiments, — we had been attempting to reduce the chromium with charcoal, as others had been doing, — I concluded that it would’t do; that the charcoal would leave some of the green oxide there, which was very bad for the steel. I commenced to look around for some better method. I struck upon the method of using aluminum containing a small amount of silicon, and in carrying out the experiments I reduced the metal as far as possible with charcoal in the pot; mixing the green oxide of chromium and the charcoal together and putting the pot into the furnace and exposing it to heat.” Further on in his testimony, he states, the sole object in the “Double Special Steel” process was to get the steel as high in carbon and as low in chromium as possible. The following are excerpts from Mr. Wheeler’s testimony: “ I related to Dr. Slocum the line of experiments I had pursued at Hussey, Howe & Company’s works when I was manager there, and told him where I had failed, and asked him if he could suggest some way of holding the combined carbon, and he said, yes, that the books showed that a small amount of chromium would allow the combined carbon to remain and still be steel; that it would show the peculiarity of very hard, close grain, and the susceptibility of being highly heated without apparently destroying the carbon. I asked him then if he would undertake to help me out on that point, and he said that he would. We talked, of course, in long detail, but that was the substance of the talk.” He then narrated his conversation with Dr. Slocum at a subsequent date thus: “ At that time, we concluded that there must be some other way of getting it in better, so we discussed all methods of introducing it, including by aluminum, and it was suggested, I think, by Dr. Slocum, that aluminum, which had greater affinity for free oxygen than any known metal, should be used to reduce not only the chromium to its metallic state, so steel would take it up, but to eliminate tbe free oxygen out of the steel, which would again allow us to carry a high carbon. Aluminum was in common use then, and is now, to eliminate the free oxygen.” He further says:— “ I had worked on it for four or five years before that, and simply held it in abeyance for the one point that I wanted. The other points had been taken up and talked over. Dr. Slocum furnished this point just in ordinary conversation, as he would anything of a technical nature that was of interest.” The following is testified to by Dr. Slocum: — ■ “The process of adding a small amount of chromium to steel was well known as a method of putting in a high per cent of carbon as combined carbon and still remain steel; and the method of getting this chromium by using it from the oxide instead of from the chrome iron stone, which, at that time, nearly all of it was made with. Chromium comes in nature as a chromium iron stone containing iron oxide and chromic oxide, combined together, and these heretofore had been melted in a blast furnace or crucible to produce an alloy of about fifty per cent chromium and fifty per cent iron carbon. Tins made more or less trouble on account of the high silicon it contains, the silicon being found in the ores, and I suggested to Mr. Wheeler the use of green oxide of chromium; a pure material to start with instead of the raw material as it comes in the market. . That was a known fact.” In the light of the testimony of these witnesses, parties to the contract, the preliminary statement.in the contract is unmistakable in meaning: — The said parties (Slocum and Todd), have assisted in the development of and are informed as to a part of the secret used in the process of manufacturing the steel known and put upon the market as ‘Sterling Double Special.’ By the written agreement, neither Todd nor Todd and Slocum together, after the method had proved a success, claimed to be the inventors or discoverers of the process which resulted in the ‘ Sterling Double Special; ’ by their own language there is a necessary implication of disclaimer as the sole discoverers of the process. In all this voluminous testimony there is nothing that seriously contradicts Wheeler’s statement, and Slocum’s testimony is pointedly corroborative. The plaintiffs were not the sole inventors or discoverers of the process as averred in the bill, but, as stated in the contract, they had assisted in the development of and were informed as to a part of the secret used in the process. Then comes the second statement of reasons for entering into the contract: The said parties (Wheeler and the Sterling Steel Company) wish to protect such part of said secret (that is, the part known to Slocum and Todd), and so protect their manufacture of said steel; now, in consideration of the premises, Wheeler and the Steel Company agree to pay Slocum and Todd for every pound of steel sold and collected one cent per pound, only, however, “ so long as said secret is not discovered, and similar steel made and sold on the market by others.” The contract obligation of Wheeler and the Steel Company was, further, that they were to pay the royalty: If “ this steel ” should be sold by defendants under other name or at any other place by their authority. And this obligation to pay was to cease:— 1. If the secret was discovered; then, of course, others would manufacture and put upon the market a steel identical in quality with this one. 2. If a similar steel, one resembling this, should be made and sold upon the market by others; that is, a steel carrying a high carbon and low chromium. By the contract, the parties had in mind two distinct contingencies, by which their rights and liabilities in the future were to be determined. Their efforts had resulted in the production of the steel “ known and put upon the market as Sterling Double Special Steel; ” for this, one cent per pound was to be paid; further, the plaintiffs were to be paid, “ should this steel. be made and sold under any other name.” The plaintiffs were not longer to be paid if a similar steel was made and sold on the market by others. They were to pay for the “ Double Special ” and for “ this steel,” alone; that is, a steel of the same nature or character, into the manufacture of which the new process entered; they were to cease paying, if a similar steel, that is, one resembling it in quality, were put upon the market by others, without regard to the process entering into its production. And that these parties so understood the significance of the two words is shown by their change of the agreement; they had first used the word “ same; ” but then, obviously, on reflection concluded it did not express their meaning, so by a written memorandum on the contract they substituted for it the word “ similar.” As it first stood, according to the language used, the one cent per pound was to be paid as long as identically the same steel was not placed on the market; by the change, defendants were only to pay so long as no other steel resembling the “ Double Special ” in quality was placed on the market, no matter by what process the other attained its quality. In other words, the manifest intent of the parties was, that defendants should pay only so long as the monopoly lasted, by reason of the secret process of which Slocum and Todd were in part informed; and it is the plain implication that Slocum and Todd did not longer intend to exact payment. In view of the agreement, it is not material that the reduction of oxide of chromium by the use of aluminum was known by some chemists and "metallurgists in Europe before Mr. Todd’s experiments; the parties contracted on the assumption the 'method was not known, or at least not in use in this country; and the introduction of a small amount of silicon into the process seems to have been first suggested by Mr. Todd. But that the larger part of the product of defendants, after May, 1893, so far as the proportions of carbon and chromium were concerned, was entirely different from that of “ Sterling Double Special Steel,” cannot for a moment be doubted, in view of the evidence. Mr. Todd testifies, the peculiarity of “Double Special Steel ” was “ that it would carry a much larger percentage of carbon than ever had been attained, if necessary; ” that, according to the comparative tests made by him and Wheeler of Wheeler’s best grade of steel and the “ Double Special,” the latter running very high in carbon, was not as brittle as the Wheeler steel; further that defendants advertised the “ Double Special ” as containing more carbon than any other steel known or invented. Mr. Wheeler testifies, that the “Double Special” was of three grades, A, B, and C, the first containing 3J per cent of carbon, the second 2J and the third 2 per cent; that by the “ Double Special ” process, he made projectiles from each of these grades, and on a test made by the government every one proved an absolute failure; they possessed no cohesiveness or toughness; they then went on experimenting with projectiles, and finally were successful by using ten or fifteen times as much chromium as in the “ Double Special,” and making them low in carbon instead of high. This steel was the complete antagonism of the “Double Special,” so far as concerned the proportions of chemical elements contained in it. The oxide of chromium, however, used in its manufacture, was reduced to a metallic state by the use of aluminum and carbon, as in the manufacture of “Double Special.” The method, in one particular, of reaching the manufactured product, was more than similar, it was the same, while the physical characteristics of the product were wholly dissimilar; “ Double Special ” being noted for its brittleness, and therefore was worthless as a projectile. Nor is there any evidence tending to contradict these facts. We have, then, as tending to show the projectile steel is “ Sterling Double Special,” the fact that the particular method of reducing the oxide of chromium to a metallic state in the “ Double Special,” was also used in the manufacture of the projectile; but then, we have on the other side the opposing facts, that, by the use of opposite proportions of carbon and chromium, an exactly opposite quality of steel resulted; the “ Double Special ” was worthless for projectiles, the projectile steel was worthless for tools. Clearly, this product was not what they meant by “ should this steel be made and sold under any other name.” It was not the “Double Special” which was advertised to possess the distinctive quality of being high in carbon and low in chromium, for it was low in the first and high in the last. To have sold it as such, after the characteristics of the “ Double Special ” were established, would have been a fraud upon the public. We are clearly of the opinion that a fair construction of this contract, in view of the undisputed evidence, relieves defendants from any liability to account to plaintiffs for any projectile steel as “ Sterling Double Special Steel.” This, not because other parties had put upon the market “ similar steel,” but because projectile steel was not, by the contract, “ this steel,” that is, “ Sterling Double Special.” The evidence as to other parties putting on the market similar steel projectiles, is immaterial; the projectiles made by defendants not being the “ Sterling Double Special Steel,” or “this steel” under another name, as specified in the contract, their non- liability to pay arises not from a right to cease paying, but because no liability to pay ever commenced. What we have said is just as applicable to the steel known as “ C. Y. W.’s Choice ” and “ C. Y. Wheeler’s Choice.” Under the contract and uncontroverted facts, neither brand was “ Sterling Double Special Steel.” They were wholly different in every essential quality necessary to identification with the “ Double Special,” and defendants owe no account for them to plaintiffs. Plaintiffs have a right to claim only for the use of and keeping secret the process in making “ Sterling Double Special Steel.” The error of the court below is, in holding to one mark alone as sufficient to identity the steel manufactured by defendants as “ Double Special Steel ” under the contract. As an illustration, take the testimony of Mr. Clapp, a chemist and expert called by plaintiffs; he testified that two steels, possessing by analysis entirely different proportions of chemical elements, one high in carbon and low in chromium, the other high in chromium and low in carbon; one very hard and brittle, the other having great cohesion on impact, yet, if in the manufacture of both, chromium oxide were reduced into metallic chromium, by the same process, the steels would be the same. Although there was much expert testimony contradictory of this view, the court below adopted it as the correct one from which to determine the liability of defendants to account. It may be, among chemists, technically correct to fix the sameness of a manufactured product by a single part of the process entering into its manufacture, without regard to the chemical analysis, its physical characteristics, or its fitness for the purpose intended, but the parties here did not contract on expert opinion of chemists as to what, though widely different, would scientifically be the same. Wheeler had striven for a very hard tool steel; the plaintiffs effectually aided him in producing it; then, it was agreed this production should be put upon the market as “ Sterling Double Special Steel,” and plaintiffs should be paid one cent per pound, not only for the double special, but for “ this steel ” under any other name. The “ Double Special ” was not sold under any other name. The learned judge lost sight of the manifest intention of the parties as evidenced by the undisputed facts and their language in the contract, when he made the issue to turn on a technical definition. Therefore, the decree which directs defendants to account for projectile steel, “ C. Y. W.’s Choice,” and “ C. Y. Wheeler’s Choice,” is reversed and set aside. In so far as said decree directs an accounting under the contract for “ Sterling Double Special Steel ” the decree is affirmed, and an accounting directed under the contract in accordance with our interpretation of it.

Chief Justice Mercur delivered the opinion of the court, These appeals were argued together. They are from the same decree. They present the same question. The contention arises under the Act of 7th August, 1888. It provides for the formation of the judicial districts of the Commonwealth ; how each shall be numbered, composed and designated, and the number of judges each shall have. Section 1, inter alia, declares, “ the seventeenth district ” (shall be composed) “of the county of Butler, to which the county of Lawrence is hereby attached, and shall have two judges learned in the law, and the additional law judge shall reside at New Castle, in Lawrence County.” Section 8 declares “in all cases where a county is or shall be attached to an adjoining district the qualified voters of such county shall be entitled to vote for the president judge and an additional law judge when provided for.” At the general election held in November, 1884, for the election of two judges learned in the law, for the 17th judicial district, the appellants, and John McMichael and Aaron L. Hazen, and another were candidates. The qualified electors of each of said counties, met at their respective legal places for holding elections, and voted for two judges, and the votes cast in each county were counted and ascertained at the county seat thereof. A return judge ivas appointed according to the requirement of the statute, in each county, to meet a similar officer appointed by the other county. Those two met at the county seat of Butler county, at the time designated by statute and cast up the votes of both counties, and on a correct computation thereof, found that John McMichael and Aaron L. Hazen had received the highest number of votes, and issued certificates to them accordingly. The appellants attack the constitutional validity of the Act of 1888, in. permitting the qualified voters of the county of Lawrence to vote for law judges, and claim that the votes cast in that county, were improperly counted. If this view be collect, then appellants were duly elected and entitled to receive the certificates accordingly. The tribunal authorized by law to decide such a contest, decided adversely to the claim of the appellants, and the commissions have been issued to the other candidates named. The appellants rest their case on Art. V. sect. 5 of the Constitution which declares “whenever a county shall contain forty thousand inhabitants, it shall constitute a separate judicial district, and shall elect one judge learned in the law ; and the General Assembly shall provide for additional judges as the business of the said districts may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed into convenient single districts or if necessary may be attached to contiguous districts as the General Assembly may provide.” As the United States decennial census of 1880, showed the county of Butler contained more than fifty thousand inhabitants, the appellants claim that it alone thereby became entitled to become a separate judicial district, and that the electors thereof only, could participate in the election of judges learned in the law, assigned to said district. In other words although the county of Lawrence was legally united, annexed, or attached, in the formation of the district, yet the qualified electors thereof, are, by the Constitution, denied all right to vote for the judges, who for a full term of ten years, are to preside in the courts of their county. A proposition so startling as this, and one affirming such an unequal and unjust discrimination against all the legal voters of a county, ought not to be assented to, unless its correctness be clearly established. The section of the Constitution relied on was before us for construction in the case of Commonwealth ex rel. Chase v. Harding et. al., 6 Norris, 343. It was carefully considered, and construction given thereto. It was held that this section did not of itself constitute a separate district when a county attains the number of inhabitants specified; but it indicates the basis on which, at the proper time and in the proper manner, judicial districts may be created by the legislature. The unreasonable and mischievous effects of any other construction are well stated in the able opinion of Mr. Chief Justice Agnew. The correctness of this construction has since been affirmed and approved by this court, in a distinct manner in Commonwealth ex rel. Burns v. Handley et al., 10 Out. 245 ; and in sur petition of Cahill, Slevin and McVay, 16 W. N. C. 485. That the section of the Constitution cited, was not intended to execute itself in the formation of judicial districts, but requires legislative action is clearly shown by sect., 14 of the schedule. It declares “tbe General Assembly shall at the next suceeding session after each decennial census and not oftener, designate the several judicial districts as required by the Constitution.” Thus not only is the whole power of designating judicial districts given to the legislature, but it can be exercised only after each decennial census. Although a county, forming part of another district, may in fact, for many years, have the population stated as sufficient to constitute a separate judicial district, yet it must bide its time and await the action of the General Assembly. In seeking for the true meaning and proper construction of Sect. 5, Art. V., we must consider other portions of the Constitution and so interpret the different parts as to produce harmony between them, and give a just and reasonable effect to the whole. Sect. 15 of the same Article declares “all judges required to be learned in the law, except the judges of the Supreme Court, shall bo elected by the qualified electors of the respective districts over which they are to preside, and shall hold their offices for the period of ten years, if they shall so long behave themselves well.” Who are qualified electors? Sect. 1, Art. VIII., answers this question. “Every male citizen twenty-one years of age, possessing the following qualifications, shall be entitled to vote at all elections.” The qualifications following, refer only to citizenship, duration of residence and the payment óf taxes. If then, persons possessing these qualifications, are entitled to vote at “ all elections ” and judges learned in the law shall be elected by the qualified electors of the respective districts over which they are to preside, it must be conceded that these sections intend to give and do give, to the electors of the county of Lawrence, the right to vote for their judges, unless that county is not within the 17th judicial district over which said judges are to preside. This conclusion is supported by Colvin" v. Beaver, 13 Norris, 388. Two things are indisputable. One is that the law judges of the 17th district do preside over and in the county of Lawrence. The other is that the county is not in any other judicial district. No judges, other than those of the 17th district are authorized to preside there. All writs issued from the several courts of record of the county of Lawrence must be tested in the name of the president juclge of the district. The commissions issue to these judges as judges of the 17th judicial district. If the county of Lawrence is not within the district of these judges, then the president judge thereof has no power to call upon the president or law judge of any other district to hold a term of court therein. The electors of the county of Lawrence are either within the 17th district with the right to vote in the election of judges learned in the law, to preside there, or else they are outside of that district, and in no other, and legally have no such judge to preside in the courts of their county. Such a result would not only be repugant to the whole scope and spirit of the Constitution relating to courts, but would destroy that uniformity in the organization and operation of courts of equal grade, which it expressly declares shall be preserved. Thus section 26, of Art. V., inter alia declares “all laws relating to courts shall be general, and of uniform operation, and the organization, jurisdiction and powers of all courts of the same class or grade, so far as regulated by law, and the force and effect of the process and judgments of such courts shall be uniform.” The construction claimed by the appellants for section 5, denies to one county that uniform organization and operation which the constitution declares shall tee enjoyed by all the counties, and which no law shall impair. The authority given by law to the presiding judge constitutes an essential part of the organization of the court, and fixes a limit to its operations. This however is only one view of the case. It has another side, that side is the people. Uniformity in the organization and operations of a court is not for the exclusive convenience of the judge who administers the laws, but its main purpose is for the benefit of the people of every county, whose rights might be injuriously affected by an absence of this uniformity. We cannot assent to the view of the appellants. It is in clear conflict with too many parts of the Constitution. It strikes down those equal rights and valuable privileges which are so highly prized by our people, and which the Constitution was intended to secure, and we think does secure. We are not unmindful of the case of Commonwealth ex rel. Attorney General v. Dumbald et ah, 1 Out., 293. It was twice argued, and each time decided differently. The last time by a bare majority of the judges of this court. It stands however as authority that under the legislation then existing, the county of Fayette was not entitled to elect associate judges. The question as to the right of the qualified electors of the county attached, to vote,was not before us for decision, and was not decided. We are therefore unanimously of the opinion that the qualified electors of the- county of Lawrence were entitled to vote forjudges learned in the law, at the election held on the 4th day of November, 1884, and that John McMichael and Aaron L. IJazen received the greatest number of legal votes and are entitled to the office to which each was elected. It is further ordered that this decision be certified to the Secretary of the Commonwealth. Decree affirmed and the appeal in each case is dismissed at the cost of the respective appellant therein.

Opinion by Mr. Justice Williams, This appeal is from a judgment entered for want of a sufficient affidavit of defense, and the only question raised is that of the sufficiency of the allegation of payment which is the only defense set up in the affidavit. The plaintiffs were on the 19th day of March, 1891, the owners of a draft drawn by the Anglo-Californian Bank on the Fourth Street National Bank of Philadelphia. On that day they indorsed the draft specially to the Keystone National Bank for collection, stating in the indorsement that its purpose was the collection of the amount for their oto credit. The effect of this indorsement was to make the Keystone National Bank the agent of the indorsers for the single purpose named. The title to the draft passed only so far as was necessary for the purposes of the agency created by the indorsement, and the ownership of the proceeds remained all the while in the indorsers. The Keystone National Bank and the Fourth Street National Bank were both members of the clearing house association. On the morning of the 20th of March, this draft was sent mth the other checks and drafts held by the Keystone Bank, against the other national banks of the city, to the clearing house for collection at the morning clearing. The process of passing the clearing house was begun in the usual manner. The balances due from and to the several banks represented were ascertained and the exchange of packages entered upon. It was then ascertained that while the Keystone Bank was credited with checks and drafts presented by it amounting to $70,005.46, it was debited with checks and drafts presented against it amounting to $117,085.21. The balance due from it to be paid in cash was therefore $47,029.75 and the bank could not clear until this sum was actually paid at the clearing house. At half past ten o’clock that morning the bank was closed by the action of the United States bank examiner. The balance was not paid or any part of it. The bank could not clear for this reason, and what had been done provisionally for that purpose became ineffectual and ceased to have any legal significance. The draft on the Fourth Street National Bank had not been collected and it remained the property of Crane and Parris as fully as before. The clearing house had no right to demand or receive the amount from the drawee unless it did so in completing the day’s clearing for the Keystone Bank, and if it had demanded and received it for that purpose it would have held the money for the owners of the draft and been accountable to them for it. But it did not assist the Keystone Bank to clear on that day. It demanded and received the amount of this draft from the defendant and appropriated it to the payment of the indebtedness of the Keystone Bank to the clearing house committee. This is the payment set up in the affidavit. It is a payment to one who was a stranger to the draft and who had no interest in the proceeds, and no authority to act as agent for the owners. It should be noted that no question is raised by the defendant as to its liability to the holder. It rests upon the legal value of its payment of the money to the clearing house. If this was a good payment then a defense is set out in the affidavit. If it was not a good payment then the judgment appealed from was properly entered. No reason has been suggested for supposing that the clearing house had acquired, or could acquire, a title to the draft of Crane and Parris by the accident of having it in then possession. If the Keystone Bank had attempted to make title to the clearing house by indorsing the draft over to it, this would have been wholly ineffectual; for notice of the limited interest of the bank was written into the indorsement by the plaintiffs, and any party taking as the indorsee of the bank would be bound to take notice of its want of title and its inability to confer one. The Fourth Street Bank had notice therefore, by the indorsements on the draft, that the clearing house had no title, and that payment made to it would be made at the' risk of the bank. If the clearing house had paid over the proceeds to the owners this would have discharged the drawee but the risk of this was the risk assumed when the bank paid the draft to one who was a stranger to it. The learned judge of the court below was right in his view of the transaction and of the worthlessness of the payment set up as a defense against the real owners. In one respect only, and that an immaterial one so far as this case is concerned, do we find ourselves constrained to differ from the learned judge. We do not regard the clearing house as a mutual bank organized and operated by the associated banks. It is as we have said in Philler v. Patterson, 168 Pa. 468, an ingenious device to simplify and facilitate the work of the banks in reaching an adjustment and payment of the daily balances due to and from each other, at one time and place, on each day. In practical operation it is a place where the representatives of all the National Banks in this city meet, and under the supervision of a competent committee or officer selected by the associated banks, settle their accounts with each other, and make and receive payment of balances, and so “clear” the transactions of the day for which the settlement is made. These payments may be made in cash or by such form of acknowledgment or certificate as the associated banks may agree to use in their dealings with each other as the equivalent or representative of cash. The use among themselves of a certificate or other representative of money to save the inconvenience and labor of counting and recounting several millions of dollars daily is not the issuing of currency. It is not a violation of the law. It does not convert the clearing house into a bank of any sort. The judgment is affirmed. Mitchell, J., dissents.

Opinion by Mr. Justice Fell, The first contention of the appellant is that the decree in this case should not have been entered, ás the partnership affairs had not been settled and the plaintiff’s loss ascertained. The partnership was formed for the single purpose of constructing waterworks in Mayfield, Ky. The only contribution of capital was that made by the plaintiff. The land on which the works were to have been constructed had been transferred and the, ■enterprise abandoned, and the business was a total failure. The receiver was unable to obtain a bid for the few articles of personal property found on the premises, and nothing of value •came into his possession. The report of the learned master that the remaining property of the partnership was “ practically worthless,” as explained by the testimony and other parts of his report, is in effect a finding that they were worthless. There were no assets, no accounts to settle, and nothing remained but to adjust the equities between the parties. The partnership agreement provides that “the profits and losses are to be shared equally by the partners, each being entitled to one fourth of the profits and to be liable for one fourth of the losses; provided however that the said Magilton shall in no event be put to a loss more than $1,250, and the balance shall be made up, and paid to him in case of greater loss, by the other partners.” The master held that the liability of the defendants to pay the loss of the plaintiff in excess of $1,250 was a joint and several liability. It is conceded that the finding of the master on this point would be correct if the parties •stood in the relation of strangers, but it is contended that in view of their partnership relation the proviso read in connection with the contract imposes a liability on each of the remaining partners to bear only one third of the plaintiff’s loss in excess of $1,250. The plaintiff furnished the whole cash capital, and the twofold purpose of the proviso was to fix a limit beyond which his loss should not extend, and to secure the repayment by the other partners of the balance of his contribution to the common property. This was done by providing that the balance should be paid to him by them. This is the plain meaning of the words used. In the preceding clause there is a distinct limitation of individual liability for tbe general losses of tbe business, and tbe omission of tbis limitation from tbe proviso is significant, and indicates an intention that each should be bable for tbe whole in tbe event of tbe failure of tbe others to pay their shares. As tbe partnership bad ended, and tbe defendants had refused after demand to adjust tbe accounts in accordance with tbe agreement, we see no error in tbe allowance of interest. Tbe decree is affirmed at tbe cost of tbe appellant.

TAMILIA, Judge: This action involves an appeal and cross-appeal from the Decree of June 6, 1997, whereby the trial court terminated the parties’ marriage, adopted the master’s report and recommendation of equitable distribution and denied the parties’ exceptions. Appellant, John E. Moore (hereinafter husband), claims the trial court erred in finding that the proceeds of a workers’ compensation commutation award were marital property subject to equitable distribution. Ap-pellee/cross-appellant, Leona A Moore (hereinafter wife), argues the workers’ compensation proceeds are marital property and maintains the trial court erred by not awarding her additional assets due to husband’s dissipation of the proceeds. Wife also contends the trial court erred in refusing to consider wife’s loss of equity due to the transfer of the marital residence pursuant to a deed in lieu of foreclosure. Husband and wife were married on April 16,1966. Husband worked for Roadway Express, Inc., from 1977 until 1989. On June 23,1989, he suffered a work-related injury to his lower back and subsequently received workers’ compensation benefits. On May 13, 1991, Roadway Express filed a Petition to Terminate Compensation Benefits, alleging that husband had refused reasonable medical treatment. Husband and wife separated on August 17, 1991. By agreement dated December 2,1991, husband accepted the modification of his compensation benefits. Wife filed a complaint in divorce on December 16, 1991 and, on December 17, 1991, husband received a one-time lump sum payment, after legal fees, of eighty-nine thousand, six hundred and two dollars and fifty cents ($89,-602.50). The subsequent procedural history of this ease is both lengthy and complex, however, it is also largely irrelevant to the instant appeals. The pertinent facts can be summarized as follows. On October 27, 1995, the master filed his third report and recommendation. Evidentiary hearings had been held on January 16, 1993 and March 21, 1995. Following the master’s third report, both parties filed exceptions. By Decree dated June 6, 1997, the trial court terminated the parties’ marriage, adopted the master’s third report and recommendation and denied the parties’ exceptions. The parties subsequent^ ly appealed the trial court’s equitable distribution of the marital estate. On appeal, husband contends that the proceeds of a workers’ compensation commutation award are not marital property. With regard to disability benefits, this Court has stated the following: We decline to hold that true disability payments are marital property subject to equitable distribution. Such benefits are intended to compensate the employee spouse for lost earning capacity. They are paid in lieu of the earnings which would have been paid to the employee if he or she had been able to work. They replace the future salary or wages which the employee, because of physical or mental disability, will not be able to earn. They are comparable to Workmen’s Compensation disability payments. Post-divorce payments intended to compensate for an inability to work are not marital property. Ciliberti v. Ciliberti, 374 Pa.Super. 228, 233-234, 542 A.2d 580, 582 (1988) (emphasis added). Disability payments simply do not constitute marital property, Malseed v. Malseed, 388 Pa.Super. 214, 219-221, 565 A.2d 453, 456 (1989), and are only subject to equitable distribution when they cannot be separated from other proceeds that form part of the marital estate, Kozich v. Kozich, 397 Pa.Super. 463, 465-468, 580 A.2d 390, 392-393 (1990), or when they can be fairly characterized as retirement pension benefits or some other form of marital property. Hayward v. Hayward, 428 Pa.Super. 332, 333-337, 630 A.2d 1275, 1276-1277 (1993). In this case, the workers’ compensation proceeds are clearly a disability benefit. The master’s original report unequivocally states that husband had suffered a permanent partial disability, which was expected to reduce his future earnings at the rate of $216.67 per week. Consequently, husband received a lump sum award in the amount of $89,602.50. The fact that husband received the disability benefit in one lump sum is irrelevant. The character of a benefit should not be determined by the manner in which it is paid. The benefits in question were paid in lieu of future earnings and, consequently, do not constitute marital property. This is clearly distinguishable from compensation payments in lieu of lost wages during the existence of the marriage. Such payments are in the category of tort settlements or payments in which present lost earnings are inseparable from future lost earnings. Wife relies on Kozich, supra, and Platek v. Platek, 309 Pa.Super. 16, 454 A.2d 1059 (1982), in arguing that the workers’ compensation proceeds in question are not a true or pure disability benefit because they were paid in “settlement” of an ongoing, contested workers’ compensation matter. Kozich, and Platek, however, only stand for the proposition that marital property includes the proceeds received in settlement of a personal injury claim. See also 23 Pa.C.S. § 3501(a)(8). Disability benefits are sometimes subjected to equitable distribution— but only when they cannot be separated from the remainder of the tort settlement. Ko-zich, supra. This Court realized the above interpretation could be construed as conflicting with the “award or settlement” language of subsection 3501(a)(8) in that if workers’ compensation and disability benefits were viewed as another form of award or settlement, then subsection 3501(a)(8) could be interpreted to include as marital property any workers’ compensation or disability benefit acquired during the marriage. In the absence of a more explicit statutory mandate, however, this Court “decline[s] to hold that true disability payments are marital property subject to equitable distribution.” Ciliberti, supra at 233, 542 A.2d at 582. The courts of this Commonwealth have stated repeatedly that pure disability benefits are not marital property. Since the proceeds of the workers’ compensation award in question are clearly disability benefits related to compensation for future lost earnings beyond the final date of separation, the trial court erred in subjecting them to equitable distribution. Having determined the worker’s compensation award was nonmarital property, it is necessary to remand this case for the trial court’s reevaluation and reconsideration of the economic issues including but not necessarily limited to alimony, alimony pendente lite and counsel fees. Wife’s third issue regarding dissipation of marital assets is moot in light of our determination the award was not marital property. Her final issue as to transfer of the marital residence also should be considered on remand. Decree vacated; case remanded for proceedings in accordance with this Opinion. Jurisdiction relinquished. Concurring Opinion by BECK, J. . While the trial court entered an “amended order” terminating the parties’ marriage, the proper designation is “Decree of Divorce.” See 23 Pa.C.S. § 3323, Decree of court, (a) General rule. . § 3501. Definitions General rule.—As used in this chapter, "marital property” means all property acquired by either party during the marriage, including the increase in value, prior to the date of final separation, of any nonmarital property acquired pursuant to paragraphs (1) and (3), except: (8) Any payment received as a result of an award or settlement for any cause of action or claim which accrued prior to the marriage or after the date of final separation regardless of when the payment was received.

Opinion by Mr. Justice Green, We think this case was correctly ruled by the learned court below. While it is entirely true that, in circumstances which have been well defined in several of the decisions of this court, equity will, upon proper occasion, intervene and set aside voluntarily executed deeds and other instruments, yet the power to do so is of an exceedingly delicate character, not to be lightly exercised, and only to be invoked when the manifest justice of the case requires it. An examination of the testimony shows that the leading facts and circumstances which induce judicial action in this class of cases are not present. There was no mental unsoundness or feebleness on the part of the grantor, there was no exertion of undue influence to procure the execution of the deed, there was no advantage taken of a confidential relation as was so eminently the case in Yardley v. Cuthbertson and Miskey’s Appeal, there was no want of knowledge of the true and full character of the act; and there was the concurrent advice and consent of the grantor’s husband to the making of the deed, and the deed was prepared at the office of an honorable and distinguished member of the bar to whom the grantors were in the habit of applying for legal ad vice when they desired any. The testimony is not at all conflicting. Some witnesses state more circumstances than others, as is always the case, but they are not contradicted and there is really no conflict of testimony in the case. The plaintiff’s own personal testimony is practically fatal to her case, as it discloses the absence of the kind of facts, without which equity will not interfere in this kind of cases. She testified that she had signed many deeds with her husband for' the purpose of conveying different properties of his to other persons, and she therefore knew the effect of such transactions. Upon her examination on her own behalf she testified as follows : “ My husband died September 29,1889. The deed from my husband and me to my three daughters, I remember; it was made about a month before his death. He was not well and wor-1 ried. He was worried about his business affairs. I don’t know whether that worriment had relation to his debts. He did not express that worriment to me but I knew .he was worried. Annie, my daughter, first spoke to me about making the deed. It was some time before it was made. She said that she was advised that if I would sign my property over they would be safe—the girls. She said I was to assign it to the three daughters. She said they-would be safe on account of the business affairs—the money matters. Things were in an unsettled condition—I don’t think she said that, but that is what she meant. There wasn’t much said about making this deed to me. When I speak about things being unsettled I mean the family affairs—Mr. Simon’s estate—I know there were debts pressing. There was nothing said by Annie as to how those debts would affect me. She did not say why she wanted the property conveyed to her and her sisters—only she would like to have it, as in that case they would be more safe. The property was my own. It came to me from my father’s estate. I think Annie spoke to me more than once about this deed. In speaking about making the conveyance, Annie wanted me to sign it to them that they would be safe, that they would have a home. I understood her to mean that they would have nothing to live on if it was not made over to them, on account of papa’s business affairs.' That was it. That was the reason I did it. I knew at the time .that it was not subject to my husband’s debts, but I did it in a fright and I didn’t know what I was doing, I guess, or I would not have done it. Mr. Keiper came and had the deed made and brought it to me for my signature. ' Annie told me that Mr. Keiper had advised her to have me to make the deed to the girls. She didn’t tell me anything else that Mr. Keiper had advised her to have me do. Mr. Keiper brought the deed to me. He brought an alderman with him to take my acknowledgment. I don’t think anybody but the alderman and Mr. Keiper were present when the deed was acknowledged by me and my husband. The deed was read to me by Mr. Keiper. He said nothing to me at that time about making it—nothing at all.” It will be at once seen from the foregoing testimony of the plaintiff that she understood perfectly well what she was doing, she knew the effect of a deed, she knew that she was-conveying the property to her three daughters, that she was not acting under the effect of any undue influence, that she-was not even importuned to make the deed, but merely asked by one of her daughters upon one or two occasions to do so, and a very good reason stated at the time why it had better be-done. She knew that her property was not liable for her husband’s debts, and she does not say that her daughter or any one else told her that it was. The master expressly finds that the-proofs fail to establish that allegation in the bill. But although a- married woman’s property is not liable for her husband’s-debts, it is not at all uncommon for married women to consent that their property may be mortgaged, or sold, in order to relieve their husbands from the pressure of embarrassing debts. The daughters of this plaintiff may well have felt alarmed at the situation of their father’s affairs, and were quite justified in asking their mother to at least secure them a home, by a: conveyance which would put it oiit of the power of their parents to sell or incumber their homestead even if they should desire to do so. We cannot say that a request of the daughters-in such circumstances was unreasonable or unwise. As they executed and delivered a deed to their mother for a life estate in the property simultaneously with the deed to themselves, they thus secured a home to their aged mother as well as to-themselves. The plaintiff admitted, and so testified, that the deed was read to her by Mr. Keiper before she signed, and it appears also by her testimonjr that both she and her husband executed and acknowledged the deed, showing that her husband not only consented to it, but deprived himself of his curtesy in the property. It cannot be denied, therefore, that the conveyance was made consciously, advisedly, without undue influence or importunity, and with a full knowledge of its effect, if the case were to be adjudged by the plaintiff’s testimony alone. But the other testimony, both for the.plaintiff and defendants, confirms and completes the record against the plaintiff’s claim. Her son, Luther M. Simon, testifying on her behalf, said: “ I first knew of this deed-at noon or in the evening of the day it was signed. My impression is it was at the dinner table. I learned it from my mother herself.....She said to me after the rest had left the table, ‘ Oh! Lute, I gave the. girls a deéd to this property. ... I only done it for protection.’ I think that was the word she used.” As this occurred on the same day the deed was- executed it cannot be said that she did not know, and was not fully conscious of what she had done. Samuel Keiper, the husband of one of the daughters, testified for the defendants, as follows: “ On August 26, 1889,1 called at the house of Mr. John B. Simon. Saw Mr. Simon, Mrs. Simon, and Annie and Clara. They were in the parlor. This was probably about 9 o’clock in the morning. Father and mother said they had concluded to give the girls the home and directed Annie to go to his office and ask his clerk for the old deeds. In a short time Annie returned saying the deed could not be found in the office. Then search was made by mother and the deed was found in the bureau drawer upstairs among other papers and brought into the parlor. . . . This deed was shown to me by mother or father I suppose. I was instructed to take it up to Mr. Jordan’s office and have a deed made out to the girls— Annie, Clara, and Emma. Mr. Jordan was an attorney who did business for father and mother—I mean Mr. and Mrs. Simon:” After saying that Col. Jordan was notin and' that' Mr. Wolf, who was in Mr. Jordan’s office and attended to his business, wrote the deed, he said further: “ After the deed was written I took it to Mr. Simon’s house and handed it to Mr. and Mrs. Simon. They were in the parlor at that time. ... I saw Annie read the deed to Mrs. Simon. I don’t know who were present when the deed was read, but I remember Annie reading the deed to Mrs. Simon in the corner of the window. I think that was just before dinner, about 12 o’clock. . . . After dinner .... about two o’clock, Mr. and Mrs. Simon and I were sitting in the parlor, and Annie and Clara, when Mrs. Simon remarked. She said ‘ I thought I would liked to have told Luther before I signed the deed.’ She said Luther is uncertain as to his coming as it is now 2 o’clock, and he may not come before to-morrow, and Mr. Simon said, ‘ Yes, Moore, you go' for the man,’ meaning an alderman — alderman Jackson. I knew he meant alderman Jackson because I had gone for him before to take acknowledgments. I immediately went to aider-man Jackson’s office and asked him to come over to the house to take an acknowledgment. He came and he asked Mrs. Simon if he should read the deed to her and she said ‘ No.’ She knew what it was. I saw her sign the deed and also saw Mr. Simon sign it. . . . After the. deed was signed, Mrs. Simon handed it to Annie. I said nothing whatever to induce them to sign this deed.” The witness also testified that he never made any statements to Mrs. Simon or Mr. Simon nor to Annie that Mrs. Simon’s property could be taken for her husband’s debts, and that the family all understood that it could not be done. The daughter, Annie E. Simon, testified thus : “ I remember the circumstances relating to the making of this deed. I wanted mother and papa to give me something in their lifetime which no one could dispute or doubt. I asked my mother in the presence of my father and sister Clara if she intended that, the house we now occupy, for the girls. She said, ‘ Yes.’ I said, ‘ Then, mother, give it in your lifetime and there will be no trouble.’ This conversation occurred on Saturday afternoon before the making of the deed. She turned to my father and said: ‘ Are you willing the girls should have this,’ and he said ‘ Yes, mother, I am.’ My father turned and said to me, ‘ You go for Mr. Jordan and have the deed made.’ I hesitated because I didn’t want to go to the lawyers, and I said, ‘ wait papa, let me write for Moore,’ that is Mr. Keiper, ‘ he knows more about these things.’ ” After saying she wrote to Keiper and that he came on Monday, and Mr. Simon told him to go to the mill and get the old deed, and that he did so but could not find it, she proceeded : “ Then mother brought it downstairs. She had it upstairs in her drawer. She went upstairs alone for the deed. She was alone when she brought it down. . . . When mother returned she handed the deed to papa and he gave it to Mr. Keiper and he was told where to take it. I think my father told him. He was told to take it' to Col. Jordan. Col. Jordan was a lawyer who had transacted some business for the family. After Mr. Keiper was told to take the deed to Col. Jordan he left with it, and returned afterwards with it about 11 o’clock and gave it to mother. Papa read the deed first and then he handed it to me and I read it to mother. . . . I don’t think mother made any special remark about it. . . . The deed was executed a little after 2 o’clock on Monday, Aug. 26, 1889. I think it was mother said she would wait until Lute would come in, which was about two o’clock ; that she did- not want to displease him. She waited and he failed to come. Then she said: ‘ It is my own. I will do as I please. I want you girls to have it.’ Mr. Keiper then went for the alderman. . . . He came and took the acknowledgments. . The deed was given to me by my mother. ... I had no conversation with, mother relative to her property being subject to father’s debts.” Clara L. Simon, another of the daughters, testified: “ I heard mother speak of her intentions in reference to this property prior to the time she made the deed for it. . . . It was within two or three months before the execution of' the deed. She said she always wanted it for the girls: That was the last conversation I heard on this subject prior to the Saturday preceding the Monday on which the deed was made. ... I heard her speak of it before that but not very often, as we were not in the habit .of talking business affairs at home. By we, I mean the family—father, mother and the daughters. She always said she wanted it for the girls. I was present on Saturday afternoon before the deed was made, and I heard sister Annie ask mother at that time if she wanted us to have the property, she should give it to us now. That is as near as I could recall the'words. My father, mother and sister Annie were present in the sitting-room at home. My mother turned to my father and asked him if he would have any objection to her.giving it to the girls, and father said ‘ No, give it to them.’ Then my father said to sister Annie, ‘ Go to Mr. Jordan’s office and have a deed made out.’ ” The witness then proceeded to detail what took place on Monday substantially as the daughter Annie.had testified, including the fact that the mother went upstairs to get the old deed and brought it down. She also said : “ The deed brought back by Mr. Keiper was read to Mrs. Simon. My sister Annie read it in the parlor. I was present when it was read.” The foregoing is practically all the testimony in the case in relation to the deed and the manner in which its execution occurred. We are unable to discover in it all, any of the elements which are So essential to equitable intervention. There is no evidence, not the least, of any exertion of undue influence in the procurement of the deed. It is beyond question that the deed was the voluntary and intended act of the grantors for reasons which, we are constrained to say, we regard as good- and wise reasons for making the conveyance. Both the parents were aged and had in the natural course of events but few years to liv,e. Repose and quiet, especially in so important a matter as the maintenance of their home, were of the utmost consequence to both. The transaction as it was made, secured them in this respect beyond all peradventure. It did not interfere in the least degree with the possession or continued use of the property just as they had enjoyed it for many years. The return deed for the life estate was executed' at the same time with the deed to the daughters. The evidence is most full and satisfactory on that subject, and .that deed fully secured the parents in the possession of the property. Then, too, the grantees in the deed were the grantor’s own children, two of whom had lived with their mother during the whole of their lives, and were now in middle life and without protectors. They were eminently objects of parental solicitude and most deserving subjects for the exercise of • a bountiful provision for their future maintenance and support. At the death of their parents they would be deprived of the pecuniary support which they had always received from their natural protectors; they were too old to engage in any kind of business, and they were women, and not men. Surely persons so situated are fairly entitled to whatever provision can be made for them by loving parents who are so shortly to leave them forever. As between such parents and such children the law makes no presumption of undue influence which the children are bound to explain, in order to obtain the benefit of a voluntary conveyance of property'to them. The parental relation alone is enough to rebut any such presumption, and when to that is added the consideration that the conveyance provides a home for children who are otherwise helpless, and who would be liable to be ejected from their home under the operation of the intestate laws, we may regard the transaction rather as the performance of a high moral duty by the parents than as a suspicious acquisition on the part of the children. In the course of nature these daughters would, under the intestate law, shortly become the owners of. three fifths of the property in any event, and the real subject of the contention therefore becomes substantially only the two fifths, instead of the whole, of the property in dispute. But without lingering upon this line of thought, it is only necessary to say that we regard the conveyance of this property as in all respects conscionable, wise and just, that it was the free, voluntary act of the parents, not obtained by any degree of undue influence or even importunity, that the deed was prepared at the office of counsel who had represented the father in his business transactions, and who was selected for this purpose, and that there is no taint, or suspicion, of unfair advantage, or imposition, or of any wrongful action on the part of thes'e children in obtaining the deed in question. The decree of the court below is affirmed and the appeal dismissed at the cost of the appellant.

Opinion by Mb. Justice Mitchell, The act of June 8, 1893, P. L. 393, while it does not in express terms abolish the office of county auditors in counties having more than one hundred and fifty thousand inhabitants, does so in effect by transferring their duties and powers to a county controller. This is the manifest intent of the act, as gathered from all its provisions, and as especially indicated in section one which directs the election of a controller “in place of-county auditor,” and section fifteen which expressly directs how the duties theretofore devolved on the county auditors shall thereafter be performed. Such moreover, even without an express legislative intent, would be the result of the act. The powers, authority and jurisdiction of an office are the essence of the office itself, and are inseparable from it. To take them away totally is to destroy the office: Com. v. Gamble, 62 Pa. 343; Reid v. Smoulter, 128 Pa. 324. The title of the act under consideration is, “An act creating the office of county controller in counties of this commonwealth containing one hundred and fifty thousand inhabitants and over, prescribing his duties.” In this there is no indication of the purpose and effect of the act-to abolish the office of county auditors. So far as appears in the title, the act is merely cumulative, in providing an additional county officer. It is true that the constitution in enumerating county officers, art. 14, sect. 1, puts the two offices together in the disjunctive, “ auditors or controllers,” and that those who are familiar with the duties of controllers as existing in Philadelphia and Allegheny, would know that they are mainly the same as those of auditors in other counties, and therefqre that the creation of the office of controller was likely to interfere with, if not to abolish, the other. But this is not the notice which the constitution requires the title of the act to give of its subject. The object of that requirement is that legislators, and others interested, shall receive direct notice in immediate connection with the act itself, of its subject, so that they may know or be put upon inquiry as to its provisions and their effect. Suggestions or inferences which may be drawn from knowledge dehors the language used, are not enough. The constitution requires that the notice shall be contained in the title itself: Phœnixville Road, 109 Pa. 44; Ridge Av. R. W. Co. v. Phila., 124 Pa. 219; Phila. v. Ridge Av. R. W. Co., 142 Pa. 484. As this defect in the title is decisive of the unconstitutionality of the entire act, it is not necessary to discuss the other objections raised to it. ■Judgment reversed.

KELLY, Judge: In this opinion, we are called upon to determine whether the presumption of prejudice which arises from a delay in the prosecution of a civil complaint in excess of two years may be rebutted by the conduct of the defendant seeking a judgment of non pros. We hold that where the circumstances indicate that the party seeking non pros has come to the court of equity with unclean hands, that party is estopped from obtaining this equitable remedy. Accordingly, we hold that the trial court erred as a matter of law in granting appellee’s motion for a judgment non pros, and therefore reverse the judgment of the trial court and remand for further proceedings consistent with this opinion. This appeal arises out of the trial court’s grant of appellees’, Nosker Lumber, Inc.’s (“Nosker”) and Jode R. Delp’s (“Delp”), motion for a judgment non pros. Accordingly, the relevant facts and procedural history of this case are as follows. On July 16, 1990, the Mudds filed a complaint against Nosker Lumber, Inc. to recover damages for breach of a written contract for the sale of timber located on a tract of land owned by the Mudds. On September 7, 1990, Nosker filed its answer and new matter. The Mudds filed a reply to Nosker’s new matter on October 4, 1990. On January 31, 1991, Nosker filed a complaint to join Delp as an additional defendant, alleging that Delp was an independent contractor hired by Nosker for the actual cutting and removal of the timber from the appellant’s property. Delp did not respond to the complaint nor did anyone enter an appearance on the court docket. Delp was insured by Rockwood Insurance Company. On August 27, 1991, the appellants received a notice from the Pennsylvania Insurance Department stating that the Rockwood Insurance Company was liquidated and directing that all claims be filed with the appointed liquidator by August 28, 1992. On July 8,1992, the Mudds filed their claim with the Insurance Department and awaited further direction from the liquidator regarding settlement negotiations. There was no further docket activity until August 31, 1993, when the Armstrong County Prothonotary mailed notice to the Mudds that their case was listed for possible termination due to docket inactivity. On October 13, 1993, the Mudds’ counsel filed a praecipe to list the case for trial and the case was placed on the civil trial list, which was scheduled to be called on November 12, 1993. On the eve of trial, November 11, 1993, according to the Mudds, Nosker’s attorney asked the Mudds’ counsel to continue the case to the next trial list so that there could be additional time to negotiate settlement. On December 13, 1993, Nosker filed its motion for judgment of non pros, seeking dismissal of the suit for lack of docket activity in excess of two years. By order dated December 15, 1993, the trial court issued a rule upon the Mudds to show cause why the motion should not be granted and scheduled a hearing for January 31, 1994. After the hearing, the court entered judgment in favor of the appellees. On February 24, 1994, the Mudds sought reconsideration and requested that the trial court remove the judgment of non pros. On October 7,1994, the trial court denied the request making the judgment of non pros a final, appealable order. This timely appeal followed. On appeal, the Mudds raise the following issue: WHETHER THE LOWER COURT ERRED BY GRANTING A JUDGMENT OF NON PROS AGAINST APPELLANTS FOR THE LACK OF DOCKET ACTIVITY. Appellants’ Brief at 4. The Mudds argue that the trial court abused its discretion in three ways. First, the Mudds contend that the trial court erred in holding that the liquidation of appellee’s insurer was not a compelling reason to excuse further pursuit of the action. Second, the Mudds assert that in determining the length of the “delay,” the trial court erred by using as its benchmark the last docket entry rather than the filing of the proof of claim, which occurred on July 8,1992 and would not have appeared as a docket entry. Third, the Mudds aver that neither Nosker nor Delp has been prejudiced by the delay. At the outset, we note that the question of whether to enter a judgment of non pros because of the plaintiffs failure to prosecute his action within a reasonable time rests within the discretion of the trial court and will not be disturbed on appeal unless there is proof of a manifest abuse of that discretion. Penn Piping, Inc. v. Insurance Co. of North America, 529 Pa. 350, 354, 603 A.2d 1006, 1008 (1992). In order to dismiss a case for lack of activity, the movant must show: 1) a party has failed to diligently proceed with reasonable promptitude; 2) there was no compelling reason for the delay; and 3) the delay has caused some prejudice to the adverse party, which will be presumed in actions in which the delay exceeds two years. Id. at 355, 603 A.2d at 1008; Pine Township Water Company v. Felmont Oil, 425 Pa.Super. 473, 476, 625 A.2d 703, 706 (1993), appeal denied, 537 Pa. 665, 644 A.2d 1202 (1994); Pennridge Electric, Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 204, 615 A.2d 95, 98 (1992). The analysis is the same whether the motion for a judgment of non pros is brought sua sponte by the court or by the defendant. Penn Piping v. Insurance Co. of North America, supra at 356, 603 A.2d at 1009. We begin with appellant’s third argument. In Penn Piping v. Insurance Co. of North America, supra, our Supreme Court held that in the absence of a compelling reason, a two year’ delay in the prosecution of a claim is presumptively prejudicial. Penn Piping v. Insurance Co. of North America, supra at 356, 603 A.2d at 1009. A defendant is not required to make any specific showing of prejudice. Id. The Supreme Court listed a number of reasons for establishing such a presumption. For one, after a significant lapse in time, defendants may have a difficult time defending themselves. Witnesses may disappear. Evidence may go stale or become unavailable. Plaintiffs may gain an unfair bargaining chip in negotiations for settlement. Id. at 354, 603 A.2d at 1008. Additionally, defendants who are kept in the dark regarding the status of a lawsuit may be subjected to needless anxiety. Id. What is not clear either from Penn Piping v. Insurance Co. of North America, supra or its progeny is whether the presumption of prejudice may be rebutted by defendant’s own conduct. Based on the following, we conclude that any presumption of prejudice arising from the delay in pursuit of the claim may be rebutted by other circumstances. See Van Loon v. Smith, 103 Pa. 238 (1883). Instantly, the record indicates that prior to praeciping them case for trial, the last docket activity initiated by the Mudds occurred on January 31, 1991. On November 11, 1993, the day before the trial was due to begin, Nosker’s attorney requested that the trial be postponed for another month, ostensibly so that the parties could pursue a settlement. Four weeks later, and several weeks shy of the continued trial date, Nosker moved for non pros on December 13, 1994. These circumstances suggest that the appellees used this additional time to draft a motion for a judgment of non pros. It is simply unreasonable to accept the proposition that the appellees were somehow prejudiced by the delay in prosecution when they themselves requested additional delays. Our Supreme Court’s decision in Penn Piping v. Insurance Co. of North America, supra, was meant to protect defendants from the unfairness, anxiety and prejudice that can result from a plaintiffs failure to pursue a threatened lawsuit. Id. at 354, 603 A.2d at 1008. We are hard-pressed to accept the notion that our Supreme Court, in establishing the “presumption of prejudice” in that case envisioned a situation in which defendants, through their own subterfuge, are able to avoid a final determination of liability. Therefore, we are of the opinion that Nosker and Delp should be estopped from utilizing this equitable remedy. Moreover, to accept the proposition that the appellees have been prejudiced by the delay would stand the principle underlying the grant of non pros on its head. The grant of non pros has evolved as a mechanism to ensure that plaintiffs do not take advantage of defendants through dilatory tactics. Id. at 354, 603 A.2d at 1008. This principle should apply equally to defendants. If a plaintiff cannot delay a lawsuit to achieve a desired result, then neither should a defendant. Additionally, a party seeking equitable relief, as Nosker is doing in this case, must come before the court with clean hands. In re Francis Edward McGillick Foundation, 406 Pa.Super. 249, 263, 594 A.2d 322, 329 (1991), affirmed in part, reversed in part on other grounds, 537 Pa. 194, 642 A.2d 467 (1994). One guilty of wrongdoing should be denied access to the court. Id.; Sprague v. Casey, 520 Pa. 38, 46, 550 A.2d 184, 188 (1988) (“he who seeks equity must do equity”). It is our determination that Nosker has come before the court with unclean hands. Nosker’s request for a continuance was apparently made in bad faith. The ap-pellees misled the Mudds into believing they wished to negotiate a settlement and now ask that this Court reward them for them tactics by affirming the grant of non pros. We cannot, in good faith, affirm a judgment based on principles of equity when Nosker’s own behavior raises fundamental questions of fairness. Therefore, under these circumstances, it is our determination that the presumption of prejudice has been rebutted. Accordingly, we conclude that the trial court misapplied the law of Penn Piping v. Insurance Co. of North America, supra, to justify non pros in the instant case. Because the court’s erroneous application of the law to these facts effectively denied the Mudds them day in court, we hold that this error constitutes a manifest abuse of the trial court’s equitable discretion. Therefore, we vacate the judgment of non pros, and remand this case to the trial court to be listed for a trial on the merits. Order reversed; case remanded. Jurisdiction relinquished. . The motion for continuance was apparently made orally. The trial record contains no written motion for a continuance. Nosker does not deny that it made the request. . Under section 1901(c) of the Pennsylvania Rules of Judicial Administration, a court can motion for a judgment of non pros sua sponte if the plaintiff has failed to take any steps that would constitute docket activity in the previous two years. Pa.R.J.A. 1901(c). . Appellee Delp was granted permission to join Nosker’s motion on January 18, 1994. . Although Nosker and Delp’s behavior in this case clearly raises questions of fairness, the doctrine of equitable estoppel is not strictly applicable here. Equitable estoppel arises when "one by his acts, representations, or admissions, or by his silence when he ought to speak out, intentionally or through culpable negligence induces another to believe certain facts to exist and such other rightfully relies and acts on such belief so that he will be prejudiced if the former is permitted to deny the existence of such fact.” Zitelli v. Dermatology Educ. and Research Foundation, 534 Pa. 360, 370, 633 A.2d 134, 139 (1993) (quoting In re Estate of Tallarico, 425 Pa. 280, 288, 228 A.2d 736, 741 (1967)). When estoppel is established, "The person inducing the belief in the existence of a certain state of facts is es-topped to deny that the state of facts does in truth exist, over a different or contrary state of facts or deny or repudiate his acts, conduct, or statements.” Id., 425 Pa. at 288, 228 A.2d at 741. In the instant case, although Nosker and Delp, by asking for a continuance have acted in such a way as to prejudice the Mudds, they are not attempting to deny their request for a continuance. They are not denying the existence of a set of facts. Strictly speaking, equitable estoppel is not a remedy. In this case, wc are using the term "estoppel” in its dictionary sense, i.e., “That [a] party is prevented by his own acts from claiming a right to the detriment of the other party who was entitled to rely on such conduct and has acted accordingly.” Black’s Law Dictionary, 5th Ed. at 494. . The doctrine of unclean hands applies when the wrongdoing directly relates to the matter in controversy and affects the relationship between the parties. In re Francis Edward McGillick Foundation, supra at 263, 594 A.2d at 329. Further, it may be raised by an appellate court sua sponte. In re Estate of Pedrick, 505 Pa. 530, 482 A.2d 215 (1984); see also Jackman v. Pelusi, 379 Pa.Super. 361, 550 A.2d 199 (1988), superceded by statute on other grounds as stated in Benjamin v. Benjamin, 408 Pa.Super. 320, 596 A.2d 877 (1991) (same).

OPINION NIX, Chief Justice. Appellant, Percy Lee, was convicted by a jury of two counts of murder of the first degree and two counts of possession of an instrument of crime. At the conclusion of the penalty phase of Lee’s trial, the jury returned a sentence of death for each of the two murder convictions. Pursuant to 42 Pa. C.S. § 9711(h)(1), we have jurisdiction to review this direct appeal of Lee’s conviction and sentence. Lee’s conviction resulted from an incident that occurred on February 27, 1986, in which he and his accomplice, Russell Cox, entered the apartment of Evelyn Brown and killed both her and her daughter. Lee, his girlfriend, and his child, had lived with Mrs. Brown and her four children for approximately one year before Mrs. Brown asked him to leave. On February 26, 1986, between the hours of 7:00 p.m. and 8:00 p.m., Lee and Cox knocked on the front door of the Browns’ apartment and asked to use the telephone. After Sonya Brown, one of Mrs. Brown’s daughters, refused to let him in, Lee repeatedly kicked and banged on the door for several minutes. Lee then wrote a message with a magic marker on door which read, “All you bitches, hit man Butter.” Lee and Cox left, but returned to the Browns’ apartment later that evening. At approximately 2:00 a.m., Denise Williams, a neighbor of the Browns, saw the two men standing outside the Browns’ front door. Williams observed Cox conversing through the closed door and heard the voice of one of the female occupants of the apartment while Lee stood to the side with his back against the wall, outside the view of the peephole in the door. At approximately 3:30 a.m., Lee and Cox went to the apartment of a man named Samuel Gilbert, who lived in the same apartment building as the Browns. Gilbert had known Lee and his mother since Lee was a child, and Lee had occasionally stayed with Gilbert after he was evicted from the Browns’ apartment. Lee awoke Gilbert and told him, “I did something bad.” (N.T. 5/1/87, 1075-76). He then admitted, “I stabbed Evelyn.” (N.T. 5/1/87, 1076). Lee then took some clothes that he had left at Gilbert’s apartment, put them in a bag, and said that he was going to his mother’s house. The police arrived at the Browns’ apartment at 8:40 a.m. that morning. They found the body of Evelyn Brown in one of the bedrooms of the apartment. Her hands and feet had been tied behind her back and she was in a kneeling position with her back against the bed. A pah’ of panties had been stuffed into her mouth. Mrs. Brown had been stabbed forty-eight times, primarily in the face, neck, and chest, with a pah’ of scissors and a knife. In another bedroom, police found the body of Tina Brown, the seventeen year-old daughter of Evelyn Brown. Tina Brown’s hands were bound behind her back, and a cloth noose had been tied around her neck. She had been raped and then stabbed to death with a knife and scissors. A total of fifty-three puncture, stab, and knife wounds to the head, neck, and chest were reported by the medical examiner. Police discovered other physical evidence at the crime scene. A bar of blood-stained soap was recovered from a bathroom sink. There were also two playing cards, an ace and a jack, that were lying face up on a pillow next to the body of Evelyn Brown. Later that same day, Samuel Gilbert informed Philadelphia homicide detectives of Lee’s admission. Lee was later arrested at his mother’s home, and a search warrant for the premises was executed. The police recovered two knives, a pair of scissors, and various items of clothing that were removed from Lee’s person. Although it was never established that the knives and scissors were actually used in the commission of the killings, they were consistent with the types of wounds inflicted upon the two victims. In addition, lab analysis of Lee’s clothes confirmed that human blood was present on his pants and sneakers; however, there was not a sufficient quantity of blood to determine a blood type. Likewise, a blood type could not be ascertained from the soap obtained from the crime scene because the substances in the blood that would have allowed an identification had been destroyed by the soap. Lee and Cox were tried jointly before a jury. As noted previously, Lee was convicted of two counts of murder of the first degree and possession of an instrument of crime. At the conclusion of the penalty phase, the jury found three aggravating circumstances and four mitigating circumstances. After weighing the aggravating circumstances against the mitigating, the jury returned a sentence of death for each of the two murder convictions. Post-verdict motions were filed by trial counsel; however, new counsel was appointed and supplemental motions alleging ineffective assistance of counsel were filed. All post-verdict motions were subsequently denied, and this appeal followed. Although Lee has not specifically challenged the sufficiency of the evidence supporting his two first degree murder convictions, we have nonetheless independently reviewed the evidence pursuant to the standard established in Commonwealth v. Zettlemoyer, 500 Pa. 16, 26-27 n. 3, 454 A.2d 937, 942 n. 3 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). When viewed in the light most favorable to the Commonwealth as verdict winner, the evidence, and all reasonable inferences derived therefrom, must support the jury’s finding of guilt beyond a reasonable doubt. Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986). When viewed in this light, Lee’s admission and the totality of the circumstantial evidence set forth above clearly support the jury’s verdict in this case. We therefore proceed to address Lee’s allega tions of trial error and trial counsel’s ineffectiveness. Lee first contends that the municipal court judge who presided at his preliminary hearing erroneously refused to recuse himself after presiding over the preliminary hearing of Lee’s co-defendant, Russell Cox, in which Cox’s confession was admitted. Lee additionally argues that there was insufficient evidence presented at the preliminary hearing to establish probable cause that he committed any crime with respect to Tina Brown. We find both of these claims merit-less. The preliminary hearings for both Cox and Lee were held on the same day. Due to Lee’s unavailability, Cox’s preliminary hearing was first. The Commonwealth’s only witness at this hearing was Homicide Detective Gerald Nachurski who read Cox’s statement to the police into evidence. Cox’s unre-dacted statement fully implicated Lee in the rape and two murders. Later that same day, Lee’s preliminary hearing was held before the same judge. Prior to the hearing, Lee’s counsel moved to have the judge recuse himself because he had already heard Cox’s unredacted statement which implicated Lee. That motion was denied and the hearing was held. Samuel Gilbert was the sole witness presented by the Commonwealth at Lee’s preliminary hearing. Gilbert’s testimony consisted primarily of Lee’s admission that he killed Evelyn Brown. At the conclusion of the hearing, the presiding judge found probable cause to hold Lee over for trial for the deaths of both Evelyn Brown and Tina Brown. It is Lee’s position that insufficient evidence was presented to establish a prima facie case with respect to the homicide of Tina Brown. Lee also maintains that the presiding judge must have considered Cox’s statement implicating Lee in the murder of Tina Brown in order to justify the decision to hold him for trial on that charge because there was no evidence presented that he was involved in that killing. In Commonwealth v. Ballard, 501 Pa. 230, 460 A.2d 1091 (1983), this Court held that “[a] finding at a preliminary hearing that sufficient evidence exists to require a defendant to stand tidal is not subject to review if there has been a subsequent independent judicial judgment that there is sufficient evidence to require the defendant to stand trial.” Id. at 233, 460 A.2d at 1092. Thus, Lee’s adjudication of guilt renders moot any allegation that the Commonwealth failed to establish a prima facie case with respect to the homicide of Tina Brown. See also Commonwealth v. McCullough, 501 Pa. 423, 461 A.2d 1229 (1983) (the fact that the Commonwealth did not establish a prima facie case of robbery at the defendant’s preliminary hearing was immaterial where the Commonwealth met its burden of proving the underlying offense at trial beyond a reasonable doubt). The Commonwealth clearly met its burden of proving the offense beyond a reasonable doubt in this case as evidenced by the jury’s determination of Lee’s guilt for the murder of Tina Brown. Moreover, assuming arguendo that the presiding judge should have recused himself from the preliminary hearing, the jury’s guilty verdict renders harmless any allegation of such impropriety. Accordingly, Lee’s arguments concerning the defects in his preliminary hearing must be rejected as meritless. Lee next alleges that he was denied due process when the trial court denied his request to be tried separately from his co-defendant. In furtherance of this claim, Lee asserts that it was his intention to testify at trial but did not because he and Russell Cox did not want to present inconsistent defenses. Additionally, Lee claims that he was prejudiced by the admission into evidence of three of Cox’s statements to police which implicated Lee in the killings. We conclude that the trial court’s denial of Lee’s motion for severance did not constitute an abuse of discretion, and thus, he is not entitled to relief. It is well established that a motion for severance is addressed to the sound discretion of the trial court, and that its decision will not be disturbed absent a manifest abuse of discretion.... Although the possibility of conflicting defenses is a factor to be considered in deciding whether to grant severance, it is clear that more than a bare assertion of conflict is required. “The mere fact that there is hostility between defendants, or that one may try to save himself at the expense of another, is in itself not sufficient grounds to require separate trials.” Further, “[d]efenses become antagonistic only when the jury, in order to believe the essence of the testimony offered on behalf of one defendant, must necessarily disbelieve the testimony of his co-defendant.” Commonwealth v. Jones, 530 Pa. 591, 602, 610 A.2d 931, 936 (1992) (citations omitted). It has also been held that a joint trial is not only permissible, but advisable, where multiple defendants are charged with participation in the same criminal acts and much of the same evidence is necessary to prove the Commonwealth’s case against each defendant. Commonwealth v. Jackson, 451 Pa. 462, 464, 303 A.2d 924, 925 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 415, 106 A.2d 820, 823, cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954). The policy underlying the preference for a joint trial is the gain in judicial economy where the added costs of a second trial and the time-consuming duplication of evidence can be avoided. Commonwealth v. Patterson, 519 Pa. 190, 197, 546 A.2d 596, 600 (1988). The trial court was mindful of this objective when it considered the motion for severance: Even though a joint trial was ordered, the public expended a substantial part of its scarce judicial resources by tying up one judge for one trial for a period of over six weeks. The grant of a motion for severance augured nightmarish consequences to the citizens and judges here in Philadelphia. In the event of a severance, there would have been two additional trials, possibly being conducted simultaneously, with the increased expenditure of judicial resources and the taxpayers’ money. If these cases had been tried separately, there was a strong likelihood that two judges with two separate juries would have engaged in two separate trials which would have consumed almost three months of time in the same or different courtrooms. Thus, a consolidation of these cases was mandated by judicial and public necessity. Commonwealth v. Lee, Nos. 8605-1163, 1164, 1166, and 1168, slip op. at 9-10 (C.P. Philadelphia County Jan. 14, 1994). In the instant case, both Lee and Cox were charged with the murders of the same two victims at the same time and place. Absent any prejudice to either defendant, the facts of this case weigh in favor of a joint trial. Lee maintains, however, that he was prejudiced by the trial court’s denial of his motion for severance. He contends that if he had testified, he would have exculpated himself by inculpating Cox for the rape and murders. He claims that he and Cox entered into a pact not to testify because neither one wanted to be inculpated by the testimony of the other. Thus, Lee equates the trial court’s refusal to sever the trial as an infringement of his right to testify. We note that Lee has not offered anything other than conjecture and speculation to support his assertion that his invocation of his Fifth Amendment right not to testify at trial was predicated upon his covenant of silence with co-defendant Cox. Furthermore, neither defendant testified at trial, and Lee’s defense was based on a strategy of impeaching the credibility of the Commonwealth’s witnesses and offering alternative explanations for the circumstantial evidence. Cox likewise pursued a similar strategy. Clearly, the defenses presented by the two defendants did not approach the level of antagonism that necessitates severance. See Commonwealth v. Chester, 526 Pa. 578, 590, 587 A.2d 1367, 1373 (1991). Lee also claims that the trial court’s denial of his motion for severance resulted in prejudice and the deprivation of his Sixth Amendment right of confrontation. Lee cites the seminal case of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in support of his assertion that his trial should have been severed so he could avoid the admission at trial of his co-defendant’s redacted statements to police. Although Lee concedes that the statements by Cox were redacted by replacing Lee’s name with the letter “X”, he argues that when read in light of the other evidence connecting him with the crimes, the statements identify him as the other perpetrator. In Bniton, supra, the United States Supreme Court held that a defendant’s rights under the confrontation clause of the Sixth Amendment are violated when a non-testifying co-defendant’s confession naming him as a participant in the crime is admitted at their joint trial. Ajoplying the principles articulated in Bniton, this Court approved of redaction as a way of introducing a co-defendant’s confession at a joint trial while protecting a defendant’s Sixth Amendment right to confrontation. Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). Thus, “[i]f a confession can be edited so that it retains its narrative integrity and yet in no way refers to defendant, then use of it does not violate the principles of Bruton.” Id. at 412, 378 A.2d at 860. Further, in Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603 (1986), we rejected a blanket rule which would prohibit the introduction of a redacted confession which refers to the defendant by “contextual implication.” Id. at 174, 512 A.2d at 605. There is no dispute that Cox’s statements admitted at trial were redacted and contained no explicit references to Lee. Our review of the record reveals that the Commonwealth presented sufficient independent evidence of Lee’s guilt such that even if Lee was implicated by context, the result was harmless error. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (even if admission of co-defendant’s statement had violated Bniton, its admission was harmless in view of the overwhelming independent evidence of defendant’s guilt); accord Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992). Finally, the trial court gave a limiting instruction in its charge to the jury which cautioned that Cox’s statements were to be considered as evidence against him alone. (N.T. 5/18/87, 2052, 2054, 2066). Accordingly, we conclude that the trial court did not abuse its discretion in denying Lee’s motion for severance. Lee’s next assignment of error concerns the trial court’s admission of two knives and a pair of scissors that were seized from his mother’s home pursuant to a search warrant. Lee argues that the court erred in admitting these items on the basis that they constituted irrelevant and inadmissible evidence because they could not be specifically linked to the two murders. This contention is wholly without merit. “ ‘The fact the accused had a weapon or implement suitable to the commission of the crime charged, such as a knife ... is always a proper ingredient of the case for the prosecution.’ ” Commonwealth v. Yount, 455 Pa. 303, 316, 314 A.2d 242, 249 (1974) (quoting 1 Wharton’s Criminal Evidence § 157 at 289-90 (13th ed. C. Torcia 1972)). This court has repeatedly held that the prosecution need not establish that a particular weapon was actually used in the commission of a crime in order for it to be admissible at trial. Commonwealth v. Thomas, 522 Pa. 256, 561 A.2d 699 (1989); Commonwealth v. Clayton, 516 Pa. 263, 532 A.2d 385 (1987), cert. denied, 485 U.S. 929, 108 S.Ct. 1098, 99 L.Ed.2d 261 (1988); Commonwealth v. Brown, 467 Pa. 512, 359 A.2d 393 (1976); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The only burden on the prosecution is to lay a foundation that would justify an inference by the finder of fact of the likelihood that the weapon was used in the commission of the crime. Commonwealth v. Thomas, 522 Pa. at 273, 561 A.2d at 707. “Moreover, the admission of such demonstrative evidence is a matter within the discretion of the trial judge and, absent an abuse of his discretion, his decision must stand.” Id. In the instant case, Dr. Paul Hoyer, the assistant medical examiner who conducted the post-mortem examination of the two victims, testified that the scissors and one of the knives seized from Lee’s mother’s house were consistent with the puncture and stab wounds inflicted upon the victims. (N.T. 4/30/87, 950-51,1003-04). In addition, one of the police officers who executed the search warrant on Lee’s mother’s house testified that he saw Lee in the bedroom and kitchen, the rooms from which the knives and scissors were seized. (N.T. 4/28/87, 610-15). The record contains ample evidence demonstrating that the Commonwealth laid a foundation to justify the inference that the scissors and knife seized by police could have been the murder weapons. We therefore conclude that the trial judge did not abuse his discretion in allowing them admission at trial. Lee’s next contention is that the trial coui’t erred in failing to exclude testimony by the assistant medical examiner concerning post-mortem anthropophagia, damage that results from insects biting human skin. Lee maintains that this testimony was irrelevant and its admission was unduly prejudicial. He further argues that this testimony was elicited purposefully to inflame the passions of the jury and therefore constitutes prosecu-torial misconduct. The medical examiner referred to postmortem anthropophagia in the context of describing the various external wounds that he observed during the post-mortem examination of Evelyn Brown. (N.T. 4/30/87, 991-94). Both defense counsel objected to this testimony. The trial court sustained the objection and thoroughly cautioned the jury that such testimony should be disregarded. (N.T. 4/30/87, 999-1000). The court later instructed the jury that it could not consider in its deliberations any evidence that it was previously told to disregard. (N.T. 5/18/87, 2020). Lee claims that the trial court should have granted a mistrial because these cautionary instructions were insufficient to cure the alleged prejudice. We disagree and find that the cautionary instruction was sufficient to eradicate any prejudice that may have resulted. As the trial court observed, the prejudicial impact of a specific incident must be gauged in the trial context in which it had occurred. In this case, this jury had been exposed to a vivid testimonial description, quite gory and macabre in nature, of the over 100 cutting wounds which had mutually caused the deaths of the victims in this case by exsanguination. Moreover, this jury had viewed photographs depicting the squalid and dirty conditions of the public hallways outside of and the interior bedrooms within the apartment complex in which the bodies of the deceased victims had been finally discovered. Indeed, when presented in the context of this otherwise distasteful, but nonetheless admissible and relevant evidence [the assistant medical examinerj’s reference to the fact that the deceased’s leg had been bitten by a cockroach or so did not prejudice this jury as to deny the defendant a fair trial. Commonwealth v. Lee, Nos. 8605-1163, 1164, 1166, and 1168, slip op. at 27 (C.P. Philadelphia County Jan. 14, 1994). Accordingly, we conclude that the trial court did not err in overruling Lee’s motion for a mistrial. Lee next argues that trial counsel was ineffective for failing to present character evidence. The threshold inquiry in a claim asserting trial counsel’s ineffectiveness is whether the claim has arguable merit. Commonwealth v. Pierce, 515 Pa. 153, 158, 527 A.2d 973, 975 (1987). The paucity of facts set forth in support of this contention makes it evident that Lee is not entitled to relief. “It is well-settled that the failure of trial counsel to call a particular witness does not constitute ineffective assistance unless there is some showing that the testimony of the absent witness would have been beneficial or helpful in establishing the asserted defense.” Commonwealth v. Durst, 522 Pa. 2, 6, 559 A.2d 504, 506 (1989). Here, Lee has not even made an offer of proof that would warrant an evidentiary hearing to determine whether there were witnesses that would have testified to his good character. He submits that “[h]is mother was present throughout the trial,” but fails to assert that she would testify favorably on his behalf. Moreover, the bald assertion that there were other witnesses who would have testified is insufficient and fails to specifically state a basis upon which relief can be granted. Id.; Commonwealth v. Clemmons, 505 Pa. 356, 365, 479 A.2d 955, 959 (1984). It is also noteworthy that the record contains defense counsel’s reasons for failing to present chai-acter evidence. Dux-ing a discussion in the trial judge’s chambers, the following occun-ed: Mr. Gi’ant [assistant district attorney]: I think we ought to put on the record, your Honor, that also that [sic] at the guilt phase of the trial, Mr. Brooks [defense counsel] indicated to me that he intended to present chai-acter testimony; that is, evidence of Mr. Lee’s good chai-acter, at which point I told him that if he put Percy Lee on the stand or any witness to indicate his good chai’acter, I intended to bring in Percy Lee’s brother — who incidentally happened to be the victim of being stabbed [sic] in the face by Mr. Lee — and his girl friend [sic] to indicate that he had bad chai-acter which was, I believe, the basis for Mr. Brooks’ decision not to put forth that type of evidence; is that correct, Mr. Brooks? Mr. Brooks: That’s correct. (N.T. 5/22/87, 2434). We find that the facts of this case fall squarely within the holding of Commonwealth v. Peterkin, 511 Pa. 299, 513 A.2d 373 (1986), cert. denied, 479 U.S. 1070, 107 S.Ct. 962, 93 L.Ed.2d 1010 (1987). In Peterkin, we found that counsel had a reasonable basis to refrain from presenting character witnesses where the potential harm from such evidence outweighed any benefit that might result from it. Id. at 318-19, 513 A.2d at 382-83. Assuming arguendo that character witnesses were available and willing to testify as Lee alleges, we find that counsel’s unwillingness to present these witnesses was a reasonable trial strategy in view of the potentially damaging character evidence that the Commonwealth intended to offer in response. See Id. In his next allegation, Lee asserts that the trial court erroneously admitted eight color photographs of the victims during the penalty phase of his trial. He argues that the inflammatory nature of the photographs outweighed any evidentiary value, and further, that the evidence itself was cumulative. We disagree and find that the trial court properly admitted the photographs during the penalty phase. Photographs of a murder victim are not per se inadmissible. It is the manner in which the corpse is displayed that causes photographs to be emotionally charged. The admission of such photographs is a matter within the sound discretion of the trial judge. The test for determining the admissibility of such evidence requires that the court employ a two-step analysis. First a court must determine whether the photograph is inflammatory. If not, it may be admitted if it has relevance and can assist the jury’s understanding of the facts. If the photograph is inflammatory, the trial court must decide whether or not the photographs are of such essential evidentiary value that then- need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. If an inflammatory photograph is merely cumulative of other evidence, it will not be deemed admissible. Commonwealth v. Chester, 526 Pa. 578, 591-92, 587 A.2d 1367, 1373-74, cert. denied, 502 U.S. 849, 959, 112 S.Ct. 152, 422, 116 L.Ed.2d 117, 442 (1991) (citations omitted). During the guilt phase of Lee’s trial, the Commonwealth presented black and white sketches of the victims drawn by a police artist. In addition, the assistant medical examiner used two mannequins to demonstrate the number and type of wounds that each victim received. There were no photographs presented during the guilt phase. At the penalty phase, the Commonwealth presented six color photographs of the victims in order to prove beyond a reasonable doubt the aggravating circumstance of torture under 42 Pa.C.S. § 9711(d)(8). The Commonwealth submits that these photographs were used to illustrate the nature and extent of the wounds which evidenced the intentional and heinous infliction of substantial pain. Lee claims that the Commonwealth possessed black and white photos which could have been shown to the jury instead. We note, however, that these black and white photographs were taken at the crime scene and showed the victims lying in pools of blood. The black and white picture of Evelyn Brown showed her body hogtied with a gag stuffed in her mouth. In contrast, the color photos shown to the jury depict the victims cleansed of blood in the wound areas and lying prone on the medical examiner’s table. Furthermore, the trial judge instructed the jury that the photographs were to be viewed objectively for the limited purpose of determining whether the killings were committed by means of torture. (N.T. 5/21/87, 2274-76). In view of the subject matter and evidentiary value of the photographs, we conclude that their admission by the trial court did not constitute an abuse of discretion. See Commonwealth v. Henry, 524 Pa. 135, 569 A.2d 929 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (1991) (photographs of cuts and bruises on victim’s body were admissible at penalty phase of defendant’s trial because probative value of vicious nature of killing and prosecutor’s theory that victim had been tortured outweighed any inflammatory effect). Lee next argues that this Court should vacate his death sentence and impose a life sentence because the assistant district attorney, during his summation at the penalty phase, allegedly rendered his personal opinion as to the appropriate sentence. At one point during his closing argument, the assistant district attorney said, “Percy Lee, you deserve to die.” (N.T. 5/22/87, 2418). Our review of the record fails to substantiate Lee’s claim that this comment was intended to be interpreted as the prosecutor’s personal opinion. The prosecutor is permitted, by the terms of the statute, to argue in favor of the death penalty. 42 Pa.C.S. § 9711(a)(3). This rule recognizes the reality that the balance of principles governing the course of argument during the guilt phase of trial [is] altered during the penalty phase of trial. The prosecutor must be permitted to argue the appropriateness of the death penalty as applied to the circumstances because that is the only issue before the jury at the penalty phase of trial. Commonwealth v. Sneed, 514 Pa. 597, 613, 526 A.2d 749, 757 (1987) (citation omitted). When viewed in the context of the entire summation, the comment by the assistant district attorney was not improper nor did it have the effect of diminishing the jury’s objectivity concerning its sentencing duty as defined in the death penalty statute. Accordingly, this claim does not warrant the grant of relief. In his penultimate allegation of error, Lee contends that the Commonwealth failed to present sufficient evidence to support the aggravating circumstance of torture. When reviewing a challenge to the sufficiency of the evidence, this Court must view the evidence, and all reasonable inferences that follow therefrom, in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Rhodes, 510 Pa. 537, 539-40, 510 A.2d 1217, 1218 (1986). The Commonwealth’s evidence consisted of the testimony of the assistant medical examiner, Dr. Paul Hoyer, who performed the autopsies of the two victims. Dr. Hoyer testified that some areas of the body, such as the hands and face, have many more nerve endings than other parts of the body, and therefore, are much more sensitive to pain. (N.T. 5/21/87, 2276). He further indicated that there were nine stab and slash wounds on the face of Evelyn Brown and six such wounds on the face of Tina Brown. (N.T. 5/21/87, 2277-78). Based upon the redacted confession of Russell Cox and evidence of bleeding from the wounds, it was Dr. Hoyer’s opinion that the injuries to Tina Brown were inflicted while she was alive. (N.T. 5/21/87, 2281-83). Dr. Hoyer testified that forensic evidence revealed that Evelyn Brown was also alive when her facial wounds were inflicted. (N.T. 5/21/87, 2283-84). In view of the weapons used and the restraints placed upon the victims, Dr. Hoyer concluded that it would have been very easy to cause rapid death if the perpetrator had so intended. (N.T. 5/21/87, 2292). Accordingly, the nature and extent of the wounds to both the vital and non-vital parts of the body provide ample evidence in the record to support the jury’s finding of the aggravating circumstance of torture. Finally, Lee argues that the trial court erred in permitting the jury to consider the rape of Tina Brown as an aggravating circumstance. Although Russell Cox was convicted of the crime, Lee points out that he was not, and thus, the jury should not have considered it as an aggravating circumstance. Although Lee was not charged with or convicted of rape, the death penalty statute does not require that a defendant be convicted of the substantive offense under the crimes code in order for the jury to consider it as an aggravating factor. If the legislature had intended that 42 Pa.C.S. § 9711(d)(6) be supported by a conviction, it would have made such a requirement explicit as it did with the other aggravating circumstances. See 42 Pa. C.S. § 9711(d)(9) (“The defendant has a significant history of felony convictions.... ”); 42 Pa.C.S. § 9711(d)(10) (“The defendant has been convicted of another Federal or State offense....”); 42 Pa.C.S. § 9711(d)(11) (“The defendant has been convicted of another murder_”); 42 Pa.C.S. § 9711(d)(12) (“The defendant has been convicted of voluntary manslaughter.... ”). Thus, the only relevant inquiry is whether there is sufficient evidence in the record to support the aggravating circumstance that the killing was committed while in the perpetration of a felony. Because it is our statutory duty to insure that the evidence supports each of the aggravating circumstances, we will proceed with a sufficiency review of all aggravating circumstances found by the jury. See 42 Pa.C.S. § 9711 (h)(3)(ii). Russell Cox’s confession clearly establishes the commission of the rape of Tina Brown prior to her brutal murder. Cox’s statement contained the following: “X took Tina in the next bedroom and he told me to go up front to the living room. I was in the living room four or five minutes and he called me to come back. I went back to the second bedroom and I saw Tina on her back on the bed, her hands tied behind her back. She had a shirt on and a pan’ of panties. Then X took off her panties and told me to go ahead. Then I f_ed her.” (N.T. 4/29/87, 739). Based upon the verdict in the guilt phase, it is clear that the jury believed beyond a reasonable doubt that Lee was the unnamed accomplice in Cox’s statement. In addition, Dr. Hoyer testified that evidence of semen was discovered in the vagina of the Tina Brown during the postmortem examination. (N.T. 4/30/87, 970). Thus, the evidence that Lee was an accomplice in the rape of Tina Brown is sufficient to support the jury’s finding of this aggravating circumstance. See 18 Pa.C.S. § 306; Commonwealth v. Bradley, 481 Pa. 223, 392 A.2d 688 (1978) (“Under our law it is now axiomatic that the actor and his accomplice share equal responsibility for the act.”). We have already considered and rejected Lee’s challenge to the sufficiency of the evidence supporting the aggravating circumstance of torture. The only remaining aggravating circumstance is that under 42 Pa.C.S. § 9711(d)(10), which provides: “The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable.... ” Thus, where a defendant commits more than one first degree murder during a given episode, one murder constitutes an aggravating circumstance for the other. Commonwealth v. Heidnik, 526 Pa. 458, 587 A.2d 687 (1991); Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904 (1989); Commonwealth v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989). At the commencement of the penalty phase, all relevant and admissible evidence from the guilt phase was incorporated by the Commonwealth, including the verdicts of guilt for two counts of murder of the first degree. (N.T. 5/21/87, 2269). Each murder therefore serves as an aggravating circumstance for the other. Accordingly, there is sufficient evidence in the record to support the jury’s finding of this aggravating circumstance. Finally, our review of the record reveals that the sentence imposed by the jury was not the product of passion, prejudice, or any other arbitrary factor. The information compiled by the Administrative Office of Pennsylvania Courts indicates that the sentence imposed in this case is not disproportionate to the sentence imposed in similar cases. Judgement of sentence affirmed. CAPPY, J. concurs in the result. MONTEMURO, J., is sitting by designation. . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 907. . It is unclear from the record who called the police. Sonya Brown, who was on an overnight babysitting job at a neighbor’s house, testified that she received a call from her cousin Tracy informing her that her mother and sister were dead. She further testified that she did not know who called the police. . The aggravating circumstances were: that the defendant committed a killing while in the perpetration of felony, 42 Pa.C.S. § 9711(d)(6); that the offense was committed by means of torture, 42 Pa.C.S. § 9711(d)(8); and that the defendant had been convicted of another offense for which a sentence of life imprisonment or death could have been imposed, 42 Pa.C.S. § 9711 (d)( 10). . The four mitigating circumstances were: that the defendant had no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); that the defendant was under the influence of extreme mental or emotional disturbance, 42 Pa. C.S. § 9711(e)(2); the age of the defendant at the time of the crime, 42 Pa.C.S. § 9711(e)(4); and other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense, 42 Pa.C.S. § 9711(e)(8). . Lee does, however, claim that the prosecutor, while reading one of Cox’s redacted statements in open court, either intentionally or accidently read the name "Percy” instead of “X.” Our review of the record reveals that this allegation is meritless. (N.T. 5/5/87, 1284-86). . We also decline to characterize the prosecutor’s attempt to elicit the testimony in question as prosecutorial misconduct. The prosecutor indicated to the trial court that he intended to use the medical examiner's testimony to establish the approximate time of death of the victims. (N.T. 4/30/87, 996). On appeal before this Court, the Commonwealth represents that the prosecutor elicited the testimony "to show that the bodies had remained in place for an extended period, so as to establish defendant's opportunity to commit the crimes.” Brief for Appellee at 30. . After devoting four pages to general citations concerning the test for ineffectiveness of counsel and the admissibility of character evidence, the totality of Lee’s argument on this point consists of the following: It is conceded that an evidentiary hearing was never held regarding the character witness issue in this matter. However, it is submitted that appellant had witnesses who would have testified. His mother was present throughout the trial. This evidence would have been helpful in rebutting the Commonwealth’s proof of a specific intent to kill on appellant’s part. It is submitted that trial counsel could have no reasonable basis for failing to present this evidence. Brief for Appellant at 30. . Although Lee asserts in his brief that eight photographs were admitted, the trial judge indicated in his opinion that six photographs were admitted. Our review of the record confirms that six photographs were admitted. . Lee also claims that by showing the color photographs, instead of the black and white photographs, the assistant district attorney’s actions constitute prosecutorial misconduct. We find this contention completely baseless. . Lee fails to cite another portion of the closing argument where the assistant district attorney stated, "I say they should die.” (N.T. 5/22/87, 2429). Following an objection by defense counsel, the court promptly admonished the jury that they were not to construe the prosecutor’s com-merits as an opinion concerning the credibility or weight of the evidence. (N.T. 5/22/87, 2429). The assistant district attorney then advised the jury, "That’s not my personal opinion. That’s my opinion based on reading this law, knowing how it should be applied, and looking at the facts in this case, I say based on that, they should die.” (N.T. 5/22/87, 2429-30). Based on the trial court's limiting instruction and the context of these comments, we conclude that this comment likewise does not entitle Lee to relief. . The prothonotary of the Supreme Court is directed to transmit the full and complete record in this case to the Governor. 42 Pa.C.S. § 9711 (i).

BECK, Judge: In this Commonwealth appeal, we evaluate whether the Commonwealth has presented a prima facie case before a district justice in order to defeat a defendant’s petition for habeas corpus relief. The Commonwealth appeals from the order of the Court of Common Pleas granting in part appellee’s petition for writ of habeas corpus. For the reasons that follow we find that the Commonwealth has set forth sufficient evidence to make out its prima facie case. We therefore reverse the order of the Court of Common Pleas and remand for further proceedings. This matter arises out of a payment of $5,275.00 made by Hazel Township, Luzerne County (Township), to appellee Gary Lagaña in September of 1986. At the time of the payment, Lagaña was serving as a Township Supervisor and was also an insurance salesman. The Township intended that Lagaña use the money to procure an Errors and Omissions insurance policy for the Township. It is uncontested that Lagaña never purchased the policy. It is further uncontested that Lagaña did not return the money until October of 1993, when ordered to do so by the State Ethics Commission. Following the Ethics Commission’s investigation, the Commonwealth filed criminal charges against Lagaña charging him with restricted activities, theft by unlawful taking, theft by deception, receiving stolen property, and theft by failure to make required disposition of funds received. Following a preliminary hearing Lagaña filed a petition for writ of habeas corpus, arguing that the Commonwealth failed to present sufficient evidence to make out a prima facie case for each of the crimes charged. The hearing court agreed and granted Lagana’s petition on all charges except the charge of restricted activities. This appeal followed. In Commonwealth v. Lacey, 344 Pa.Super. 576, 496 A.2d 1256 (1985), a panel of this court discussed the purpose of a preliminary hearing and our standard in reviewing an order granting habeas relief. A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury. Case law provides a mechanical standard of review: Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such ... offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] then [the defendant] is entitled to be discharged. Id. at 583-84, 496 A.2d at 1260-61 (citations omitted) (quoting Commonwealth v. Lynch, 270 Pa.Super. 554, 411 A.2d 1224 (1979)). With these standards in mind we turn to the record of the preliminary hearing to determine whether the facts presented by the Commonwealth make out a prima facie ease of the crimes charged. The Commonwealth presented evidence at the preliminary hearing supporting the following facts: that the Township provided Lagaña with the money in question for the express purpose of obtaining a particular kind of insurance policy for the Township (R.R. 22-29); that Lagaña informed other Township Supervisors that he had placed the policy when in fact he had not (R.R. 52); that Lagaña placed the money in a business account and that the funds may have been used by the business for purposes other than procurement of the insurance policy (R.R. 97); that Lagaña in fact never obtained the insurance policy (R.R. 24); that Lagaña kept the money for eight years and returned it only after being ordered to do so by the State Ethics Commission (R.R. 38-39, 96). We must next determine whether these facts are sufficient to make out each element of the crimes charged. A defendant is guilty of theft by unlawful taking if he unlawfully takes, or exercises control over, movable property of another with the intent to deprive him thereof. 18 Pa.C.S.A. § 3921(a). Lagana’s failure to return the Township’s money when his efforts to procure an insurance policy failed reasonably may be considered an illegal exercise of control over the funds. However, the hearing court concluded that the Commonwealth failed to provide proof of criminal intent. We disagree. In evaluating whether the Commonwealth has made out its prima facie case, criminal intent may be inferred from circumstantial evidence. See Commonwealth v. Neckerauer, 421 Pa.Super. 255, 617 A.2d 1281 (1992) (en banc); Lacey, 344 Pa.Super. at 584-85, 496 A.2d at 1261. We find that the evidence presented by the Commonwealth, particularly that Lagana may have lied regarding whether the policy had been placed and did not return the money until ordered to do so by the Ethics Commission, is sufficient to infer Lagana’s criminal intent. We therefore conclude that the Commonwealth has made out a prima facie case of theft by unlawful taking. A defendant is guilty of theft by deception if he obtains or withholds property of another by deception. 18 Pa.C.S.A. § 3922(a). A person deceives if he intentionally “creates or reinforces a false impression, including false impressions as to ... intention or other state of mind; but deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise.” 18 Pa.C.S.A. § 3922(a)(1). It is clear that Lagana obtained or withheld the property of another. Additionally, while we may not infer intent to deceive based solely on Lagana’s failure to obtain the insurance policy, the Commonwealth’s evidence that Lagana may have lied to his fellow Supervisors regarding placement of the policy is sufficient to overcome the Commonwealth’s burden of showing prima facie intent. The Commonwealth’s evidence is therefore sufficient to make out a prima facie case of theft by deception. A defendant is guilty of receiving stolen property if he receives, retains, or disposes of movable property of another knowing that it has been stolen, unless the property is received, retained or disposed with the intent to restore it to the owner. 18 Pa.C.S.A. § 3925(a). Again, in the instant case there is no dispute that Lagana received the money in question. The only question is whether the Commonwealth provided sufficient evidence to support the contention that Lagana intended to steal the money and did not intend to return it to the Township. We again find the Commonwealth’s evidence, particularly evidence suggesting that Lagana may have lied to other Township Supervisors and did not return the money until ordered to do so, sufficient to make out a prima facie case of criminal intent. A defendant is guilty of theft by failure to make required disposition of funds received if he obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition of the property, and intentionally deals with the property as his own and fails to make the required payment or disposition. In the instant case, it is undisputed that Lagana obtained the money subject to a known legal obligation to purchase an insurance policy. Additionally, Lagana clearly dealt with the money as his own, commingling the funds with those of his business and possibly using some or all of the money to finance his business operations. Once again, what is at issue is Lagana’s intent. As we did supra, we find the evidence of possible misrepresentations to other Township Supervisors and Lagana’s failure to return the money until ordered to do so sufficient to make out a prima facie case of criminal intent. We conclude that the hearing court erred in granting Lagana’s petition for writ of ha-beas corpus. We emphasize that we make no judgment as to Lagana’s guilt or innocence. We merely hold that the Commonwealth presented sufficient evidence to make out a prima facie case for each of the crimes charged. Order reversed. Case remanded for proceedings consistent with this opinion. Jurisdiction relinquished. . 65 Pa.S.A. § 403(a). . 18 Pa.C.S.A. § 3921(a). . 18 Pa.C.S.A. § 3922(a)(1)(2)(3). . 18 Pa.C.S.A. § 3925. . 18 Pa.C.S.A. § 3927.

Opinion bv Mb. Justice Mitchell, That the executor, in good faith and with reasonable grounds to believe that the estate was solvent, paid the interest and the judgments, gives him, as the auditor found and the court be-' low held, an equitable right of subrogation,, to which he maybe entitled even at the present time provided it can be allowed-without injury tq others. So far therefore as the fund was: the proceeds of personal property, the distribution may be sus-, tained upon the opinion of the learned judge below. •But with regard to the proceeds of the real estate the case is entirely different. There were lien creditors with rights of priority between themselves, and as to other creditors. They stood in line, and when one of them stepped out, by expiration of his lien or payment or any other cause, all those in the rear advanced a step towards the front. Their rank and standing were fixed absolutely as a matter of law, by the sale. After that no new rights of lien, or claim on the proceeds, could be acquired by subrogation or otherwise. This was firmly settled in Douglass’s Appeal, 48 Pa. 223, and Gring’s Appeal, 89 Pa. 339, where even sureties, who had an unquestioned right of subrogation, were held to have lost it as against junior' incumbrancers by failing to assert it until after a judicial sale. The learned judge below apparently treated this rule as de-' pendent on the particular facts of each case, showing actual injury to'the junior lien holders, and as there was no evidence in the present case that, the appellants would have bid any. more at the sale if they had known that Mr. Stuart was enti-. tied to subrogation to the interest and judgments he had paid, hp held that they were .not injured, but only disappointed by the subrogation. The rule, however is a presumption of law, not rebuttable, and the fact is to be decided by the state of the record at the date of the-sale. In Harner’s Appeal, 94 Pa. 489, it was held that a judgment creditor had a right to rely on the apparent priority of his judgment shown by the satisfaction of record of an earlier one; and in Indiana County Bank’s Appeal, 95 Pa. 500, it was said by the present Chief Justice: “The rights of those claiming to participate in the proceeds of a sheriff’s sale are to be determined by their status as shown by the record at the time of the sale.” In none of the cases is any reference made to the evidence, or the fact of injury to the junior incumbrancers, the inference of injury is drawn as a presumption juris et de jure, and the rule is a rule of policy in the interest of certainty in judicial sales. It is unfortunate for tbe executor that his very carefulness to have the payments noted on the record, should work to his disadvantage now,, but the payments of interest must stand on the same basis as the payments of principal. Both being on the record as reductions or satisfaction of the judgments, at the time of the sale, must be conclusively presumed to be so as against junior judgment creditors claiming the fund. Decree reversed, and distribution directed to be made in accordance with this opinion.

ROWLEY, President Judge. Robert Horniekle was killed in January, 1983, after he tried to recover $14,000 that he had borrowed from a friend and then given to Ronald DeCaprio and appellant Joseph Rico in an unsuccessful attempt to buy marijuana. In April, 1986, DeCaprio was convicted on federal racketeering charges, with one of the predicate offenses being the murder of Horniekle. In May, 1990, appellant was charged with the murder of Horniekle. On February 21, 1992, a jury convicted appellant of murder in the first degree. In this timely appeal from the judgment of sentence of life imprisonment, appellant contends that he is entitled to an arrest of judgment as the result of prejudicial pretrial delay that violated his right to due process. Alternatively, appellant asserts that he is entitled to a new trial for the following reasons: 1) the trial court erred in failing to strike the jury panel as the result of the prosecutor’s use of peremptory challenges to exclude jurors of Italian descent; 2) prosecutorial misconduct was so pervasive as to deny appellant a fair trial; and 3) the trial court permitted the Commonwealth to introduce inadmissible and prejudicial evidence. After careful review, we conclude that appellant’s rights under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), were violated and he is entitled to a new trial. We turn first to appellant’s claim of prejudicial pre-trial delay, for such a claim, if successful, would entitle him to be discharged. Commonwealth v. Colson, 507 Pa. 440, 451, 490 A.2d 811, 817 (1985), cert. denied, 476 U.S. 1140, 106 S.Ct. 2245, 90 L.Ed.2d 692 (1986). In her opinion of July 29, 1994, the trial court has concisely applied the controlling case law to the facts of appellant’s case, and we agree, for the reasons set forth at pages 5-8, that appellant’s claim is without merit. See also Commonwealth v. Daniels, 480 Pa. 340, 390 A.2d 172 (1978) (pre-arrest delay of approximately six years and nine months did not violate due process); Commonwealth v. Grazier, 391 Pa.Super. 202, 570 A.2d 1054 (1990) (accord). Appellant contends next that under Batson and its progeny, the trial court erred in refusing to strike the jury panel when the prosecutor failed to provide legitimate, race-neutral reasons for exercising peremptory challenges to strike jurors of Italian descent. We agree. Batson requires that a “criminal defendant’s jury be selected without purposeful racial discrimination.” Commonwealth v. Smulsky, 415 Pa.Super. 461, 464, 609 A.2d 843, 844 (1992), appeal denied, 532 Pa. 663, 616 A.2d 984 (1992). The defendant has the initial burden to establish a prima facie case of purposeful discrimination, Commonwealth v. Dinwiddie, 529 Pa. 66, 601 A.2d 1216 (1992), by demonstrating that the circumstances of his case raise an inference that the prosecutor used his peremptory challenges to exclude venirepersons on the basis of race or ethnicity, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality opinion per Kennedy, J.); Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557 (1994); Commonwealth v. Correa, 423 Pa.Super. 57, 620 A.2d 497 (1993), appeal denied, 536 Pa. 638, 639 A.2d 24 (1993). Once a defendant establishes a pri-ma facie case, the burden shifts to the prosecution to provide a legitimate, race-neutral reason for each peremptory challenge directed at the suspect racial or ethnic group. Dinwiddie, supra. Although the explanation need not rise to the level required for a challenge for cause, Correa, 423 Pa.Super. at 65, 620 A.2d at 501, a bald statement that the prosecutor’s actions involved “no racial motive,” or were undertaken in good faith, is insufficient to meet the burden of production necessary to rebut a prima facie case. Commonwealth v. Wheeler, 435 Pa.Super. 266, 271, 645 A.2d 853, 855 (1994), citing Smulsky, 415 Pa.Super. at 465, 609 A.2d at 844-45. A trial court’s subsequent determination with respect to intentional discrimination is a finding of fact to be given great deference in appellate review, Commonwealth v. Young, 536 Pa. 57, 637 A.2d 1313 (1993), and will not be disturbed absent a determination that the trial court’s ruling was clearly erroneous, Commonwealth v. Jackson, 386 Pa.Super. 29, 562 A.2d 338 (1989) (en banc), appeal denied, 525 Pa. 631, 578 A.2d 926 (1990). The Commonwealth argues that appellant failed to establish a prima facie case because Italian-Americans are not a cognizable group warranting protection from discrimination under Batson. We disagree. To begin with, in enunciating the now familiar principles of Batson (a case concerned with the exclusion of African-Americans from serving on a petit jury), the Court relied upon a previous decision involving systematic exclusion of Mexican-Americans from grand jury selection in Texas to identify the “showing necessary to establish a prima facie case of purposeful discrimination.” Batson, 476 U.S. at 94, 106 S.Ct. at 1722, citing Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977). Subsequent decisions of the United States Supreme Court, the Pennsylvania Supreme Court, and this Court, have increasingly recognized that any analysis of an alleged Batson violation should necessarily focus on the discriminatory pattern allegedly employed. To suggest, as the Commonwealth contends, that a Batson violation hinges only on whether the excluded group is a “cognizable group” through proof that the group has historically “been or [is] subject to discriminatory treatment,” would be a distortion of the law as it has evolved under Bat-son. If any identifiable group is excluded on the basis of race, gender, ethnicity, or other reason not related to a perception that the individual member would be unable to adequately perform the functions and duties required of a juror in the case presented, impermissible discrimination has occurred. See, e.g., J.E.B. v. Alabama ex rel. T.B., — U.S. —, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (equal protection clause forbids exercise of peremptory challenges on basis of gender); Hernandez, supra (Batson violation would occur if prosecution exercised peremptory challenges to exclude “Latinos by reason of them ethnicity”; no clear error found in trial court’s determination that charge of purposeful discrimination was rebutted); Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) (white defendant has equal right to object to exclusion of black veniremen through use of peremptory challenge); Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (equal protection rights of challenged juror violated if challenge based on race); Commonwealth v. Horne, 535 Pa. 406, 635 A.2d 1033 (1994) (prosecutor’s reason for exclusion, that prospective juror lived in “high crime” area and was therefore desensitized to crime, was not race-neutral as applied to individual juror excluded) (Nix, C.J., Opinion in Support of Affirmance); Correa, supra (Powers decision eliminated two requirements of prima facie showing previously required of defendant under Batson: defendant no longer need establish that he or she is a member of a cognizable racial group, nor a member of the same group as that excluded through use of peremptory challenges). We believe that the evolution of the law under Batson and its progeny consistently demonstrates that three distinct interests are implicated. First, a litigant has the right to a jury selection process free of discrimination. Second, a prospective juror has a right to participate in this essential civic duty with confidence that he or she was evaluated by virtue of ability to serve, regardless of race or ethnic heritage, and “free from state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.” J.E.B., — U.S. at —, 114 S.Ct. at 1421, 128 L.Ed.2d at 97. Lastly, the community has the right to an unquestioned belief that our system of justice operates without discrimination at every level. Dinwiddie, 529 Pa. at 75, 601 A.2d at 1220-21. Only if all three “multiple ends” identified by the Supreme Court are served is equal protection afforded to all. Powers, 499 U.S. at 406, 111 S.Ct. at 1368; Dinwiddie, supra. Voir dire of prospective venirepersons for appellant’s trial consumed four days. Prior to swearing the first panel of prospective jurors, the trial court and counsel agreed to the questions the court would direct members of the panel to answer. They included inquiries with respect to a juror’s age, occupation, place and length of residence, as well as a specific question, composed by the trial court, regarding a prospective juror’s ability to be fair and impartial in light of “evidence in this case that might tend to connect the defendant and/or one or more of the witnesses with organized crime.” According to the trial court, the question was designed to benefit the prosecution as well as the defense, since it would elicit “whether they would have a prejudice.” Of the twenty peremptory challenges available to, and used by the prosecutor, appellant points to seven exercised to exclude individuals of apparent Italian descent from those ultimately selected to serve on the jury at appellant’s trial. Appellant raised his first Batson objection when the prosecutor exercised two consecutive peremptory challenges the first day to exclude Cathy R. and Enrico S. When a third venireperson of apparent Italian descent, Linda G., was peremptorily excluded by the prosecutor, appellant’s counsel again objected, noting the prospective juror’s Italian surname. After discussion, the trial court informed the prosecutor, “I will give you notice to start noting down your reasons in case I require you.” The following day, after the prosecutor exercised three more peremptory challenges to exclude venirepersons with Italian-sounding surnames, Mary T., Vincent G., and Susan B., the trial court acknowledged that a prima facie case of discriminatory intent had been made out in the following exchange: THE COURT: [ ] We have had very few people of Italian descent on the jury panel. I notice two or three on each one of these panels. The same is true of this panel, very few and[,] except for Mr. DeAngelis who was accepted by the Commonwealth[,] all the others have been peremptory challenged by the Commonwealth. MR. CAMPOLONGO: So what? Your Honor is saying I am not permitted to exercise? THE COURT: That’s the entire point of [Batson ], Mr. Campolongo, that the court can disallow a challenge if the court believes that the challenges are being used to purposely exclude one particular group and it would appear to me from the record that the record shores a purposeful exclusion o[r] pattern of exclusion on the part of [the] Commonwealth on anybody who appears to be of Italian descent. The prosecutor exercised a seventh peremptory challenge to exclude a venireperson of conceded Italian descent, John T., from a panel drawn to select alternate jurors on the fourth day. We find that the record supports the trial court’s determination that an inferential pattern of discriminatory intent was sufficiently established to properly shift the burden to the prosecutor to place on the record his reasons for exercising peremptory challenges against venirepersons of apparent Italian descent. Accordingly, once a prima facie case was made out and the prosecutor required to provide legitimate, ethnically neutral explanations, it is axiomatic that any justification so offered may not be based upon the individual’s ethnicity. Hernandez, 500 U.S. at 360, 111 S.Ct. at 1866, 114 L.Ed.2d at 405 (a neutral explanation means one based on something other than the race of the juror). We turn, then, to a review of the record to determine if the prosecutor provided legitimate, ethnically neutral reasons for the exercise of its peremptory challenges against ven-irepersons of Italian descent. We do not have the benefit of the prosecutor’s reasons for striking the first three jurors of apparent Italian descent, as the trial court, despite its ruling, failed to require the prosecutor to place his reasons on the record. The record establishes an ethnically neutral reason for the prosecutor’s fourth peremptory challenge exercised against an individual of apparent Italian descent, Mary T. After conceding that Ms. T. was Italian, the prosecutor stated that he struck her for insufficient “intelleet[ual] wherewithal to comprehend the facts of the case.” The record confirms that the prospective juror struggled to comprehend the trial court’s use of the word “impartial” and admitted to being “a little nervous.” Doubt with respect to a juror’s ability to comprehend the court’s directions is a legitimate, race-neutral explanation. Wheeler, supra. Similarly, the prosecutor’s peremptory challenge exercised on the last day of voir dire to exclude John T. as an alternate juror, although a closer case, was explained by his perception during the court’s voir dire that John T. was “a very, very strange person,” and “probably an extremely[,] very unusual person, probably gay,” and “not because he’s Italian. That’s really true.” However, we need look no further than the explanation provided by the prosecutor when a fifth peremptory challenge was exercised to exclude venireperson Vincent G. to find a reason that, under any analysis, is not ethnically neutral: MR. MYERS: I would ask your Honor that counsel state his reasons why he has used a peremptory challenge. THE COURT: One moment. Mr. Campo-longo? MR. CAMPOLONGO: Yes, I didn’t like the way he reacted to the question about his ears turned red, he turned red the question asked about organized crime and he said I guess so, something like that. I didn’t like, I detected what I thought was fear in his demeanor and his voice when organized crime was mentioned and that in conjunction with his Italian background led me to believe he would not be a juror suitable with this case. While the trial court denied defense counsel’s immediate objection and motion to dismiss the panel, we note that, unlike the other peremptory challenges at issue in this case, the trial court makes no attempt to provide an ethnically neutral justification in hindsight for the prosecutor’s reasons for striking this juror. Our resolution of this case could well end with the conclusion that the prosecutor’s reason for striking prospective juror Vincent G. was impermissibly discriminatory. However, in light of the persuasive reasoning set forth in the Pennsylvania Supreme Court’s decision in Horne, supra, we are also troubled by the prosecutor’s exclusion of the next prospective juror of Italian descent, Susan B. When asked whether evidence that the defendant or one or more witnesses was linked to organized crime would affect her ability to be fair and impartial, she responded: THE VENIREMAN: I don’t think that would bother me at all. I know I live in South Philadelphia and they consider that the mob area[,] but I don’t know anybody in organized crime so I don’t think it would effect [sic] me at all. THE COURT: Do you have any doubt about that? THE VENIREMAN: No. The prosecutor offered the following justification for striking Susan B.: THE COURT: Would you please place on the record your reason for peremptory of this juror who obviously is of Italian descent? MR. CAMPOLONGO: I’ll agree she’s Italian. Appears to be Italian. THE COURT: She said of Italian descent. Do you want me to ask her what her maiden name is? MR. CAMPOLONGO: I’ll agree. I don’t think it’s necessary. I’m striking her because she lives in South Philadelphia in an area over which the mob will speak and I think she’s subject to intimidation[.] [I]n an abundance of caution I’m striking her. ■ THE COURT: I’m disallowing that challenge. There’s absolutely no indication at all of any of that on the part of this juror. She said she doesn’t know anybody and this wouldn’t have any effect on her and I don’t think this is reason for your challenge. Despite its rejection of the prosecutor’s explanation, the trial court excused Susan B. after the prosecutor complained that exercising a peremptory strike in the juror’s presence would prejudice the prosecution at trial. This attempt to justify striking Susan B. is especially egregious in light of the fact that the prosecutor went on to accept two jurors who resided in South Philadelphia, for thirty-five and twenty-three years respectively, but who were not of apparent Italian descent. Appellee argues that the prosecutor excluded Susan B. after making a determination that she lived in a specific “part of South Philadelphia subject to Mob or La Cosa Nostra influence.” Even were we to assume that a threat of insidious “mob” intimidation was real, the prosecutor failed to offer any reason why this particular prospective juror was more susceptible to intimidation than the jurors who were accepted. Absent evidence that a challenged venireperson “actually entertained the bias underlying the use of that factor,” place of residence is not necessarily a race-neutral explanation. Horne, 535 Pa. at 409, 635 A.2d at 1034, citing Lynn v. Alabama, 493 U.S. 945, 947-48, 110 S.Ct. 351, 352, 107 L.Ed.2d 338, 340 (1989) (Marshall, J., dissenting from denial of certiorari); but cf. Jackson, 386 Pa.Super. at 59, 562 A.2d at 353 (trial court did not err in accepting as neutral a prosecutor’s striking four prospective jurors who “had a familiarity with the location where this incident was alleged to have taken place,” while accepting three others, as part of over all strategy). The trial court was correct to reject the prosecutor’s explanation when it was offered. Thus, we cannot agree with the trial court’s conclusion, made in hindsight and after “careful review,” that the Commonwealth “articulated [a]n ethnically neutral basis” for each challenge to which a timely objection was made. The record with respect to the prosecutor’s explanation for peremptorily excluding Vincent G., on its face, belies this contention. The fact that Susan B., a venire-person of Italian descent, lived in South Philadelphia, without more, says nothing about why she was more vulnerable to intimidation than others who were not of Italian descent. Nor can we agree that any harm inherent in the prosecutor’s pattern of discriminatory exclusion is ameliorated by the fact that “the jury panel did include a juror of Italian descent and one alternate juror with an Italian surname.” Advancing an argument that members of an excluded group eventually found their way onto a jury panel is, at best, a relevant factor for a trial court to consider when faced with making a determination with respect to whether a prima facie case is made out. Jackson, 386 Pa.Super. at 47, 562 A.2d at 346-47. It is not sufficient to overcome the inference of discriminatory intent, once a prima facie case is established. The “improper exclusion of a single juror based upon race is sufficient to ‘taint’ the proceedings, and the number ... that remains to serve is irrelevant for purposes of legitimizing the selection process.” Dinwiddie, 529 Pa. at 72 n. 10, 601 A.2d at 1219 n. 10, citing Powers, 499 U.S. at 411-12, 111 S.Ct. at 1371, 113 L.Ed.2d at 426. We are not unaware that the conclusion we reach in this case will be perceived to be an additional restriction on the right to exercise peremptory challenges, a practice only recently subject to judicial oversight. A peremptory challenge, properly used, is an extremely useful tool for a trial advocate who wishes to exclude a venireperson for reasons which the advocate sincerely, and perhaps inarticulately, believes will best serve the interests of his or her client. On the other hand, the right to exercise peremptory challenges, although deeply rooted in our history, is not a “constitutionally protected fundamental right; rather [it is] a state-created means to the constitutional end of an impartial jury and a fair trial.” J.E.B., — U.S. at — n. 7, 114 S.Ct. at 1426 n. 7, 128 L.Ed.2d at 102 n. 7, quoting Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33, 50 (1992). Our decision should not be viewed as a lowering of the standard of substantial deference to be afforded a trial court’s determination of whether purposeful discrimination exists. To the contrary, the primary responsibility for this essential finding of fact must remain with the trial judge, who is most able to pass on the credibility of the litigants, along with the race-neutrality of the litigants’ explanations for exercising peremptory challenges to exclude a suspect group, once a prima facie case of discriminatory intent is made out. It is the trial court’s responsibility to provide proper guidance to litigants with respect to the showing necessary for a prima facie case of discriminatory intent. Once a prima facie case is made out and the burden of production has shifted, it is the trial court’s responsibility to require correspondingly thorough and legitimate responses from the prosecution. In light of the explanations offered, and under the totality of the circumstances, it is then the trial court’s ultimate responsibility to determine whether a defendant may prevail in carrying his burden of proving that discriminatory intent is, in fact, purposeful discrimination. If these steps are followed, appellate review of alleged Batson violations will become less frequent and less painstakingly detailed. See Jackson, 386 Pa.Super. at 51-52, 562 A.2d at 349. In this case, we concur with the trial court’s conclusion that a prima face case of discriminatory intent to exclude venireper-sons of Italian descent existed. Once the trial court made this determination, we concur that it was proper to require the prosecutor to make a record of his reasons for exercising peremptory challenges against individuals of Italian descent. The burden having shifted to the prosecutor to rebut the inference of intentional discrimination, he was then required to provide ethnically neutral reasons for each peremptory exclusion of a juror that was of apparent, or conceded, Italian descent. The failure of the prosecutor to advance an ethnically neutral reason for striking prospective juror Vincent G. is alone sufficient to find he failed to carry his burden of production, “and the resulting verdict was thereby ‘tainted.’ ” Dinwiddie, 529 Pa. at 72, 601 A.2d at 1219. When the prosecutor blatantly admitted that the ethnicity of this juror was a reason for his exclusion, it was clear error to permit the juror’s exclusion, or, in the alternative, not to grant defense’s motion to strike the panel. To summarize, of the seven peremptory challenges exercised against venirepersons of apparent or conceded Italian descent, the record contains no explanation for three, and as to one, the proposed juror’s ethnic background was clearly stated as a reason for exclusion by the prosecutor. When the next juror of Italian descent was excluded for a facially neutral reason, i.e., her place of residence, while two proposed jurors who resided in the same area, but were not of Italian descent, were accepted, at the very least, the trial court erred in not conducting a “step-three” analysis to determine if the reason for the exclusion was, in fact, pretextual. This practice offended appellant’s right to a jury selection process free of discrimination, as well as the rights of the individuals, called upon to serve their community without regard to their ethnic heritage, who were excluded. Judgment of sentence vacated. Case remanded for a new trial. Jurisdiction relinquished. . Because we conclude that appellant is entitled to a new trial on his Batson claim, we need not reach the issue of prosecutorial misconduct. With respect to appellant’s multiple claims that the trial court erred in admitting inadmissible or prejudicial evidence at trial, a thorough review of the record and briefs submitted discloses no error. We adopt the reasoning of the trial court, as set forth in its opinion at pages 14-19. . One of the venirepersons allegedly subjected to the prosecutor’s discriminatory exclusion, Jane C., was in fact challenged by the defense. However, appellant also failed to include in his list a peremptory challenge exercised by the prosecutor to exclude venireperson Linda G. Appellant’s counsel made a Batson objection to this challenge on the record. . Although a matter of public record, the nature and content of several side-bar discussions held in this case lead us to conclude that the privacy interests of the venirepersons involved are best served by using initials rather than full last names. . In its opinion, the trial court conducts a post hoc evaluation of the record and concludes at page 13 that appellant failed “to establish a pri-ma facie case of a Batson violation.” However, the appropriate time for a determination with respect to whether a prima facie case is established, as occurred here, is during voir dire when the defendant objects to the prosecutor's challenges. . We note that appellee contends on appeal that despite the fact that reasons for striking the first venireperson, Cathy R., are not apparent on the face of the record, she was "apparently struck because of her youth, since all of the jurors selected were older." We reject this attempt at speculative, post hoc justification de hors the record. See note 9, infra. . Because the issue in this case concerns the ethnicity of prospective jurors, we quote the prosecutor’s explanation for excluding this particular juror only for the purpose of demonstrating that it did not apparently involve his ethnicity- . Defense counsel immediately moved to strike the panel. The trial court denied the motion without discussion, and appellant proceeded to trial. . In Commonwealth v. Horne, 535 Pa. 406, 635 A.2d 1033 (1994), three justices of our Supreme Court concluded that once a prima facie case of discriminatory intent is established, the prosecutor must either advance a totally neutral reason for his peremptory challenges, or, if an exclusion would have a racially disparate effect, demonstrate how that particular juror entertains the alleged bias. Id., 535 Pa. at 411 n. 1, 635 A.2d at 1035 n. 1. . It would be the height of inconsistency to accord "substantial deference” to a trial court's factual findings when they happen, post hoc, to concur with the Commonwealth’s position, while ignoring factual findings made at the more relevant time, during voir dire. The fact is, the trial court disallowed the prosecutor's justification for excluding Susan B. at the time the peremptory challenge was exercised. We fail to see how an explanation unequivocally rejected at the time offered, becomes ethnically neutral in hindsight, or “after careful review.” Absent evidence of clear error, and consistent with the appropriate standard of review, we defer to the trial court's determination at the time it was made. . The United States Supreme Court, in a per curiam opinion, recently addressed the burden of proof required of a party alleging a Batson violation in Purkett v. Elem, — U.S. —, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Our resolution in the instant case is consistent with the Court’s determination that "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Id., — U.S. at —, 115 S.Ct. at 1771, 131 L.Ed.2d at —. In appellant's case, the prosecutor failed, after a prima facie case was made out, to satisfy the burden of production "of articulating a nondiscriminatory reason for the strike.” Id. The prosecutor, having advanced an explanation that was obviously not ethnically neutral, relieved the trial court of any need to proceed to step three, where an evaluation of facially neutral explanations for hidden pretext occurs. . Just as our review is hampered by the trial court's failure to require the prosecutor to proffer legitimate, ethnically neutral reasons for striking the first three venirepersons of apparent Italian descent, so is any argument appellee might advance to rebut the presumption of purposeful discrimination.

TAMILIA, Judge: John Williams a/k/a Wayne Jacobs appeals from the July 27, 1994 judgment of sentence imposing a term of three and one-half (3 — %) to seven (7) years’ imprisonment. The sentence followed a determination that appellant had violated his probation. An annotated review of appellant’s extensive criminal history reveals the following. On February 15, 1990, appellant pled guilty to attempted theft by unlawful taking and was sentenced to eleven and one-half (11K) to twenty-three (23) months’ imprisonment and to a consecutive term of three (3) years’ probation. Appellant served the minimum sentence and was released on parole. Subsequently, on April 27, 1992, appellant was adjudicated in violation of his parole as a result of convictions for new crimes. Appellant’s parole was revoked, he served the remainder of the 23 months under the original sentence, and his probation was continued. On July 27, 1994, appellant’s probation was revoked following his conviction for involuntary manslaughter. Appellant was then sentenced to 3K to 7 years’ imprisonment, the maximum sentence allowable for appellant’s February 15,1990 plea of guilty to attempted theft by unlawful taking, a third degree felony. 18 Pa.C.S. § 1103(3). Appellant was allowed credit only for the time served on the violation of probation detainer and not for the cumulative 23 months which he had already served for the original offense. It is the failure to credit appellant with the 23 months already served which is the basis of his appeal. Our scope of review on appeal from the judgment of sentence imposed following a probation revocation “is limited to the validity of the revocation proceedings and the legality of the final judgment of sentence.” Commonwealth v. Beasley, 391 Pa.Super. 287, 570 A.2d 1336 (1990). Initially, we note that the trial court considered appellant’s basis of appeal waived by his failure to raise it at the July 27, 1994 hearing. However, a challenge to the legality of a sentence is nonwaivable and may be considered sua sponte by our Court. Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994); Commonwealth v. Hollawell, 413 Pa.Super. 42, 604 A.2d 723 (1992). The Legislature has established the manner by which credit for time served is to be computed. Specifically, 42 Pa.C.S. § 9760 provides: § 9760. Credit for time served After reviewing the information submitted under section 937 (relating to report of outstanding charges and sentences) the court shall give credit as follows: (1) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody as a result of the criminal charge for which a prison sentence is imposed or as a result of the conduct on which such a charge is based. Credit shall include credit for time spent in custody prior to trial, during trial, pending sentence, and pending the resolution of an appeal. (2) Credit against the maximum term and any minimum term shall be given to the defendant for all time spent in custody under a prior sentence if he is later repro-secuted and resentenced for the same offense or for another offense based on the same act or acts. This shall include credit in accordance with paragraph (1) of this section for all time spent in custody as a result of both the original charge and any subsequent charge for the same offense or for another offense based on the same act or acts. According to appellant, this section requires that the 23 months he served on the unlawful taking sentence should be credited against the 3jé to 7 year term imposed on July 27, 1994. We are constrained to agree. Pursuant to section 9760(1), “the criminal charge for which a prison sentence [was] imposed” was the charge of attempted theft by unlawful taking, to which appellant pled guilty on February 15, 1990. Thereafter, he served 11 % months pursuant to the February 15, 1990 adjudication and another 11^ months, the balance of the original sentence, pursuant to the adjudication of April 27, 1992. These sentences were both served on the underlying attempted theft offense. Likewise, the 3% to 7 year term imposed on July 27, 1994 was the maximum sentence allowed by law for that offense. Thus, if appellant is not credited with the 23 months already served, his sentence for attempted theft by unlawful taking would be 65 months (or 5 years and 5 months) to 107 months (or 8 years and 11 months). Clearly, this sentence is illegal. See 18 Pa.C.S. § 1103(3). Therefore, appellant must be credited with the 23 months already served. Also, as noted by the trial court at the July 27, 1994 hearing, appellant must be credited with the 8 months and 23 days he served on the probation violation detainer, from November 4, 1993 until July 27, 1994. In sum, the maximum sentence imposed on July 27, 1994 will be reduced by 31 months and 23 days making the new maximum sentence 52 months and 7 days. The new sentence, therefore, based on the fact the minimum term can be no greater than half the maximum, is 26 to 52 months. In accordance with this Opinion, the judgment of sentence is vacated and the case is remanded for imposition of the revised sentence of 26 to 52 months. Jurisdiction relinquished. . The record reveals that appellant, under various alias, has been arrested in excess of 50 times, has 25 convictions and 18 parole or probation violations.

Opinion by Mu. Justice Williams, The facts to be considered in the determination of this appeal appear in the auditor’s report, which was concurred in and confirmed by the orphans’ court. From, this report we learn that George Probst died testate in February, 1885, leaving a large estate. He left three half-sisters to survive him, Christiana Knauss, Catharine Seip and Lydia Probst. By his will he gave his estate to certain of his collateral relatives excluding his half-sisters, and other relatives, from any share whatever therein. Those who had been excluded, or some of them, determined to contest the validity of the will; and for these Nathan Seip, the husband of Catharine, appears to have acted as agent. He consulted with and retained counsel, and took general charge of the preparation and conduct of the proceedings. An issue devisavit vel non was framed 'in which Mrs. Knauss and Mrs. Seip were named as plaintiffs,- and in which Lydia Probst was named as one of the defendants. This was upon'the, list for trial and in a position to be reached in a few days when it was settled upon the payment of ten thousand dollars to the attorneys for the contestants. The question now raised is to whom did the money paid by the proponent belong? Lydia Probst alleges that she was entitled to share with her sisters in it, and they now claim the whole. This controversy was referred to an auditor who sustained the contention of the accountant that Lydia Probst was not entitled to share in the money obtained by the settlement. It should be remembered that the three sisters stood in the .-same position. They had certain rights under the intestate laws that the- will denied. If the estate of George Probst was to be distributed under his will, they were all alike excluded. If the will was set aside they would be admitted on exactly the same terms regardless of their apparent position on the record as parties to the issue, and of their contribution to the expenses of the contest. But the auditor and the court below held that the right of Lydia Probst to a share with her sisters de •pended on the answers to two questions: First, was she “an active contestant on record with Mrs. Seip and Mrs. Knauss ? Second, did she contribute towards the expenses in carrying on the contest with the understanding that she should share .in the proceeds realized? ” The evidence relied upon to show that she was a contestant, and had promised to contribute to the expenses consisted of the testimony of John Rupp, Esq., one of the counsel for the contestants, and the declarations of Nathan Seip, now deceased, made while the contest was being carried on and' while it was in process of settlement. The -testimony of Mr. Rupp was excluded because of his confidential relations to Mrs. Seip and Mrs. Knauss. The declarations of Nathan Seip were excluded because he was the husband of the decedent whose estate is now for distribution. The whole of the evidence relating to the questions stated by the auditor being thus taken out of the case, the questions were decided against Lydia Probst, and the two sisters were allowed to retain the share of the third in the money realized from the settlement of the issue devisavit vel non. Was John Rupp properly excluded on the ground of privilege? He is an attorney at law and was employed as counsel for the contestants. If the issue had been on trial and the proponent had undertaken to examine him about what Blackstone calls “ the secrets of the cause,” which had been communicated to him by his clients, it is clear that the clients could have objected, and relied on the fact that communications made by them to their counsel, relating to the cause, were privileged. But this was not a controversy between the contestants and their adversaries. It was a controversy among themselves. Here were three sisters standing in the same relation to the testator, and having the same interest in defeating his will. Two of them appeared as plaintiffs, and the other as one of the defendants, in the issue. Neither of them appears to have consulted counsel personally, but Nathan Seip, the husband of one of them, did all that was done on behalf of the contestants. Whom did he represent? For whom did Mr. Rupp appear ? This is the present question. It is a search, not after some communication by client to counsel, but after a fact that could be inquired into on the trial of the issue if such trial had been reached. It could have been settled in advance by a rule on counsel to file a warrant of attorney, and this at the instance of the adverse party. It is the fact of employment that creates the confidential relation. Until this relation exists there can be no privileged communication. The mere fact of employment is not privileged, but, from the nature of the relation between client and counsel, it is open to inquiry in any court in which the counsel appears as such. So, for a very obvious reason, the fact of a settlement between litigants, and the terms upon which it was made, are open to inquiry. An attorney who assisted in adjusting the terms of such settlement is a competent witness to show what the terms were: Schubkagel v. Dierstein, 131 Pa. 46. If an attorney represents two or more persons he may be called as a witness in a controversy between them, and statements made to him by one of them in the presence of the others will not be treated as confidential or privileged communications: Goodwin Gas Stove and Meter Company’s Appeal, 117 Pa. 514. And generally, where several persons employ the same attorney in the same business, as for example to contest a will, communications made by them in relation to such business, while privileged as to their common adversary, are not privileged inter sese: Jackson v. French, 3 Wendell, 337; 19 Am. and Eng. Ency. of Law, page 139 and note. All have a property in confidential communications made under such circumstances. One cannot waive the privilege for his co-suitor nor enforce it against him: Beltshover v. Blackstock, 3 Watts, 20. In this case three sisters had a common interest in defeating their half-brother’s will. A contest was entered upon. All of them were parties to it. Their position on the record was just what Nathan Seip chose to make it. This contest was settled by him, acting for those interested, for the sum of ten thousand dollars. The question now raised is to whom did this money belong ? Not to Nathan Seip, for he could not have taken under the intestate laws as an heir of George Probst. It must go, says the learned auditor, to those whom Seip represented, and for whom Mr. Rupp appeared. To disclose their principals both Rupp and Seip are competent, and no one of the parties can successfully interpose the objection of privilege. But Seip is now dead, and his declarations made to Mr. Rupp showing for whom he acted in making the contest are objected to on the ground that he is not competent to testify, against his wife. But the declarations' relate only to his own conduct and are explanar toiy of it. They involve no breach of. domestic confidence; they relate to no act or contract of his. wife ; they fix .no liability upon her estate. He acted as the agent for his wife, but not for her alone. For whom else did he undertake to act ? Who were his principals in the litigation he began, carried on, and finally settled ? The auditor finds that he was the agent of Mrs. Knauss as well as of his wife ; and in his twelfth finding of fact he says : “ That during the progress of the George Probst will contest, and at the time the settlement was consummated and the money paid to the counsel of contestants, Nathan Seip attended to the business affairs of Lydia Probst, the claimant, receiving money for her and paying bills.” In other wor.ds he was the business agent of Lydia Probst in general charge of her affairs. . We can see no way by which the auditor reached the conclusion that he was not her agent in the-management of the contest over the will also, except by rejecting the testimony of Mr. Rupp and the declarations of Seip, and then holding as matter of law that a compromise which affected the rights of Lydia Probst gave her -no interest in the sum received. We hold that the rejected testimony was competent so far as it was offered to show for whom Seip acted as agent, and for whom Rupp appeared as counsel. This disposes of the questions really rqised on this record, but before dismissing the case it may be well to suggest another. Is it true, as the auditor seems to assume, that the money received upon the compromise-of a controversy like this belongs only to those who appear as active contestants and contribute money towards the--employment of counsel? The statute provides that any person interested may file a caveat, but it is well settled that thereafter the-proceedings are not strictly between the parties, but are in the-nature of a proceeding in rem; and a decree when made is. conclusive on all the world: Ottinger v. Ottinger, 17 S. & R. 142. For this reason it is the duty of the court to see that all persons interested are brought in before a decree is made Miller’s Appeal, 159 Pa. 562. If this is not done, or if a compromise is effected without notice to any of those interested,, and a verdict taken in favor of the will in pursuance of such 'compromise, the verdict will be set aside on application of the omitted or neglected party, Hambleton v. Yocum, 108 Pa. 304; or the omitted party may take another appeal if the time allowed has not elapsed: Miller’s Appeal, supra. From this it results that no contestant can compromise anything beyond his or her -own personal interest in the contest, and can be entitled to no more than his or her distributive share in a sum received by way of general compromise. This was said in substance by the late Justice Gordon in the opinion delivered in Hambleton v. Yocum, supra, and seems to result necessarily from the nature of the proceeding. The interest of Lydia Probst was identical with that of Mrs. Seip and Mrs. Knauss. 'For what reason she was put upon the record as a codefendant with the proponent of the will that disinherited her, it is probable that no one since the 'death of Seip can tell. But wherever her agent placed her on the record, her interest was identical with that of her sisters. She had the same light to appeal from the decree of probate, and. the same motive for doing so. There could have been no settlement made without her consent given personally or through her agent.- Her acquiescence in its terms was-a surrender of her right to contest the will, and her distributive share of the net results of the compromise stood to her in place of her right to contest. In such case the law would presume her joinder with her sisters in the compromise to have been upon the same terms and conditions assented to by them, and that the sum received was to be divided in-conformity with the intestate laws. This would shift the burden of proof and impose on her sisters the duty of showing some contract, release or state of facts, sufficient to rebut the legal presumption and strip her of her rights as “a person interested” in-the estate of her half-brother. The decree appealed from is reversed, the record remitted, and a procedendo awarded.

Opinion by Mr. Justice McCollum, All the equities of the case are with the defendants, and in accord with the judgment appealed from. In the negotiations which resulted in the contract under which the goods were delivered the defendants were not acting for themselves or a general partnership but for The Scranton Match Company, Limited, an association organized under the act of June 2,1874, and its supplements. The plaintiffs, through their agent, knew the nature of the association, what had -been done in the way of organizing it, what its capital was and the measure of the liability of its members. The statutes under which it was formed and the articles on which it was founded were read and explained to him, and his knowledge was theirs. With this information, the correctness of which is not disputed, they dealt with and furnished their goods to and on the credit of ■ the association, and not until it passed into the hands of liquidating trustees in consequence of losses in business and the destruction of its plant by fire, did they claim that the defendants''as individuals- or general partners were liable for the goods so sold and delivered. It was shown on the trial and found by the referee that the defendants paid their subscriptions to the capital stock of the association, and it is not alleged that its insolvency was the result of fraud or mismanagement. The plaintiffs’ contention is, therefore, not only opposed to the terms of the contract and the understanding between them and the defendants when it was made and the goods were furnished under it, but to the equities of the case. It is a contention based upon a technicality which depends on their construction of the act of 1874. It appears that the articles of association were not recorded when the order of December 14, 1886, was made or when it was changed on the 29th of March, 1887, but it is beyond dispute that they were duly recorded sometime before the goods were delivered, and before the contract under which the deliveries were made became absolute and binding upon the match company by its approval of the samples. But the plaintiffs contend that the defendants are precluded by their admission on the trial from alleging that the deliveries were made under the modified or new orders. We do not think the admission is entitled to the effect now claimed for it. It related to .exhibit “ C ” and was manifestly made to dispense with the production of the plaintiffs’ books of original entries. That it was not intended to set aside the agreement of March 29th or to deny to the same its legitimate effect upon the issue is obvious from the proceedings on the trial and the statements of counsel in their paper-books. The learned counsel for the plaintiffs, referring to this agreement in their history of the case, said: “ All the boxes and goods delivered for which this suit is brought were furnished under the orders of December 14, 1886, as modified so far as price and quality of a portion of the material were concerned. By the arrangements of March 28th or 29th, the plaintiffs went on and filled the orders as fast as the defendants desired it, until the 2d of June, 1888.” These orders were mere proposals subject to the approval of the plaintiffs and to the approval of the match company of the proofs and samples of the goods. Strictly speaking there was no contract until these approvals were given, as they were in the nature of conditions precedent to its existence. The original orders were changed on the 29th of March by the maker, and approvers of them, and if at any time there was a binding and absolute contract in conformity with them it was avoided by the agreement then made. Whether the orders, recognized and acted upon after this agreement, are called new or modified orders, is of no consequence. Surely the ' approval of them and the samples furnished under them constituted a contract inconsistent with any contract arising from the approval of the original orders and the proofs submitted in pursuance of them. The samples furnished by the plaintiffs under the new or modified orders were approved by the association on the 26th of May, 1887, and thenceforth there' was ail absolute contract between the parties on the basis of these orders by which alone their rights and obligations in respect to the subject-matter of it were measured. It was a contract between the plaintiffs and The Scranton Matcli Company, Limited. Did the failure of the company to record the articles before the commencement of the negotiations which culminated in the contract after they were recorded render its members liable as individuals or general partners for the goods delivered to it? We think not. It is the status of the association when the contract was made that must be considered in answering this question, and it is admitted that when it approved the samples furnished under the new orders it was qualified to enter into contracts in connection with and for the proper prosecution of the business for which it was organized. These views are in harmony with the learned referee’s findings of fact and conclusions of law. We have not deemed it necessary to notice seriatim the numerous specifications of error filed in the case although we have examined and considered all of them, together with the argument of the learned counsel in support of them. It is sufficient to say that we discover nothing in the specifications which in our opinion calls for or would justify a reversal of the judgment. They are accordingly overruled and the judgment is affirmed.

Per Curiam, An examination of this somewhat voluminous record has not-convinced us that either of the specifications of error should be sustained. The testimony bearing on the questions of fact, involved in the issue, was sufficient to justify the learned trial judge in submitting the case to the jury. There was therefore-no error in refusing to charge as requested in appellant’s tenth point, that under all the evidence the verdict must be in her favor. Nor do we think that upon the whole case there was any error in entering the decree complained of in the last specification. Decree affirmed and appeal dismissed with costs to be paid by appellant.

Opinion by Mb. Justice Dean, A. Taylor Hoopes of Chester county died May 10, 1892. On May 16th, six days afterwards, E. Malin Hoopes and Thomas W. Pierce, the relators, presented to Frank A. Thomas, Register of wills, a writing, purporting to be the last will of A. Taylor Hoopes, for probate. The 'will was proven by the subscribing witnesses, and letters testamentary were issued to E. Malin Hoopes and Thomas W. Pierce. This will was dated May 17, 1888. On July 6, 1892, Caleb H. Bradley presented a petition to the Register, averring that there had come into the hands of said executors, among the papers of the testator, another, later, and different will than the one dated May 17, 1888 ; that to this second writing, although dated in the bodj’- of it January 27, 1888, a date preceding that of the one already proven, was appended a codicil dated August 15, 1891, a date long subsequent to May 17, 1888, the date of the first one. He further alleged, this second will was in the possession of the executors. Thereupon, in answer to a citation of the Register, the executors produced this alleged later will. Caleb H. Bradley, the executor, then asked that the probate of the first will be vacated, and the later one be, by proper proof, admitted to registry. The application was entertained by the Register, and evidence taken for and against both wills by the parties interested. After due consideration of this evidence, the Register certified to the orphans’ court these interrogatories : ■ 1. Had the Register power to revoke the letters granted on the first will ? 2. Should the probate of the first will be annulled, and the letters revoked? 8. Is the writing dated 27th January, 1888, with the codicil appended, dated 15th of August, 1891, the last will of testator? . When the case came on for hearing in the orphans’ court, the executors of the first will objected to the court taking jurisdiction on the certification, averring that the Register had no jurisdiction, such’as he had taken on the application to vacate, and that the questions in dispute could •onlj'- legally reach the orphans’ court by appeal from the decree probating the first will. The orphans’ court was of opinion that the case should have come before it, not by a certificate from the Register, but by appeal from his decision on the application to vacate the decree admitting of record the first will, and formally overruled the objections to the jurisdiction of the Register. The parties in favor of the first will then asked the court to proceed with a hearing of the case on its merits, and to direct an issue to the common pleas to determine whether the writing alleged to be the last will, was in fact the last will of A. Taylor Hoopes. This the court refused, for the reason, that it had already decided the Register had jurisdiction of the dispute,-and he must dispose of it before the court could properly consider it. Caleb H. Bradlejq who represented the second will, then moved the court to send the proceedings back to the Register. In answer to this motion, the court ordered that the record be sent back to the Register, and, before proceeding further, that he give ten days’ notice to all parties of the hearing. Shorn this decree, the executors in the first will appealed to this court; we, being of opinion that the decree was only interlocutory, quashed the appeal [Hoopes’s Est., 152 Pa. 105]. The Register then proceeded with the hearing ordered by the orphans’ court. The executors of the first will, at this hearing, asked that a precept for an issue to determine the dispute be directed to the common pleas, which the Register refused. Then they asked that the orphans’ court deeide: 1. Whether the testator was of sound mind when he executed the codicil to the second will. 2. Whether the codicil was the free and intelligent act of testator, or was brought about by undue influence. 3. Whether the codicil was in fact executed by testator. ' The Register refused to call an orphans’ court to pass on these questions, because he had already sent them there for answer, and that com-t had sent them back t.o him for determination. He accordingly found from the evidence that the second writing claimed to be the last will, with the codicil of latest date, was the last will. In accord with this finding, he vacated the decree probating the first will, revoked the letters issued on it, admitted the second will to probate and registry, and issued letters thereon to Caleb H. Bradley, the executor named in it. From the action of the Register vacating the probate of the first will, and revoking the letters - testamentary thereon, the executors under that will appealed to the orphans’ court. They also applied to the court of common pleas for a writ of mandamus to the Register, commanding him to certify to the orphans’ court the questions which he had refused to decide, because he had already once certified them to that court. The court granted an alternative writ, to which the Register made answer, setting out in substance the facts as we have stated them, and showing further that his refusal to certify the questions raised by those in favor of the first will, necessarily entered into and formed part of the decree vacating the probate and revoking the letters, which had been appealed from. The court thereupon made a decree for a peremptory mandamus, from which decree the Register prosecutes this appeal. The right of the court to compel the Register to the performance of a ministerial or clerical act, necessary to the proper adjudication of a question to be tried in court, is undoubted. Nor is it for the subordinate officer or lower court to determine Avhether an act done or to be done by him is ministerial or judicial; that is a question for the higher court, wherein it must be judicially determined whether the writ shall or shall not issue. The learned judge of the court below properly decided that the act he commanded was not a judicial act involving the exercise of a discretion in the Register, and if the ease turned on this question, the decree Avould be affirmed without hesitation. But Ave think the learned judge, inadvertently perhaps, neglected to inquire whether the exigencies of this case called for the exercise of this extraordinary poAver. On the facts here, the Avrifc Avas not one of right on the part of the relators. Their right to have it issued, depended wholly on whether it Avas a necessary step to a proper adjudication of the dispute. If it accomplishes nothing of substance, aids not in the administration of justice, it is not a right. ■ Writs of this nature are not issued to gratify the whims of suitors. It is argued by appellees, “ That the right here claimed is granted to them by law. Whether it shall be invoked and enforced, depends not upon the Register, but upon them.” But this proposition needs qualification. The right is granted by law only when of value to him Avho asks it. High on Extraordinary Legal Remedies, 161, says: “ In all cases where full and ample remedy may he had, either by appeal, Avrifc of error, or otherwise, from tbe judgment, decree or order of tlie subordinate court, mandamus will not lie.” “ It folloAvs therefore, that those to Avhorn it may be appropriately directed, OAve some duty to the public, and are under obligation to perform it, and for the enforcement of which there is no other specific legal remedy:” Armstrong v. Commissioners of Allegheny, 37 Pa. 277. Gibson, C. J., in Com’lth v. Mitchell, 2 P. & W. 517, says: “It however involves an exercise of extraordinary power, which fits it for use only in extraordinary cases, where there Avould otherAvise be a failure of justice.” Lord Kenyon in King v. Bristow, 6 D. & E. 168, says: “ The best way of preserving this beneficial writ, is to be sparing in the use of it.” And the authorities are uniformly to the point that, unless there be a grievance Avhich cannot be otherwise- adequately remedied, the writ cannot be successful^ invoked. On the appeal to the orphans’ court, necessarily all the evidence taken before the register will be before it, and all the questions raised by the evidence will be passed upon. The decree of the Register was, that the decree of probate of the first will he vacated and annulled, and that the letters granted thereon be reA'oked, and that the second Avill is the last will of testator, and that therefore it be admitted to probate. From that decree, the executors of the first will appealed. It is not questioned that the first will is a will made by the testator. If the second be his will, then the first is not his last will, because the second, being of later date, revokes it. Whether the second is his will, depends on whether it was executed by him, whether it was procured, by undue influence, and whether he possessed testamentary capacity. If, for either reason, the will was not his last will and testament,'the appeal will be sustained, and the decree of the Register, admitting it to probate, will be wholly set aside. There being no other will, then, than the first, and that not being questioned on anjr ground except that it was revoked by the second, it will stand of record, already proven as his last will, for there will be no decree to the contrary. As every question necessarily comes before the orphans’ court on the appeal, the appellees have a complete and adequate remedy to which this mandamus cannot, in the least, contribute. Therefore the decree of the court below, for that reason and that alone, is reversed at costs of appellee.

Opinion by Mb. Justice Dean, The plaintiff was elected recorder of deeds for Allegheny county on November 4, 1890, and was sworn into office first Monday of January, 1891. For the first seven months of that year, the fees belonging to the county and received and earned by him, amounted to the sum of $84,587.25; deducting the amounts payable to his deputies and clerks, the balance in favor of the county was $19,902.50. The plaintiff claimed salary for the seven months, $5,833.33 £■, being seven twelfths of an annual salary of $10,000, under the general act of 1876 and supplement of 1883. The defendant demurred, averring that plaintiff’s salary was fixed by the act of 1871 at $4,000, and this was all he could claim at law. By the act of April 2, 1873, in addition to the salary allowed by the act of 1871, the recorder was entitled to fees in certain cases. The learned judge of the court below sustained the demurrer, and entered judgment for defendant, believing his decision was in accord with Bell v. Allegheny County, 149 Pa. 381. We do not think that case rules this one, and have given our reasons therefor in McCleary v. Allegheny Co., in an opinion-filed this day. [The preceding case.] Therefore, the judgment sustaining the demurrer is reversed at costs of appellee, and judgment is entered for plaintiff.

KELLY, Judge: In this appeal, we are called upon to determine whether the trial court properly granted appellee’s, Rodney Noll’s, motion in li-mine precluding the Commonwealth from utilizing as an expert witness an accident reconstruction expert who had originally been hired by appellee’s counsel to assist in the preparation of a possible civil lawsuit by appellee stemming from the same automobile accident which resulted in the criminal charges being brought against him. We affirm. The relevant facts and procedural history of this appeal are as follows: On November 9, 1993, at approximately 8:00 a.m., Mr. Noll was the operator of a pick-up truck involved in a collision with another vehicle on Frush Valley Road, Muhlenberg Township, Berks County. A passenger in the other vehicle was killed in the crash. Mr. Noll immediately consulted with an attorney, Peter Munsing, Esq., about filing a civil suit. Mr. Munsing hired William Bowes, an accident reconstruction expert, to assist in preparation for possible litigation. Mr. Bowes contacted the police who accompanied him on November 10,1993, to the site of the collision and [to] the salvage yard to view the vehicles. Mr. Noll decided, apparently as a result of Mr. Bowes’ finding, not to pursue a civil suit. The Commonwealth subsequently employed Mr. Bowes to investigate the incident. Corporal Thomas Dougherty of the Muh-lenberg Township Police Department filed a criminal complaint on February 4, 1994, charging Mr. Noll with homicide by vehicle, 75 Pa.C.S.A. § 3732, and three summary traffic violations. A preliminary hearing was conducted before District Justice Anthony F. Horning on March 8,1994. District Justice Horning bound all of the charges over for court. Mr. Bowes testified at the preliminary hearing as an expert witness on the Commonwealth’s behalf. Mr. Noll filed a Motion in Limine asking that the testimony of Mr. Bowes be precluded at trial. The Commonwealth has appealed the Order of the trial court granting the motion. (Trial Court Opinion at 1-20). On appeal, the Commonwealth raises the following issue for our review: WHETHER THE LOWER COURT ERRED IN GRANTING THE DEFENSE MOTION IN LIMINE PRECLUDING THE TESTIMONY OF THE COMMONWEALTH’S EXPERT WITNESS? (Commonwealth’s Brief at 3). At the outset, we review the scope and purpose of a motion in limine. A motion in limine is a pre-trial application before a trial court made outside the presence of a jury, requesting a ruling or order from the trial court prohibiting the “opposing counsel from referring to or offering into evidence matters so highly prejudicial to the moving party that curative instructions cannot alleviate an adverse effect on the jury. See Black’s Law Dictionary 914 (5th ed. 1979). See also Commonwealth v. Johnson, 399 Pa.Super. 266, 582 A.2d 336 (1990), appeal granted, 529 Pa. 617, 600 A.2d 534 (1991) (citing L. Packel & A.B. Poulin, Pennsylvania Evidence § 103.3 (1987)). The purpose of a motion in limine is two fold: 1) to provide the trial court with a pre-trial opportunity to weigh carefully and consider potentially prejudicial and harmful evidence; and 2) to preclude evidence from ever reaching a jury that may prove to be so prejudicial that no instruction could cure the harm to the defendant, thus reducing the possibility that prejudicial error could occur at trial which would force the trial court to either declare a mistrial in the middle of the case or grant a new trial at its conclusion. 75 Am. Jur.2d § 94 & § 98. Further, a ruling on a pre-trial motion in limine provides counsel with a basis upon which to structure trial strategy. Blumenkopf, The Motion in Limine: An Effective Procedural Device With No Matenal Downside Risks, 16 N.Eng.L.Rev. 171 (1981). The motion in limine is an effective procedural device with no material downside risk. Id. at 171-72. Once the court has pronounced its decision, the matter before it will proceed unless the Commonwealth elects to appeal an adverse ruling. Commonwealth v. Cohen, 529 Pa. 552, 557, 605 A.2d 1212, 1215 (1992). For purposes of appealability, the court’s ruling on a motion in limine is exactly the same as a pre-trial suppression order. Id. at 557, 605 A.2d at 1215. Thus, both a suppression order and a pre-trial motion in limine excluding evidence are immediately appealable by the Commonwealth. Id. at 557, 605 A.2d at 1215. Commonwealth v. Metzer, 430 Pa.Super. 217, 226-27, 634 A.2d 228, 232-33 (1993). Evidentiary rulings are committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. Id. at 226, 634 A.2d at 232. It was within the discretion of the trial court to preclude the testimony of the Commonwealth’s accident reconstructionist, William Bowes, as Mr. Bowes had been retained by the defense to perform an investigation of the incident prior to his investigation for the Commonwealth. As the trial court stated, It would be patently unfair for the Commonwealth to base its reconstruction of the crash on information which its expert gathered while employed in the same capacity by Mr. Noll. There is no possible curative instruction in this situation. It would be impossible to point to particular portions of Mr. Bowes’ testimony which must be stricken or provide some general missive directing the jury to view the expert’s testimony with caution. In addition, there is no particular prejudice to the Commonwealth from this ruling. Competent accident reconstruction experts are plentiful. There was absolutely no need to employ as the Commonwealth’s expert someone who had previously investigated the accident for Mr. Noll. (Trial Court Opinion at 2-3). We agree. Furthermore, the information gathered by Mr. Noll should be protected by the attorney work product doctrine and the attorney-client privilege. The attorney-client privilege has long been a part of Anglo-American Law. Wigmore has traced the history of the attorney-client privilege, “back to the reign of Elizabeth I, where the privilege already appears as unquestioned.” The sanctity of communications between client and attorney had remained firmly established despite the preeminence since the late eighteenth century of “the judicial search for truth and its demand for every man’s evidence.” The attorney-client privilege has been part of Pennsylvania law since the founding of the Pennsylvania colony, and has been codified in our statutory law. See 42 Pa.C.S.A. § 5928. The attorney-client privilege is not waived where a client allows disclosure to an agent assisting the attorney in giving legal advice to the client. In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D.Pa.1992). Thus, where legal assistance is rendered by an agent of an attorney, communications are permanently protected from disclosure by the agent, the attorney, or the client, unless waived by the client. United States v. Kovel, 296 F.2d 918, 921-22 (2d Cir.1961). See also J. Wigmore supra, § 2301 at 583. As Mr. Bowes was an agent of Attorney Munsing hired to assist in providing legal advice to Mr. Noll, the attorney-client privilege was not waived. This privilege protects those disclosures that are necessary to obtain informed legal advice which might not have been made absent the privilege. In re Grand Jury Matter, 147 F.R.D. 82, 84 (E.D.Pa.1992). This privilege only applies where the client’s ultimate goal is legal advLe. Id. at 85. In the instant case, Mr. Bowes was retained by Attorney Munsing to investigate an incident in order to provide legal advice. Therefore, any information regarding Mr. Bowes investigation of the accident would be privileged. The attorney work product doctrine provides even broader protections than the attorney-client privilege. Id. at 86. It promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients. Id. at 86 (citing Hickman v. Taylor, 329 U.S. 495, 510-11, 67 S.Ct. 385, 393-94, 91 L.Ed. 451, 461 (1947)). As attorneys must often rely on the assistance of investigators and other agents in the compilation of materials necessary for trial, the doctrine protects materials prepared by agents for the attorney, as well as those prepared by the attorney himself. Id. at 87 (citing United States v. Nobles, 422 U.S. 225, 238-39, 95 S.Ct. 2160, 2170, 45 L.Ed.2d 141, 154 (1975)). It includes “interviews, statements, memoranda, correspondence, briefs, mental impressions [and] personal beliefs.” Id. (quoting Hickman v. Taylor, supra). The investigative findings of Mr. Bowes would be protected as he is an agent of Attorney Munsing and his inquiry was conducted with an eye toward litigation. Had the Commonwealth not hired Mr. Bowes to investigate this accident (subsequent to his investigation for Mr. Noll), the Commonwealth would not be able to call Mr. Bowes as a witness. We are also not persuaded by the Commonwealth’s argument that Commonwealth v. Porter, 524 Pa. 162, 569 A.2d 942 (1990) controls. In Commonwealth v. Porter, supra, the court found that the trial testimony of an expert, once employed by the defendant, was not prejudicial. This was because the testimony was cumulative and offered on rebuttal to corroborate the earlier testimony of a police expert, and to rehabilitate the testimony of another witness. Aside from the obvious procedural differences between that case and the instant case, the expert testimony in Commonwealth v. Porter, supra was not dispositive. It was cumulative, and only offered on rebuttal. In the instant case, the accident reconstructionist, Mr. Bowes, was the prosecution’s key witness. He accepted employment on behalf of the Commonwealth to investigate the accident after he had already investigated the accident for Mr. Noll. Based upon the foregoing, we hold that the Commonwealth’s claim that the trial court erred in granting the defense motion in li-mine precluding the testimony of the Commonwealth’s expert witness is without merit. Therefore, we affirm the order of the trial court granting the defense motion in limine precluding the testimony of the Commonwealth’s accident reconstructionist, William Bowes. Order affirmed. . Waldman, Beyond Upjohn: The Attorney-Client Privilege in the Corporation Context, 28 William and Mary Law Review 473-475 citing 8 J. Wigmore, Evidence in Trials at Common Law § 2290 at 542 (McNaughton rev. ed. 1961) (footnotes omitted). . J. Wigmore supra, §§ 2290 at 543. . In Commonwealth v. Porter, supra, an appeal was taken after judgment was entered and the appellant requested a new trial. In the instant case, a pre-trial motion was granted to eliminate any chance of prejudice to the defendant and to allow the Commonwealth to procure another expert prior to trial.

JOHNSON, Judge. On this appeal, we are asked to determine whether the Court of Common Pleas of Philadelphia, in relying upon Philadelphia Local Rule *212.2, erroneously imposed sanctions upon appellants. Because we have no record evidence that the trial court followed the procedures set forth in Rule *212.2, we reverse. The facts can be summarized as follows: Joseph and Elena Treu (the Treus) purchased a homeowner’s insurance policy from Harleysville Insurance Company (Harleys-ville). In July 1992, the Treus submitted a claim to Harleysville for damage to their home caused by a storm. Thereafter, the Treus brought suit against Harleysville, claiming that Harleysville refused to pay them and failed to cooperate in a good-faith manner with the adjustment of the claim. Harleysville contended that the damage to the Treus’ home was the result of long-term wear and deterioration, which was not covered under the policy. In January 1994, the case underwent arbitration, and the Treus were awarded a total of $13,426.30. Harleysville filed an appeal and demanded a jury trial. A trial was scheduled to begin on June 20, 1994. In his Opinion in this matter, the trial judge, the Honorable Albert F. Sabo, stated that he met with both parties prior to trial and conducted two settlement conferences at which he asked them for their positions regarding settlement. See Trial Court Opinion, dated November 21, 1994, at 2. Judge Sabo further stated that the Treus valued the case at $13,426, while Harleysville valued it at $1,000 and neither party would amend its demand. Id. As a result, Judge Sabo recommended that the parties agree to a bench trial to avoid court costs amounting to approximately $2,500 per day. Id. The judge also stated that he informed the parties that he “would impose Rule *212[.2] sanctions on the party demanding a jury trial if the verdict is less than 80% of the value placed on the case.” Id. Thereafter, Harleysville agreed to a bench trial, but the Treus demanded a jury trial. Following a seven-day trial, the jury found in favor of the Treus and awarded them $948.40. At the end of the tidal, Judge Sabo entered sanctions against the Treus in the amount of $17,500 relying upon Rule *212.2. See N.T., June 28, 1994, at 7. At that time, the Treus’ counsel requested argument on this matter, but the court refused to hear it. Id. at 7-8. On July 6, 1994, the Treus filed a Motion to Vacate Oral Sanctions Order Under Rule *212.2. Although he did not rule on this motion, Judge Sabo filed his trial work sheet on July 28, 1994, which contained the following: Jury verdict in favor of the [Treus] against [Harleysville] in the sum of $948.40. The court enters judgment against the [Treus] in the sum of $17,500 on behalf of the court as sanction for court costs under Rule [*]212.2. [Harleysville] is directed to pay the $948.40 to the court as costs to be deducted from the $17,500.00 due by the [Treus] to the court. The Treus now appeal. On appeal, the Treus argue that the trial court erred and/or abused its discretion when it (1) imposed a $17,500 sanction that was entered in violation of the express provisions of Rule *212.2; (2) failed to consider the factors required by Rule *212.2 prior to imposing sanctions; and (3) refused to allow a hearing regarding the sanctions. The Treus further argue that (4) their due process rights were violated when Rule *212.2 sanctions were imposed without observance of the rule’s procedures; and (5) Rule *212.2 is an unconstitutional burden on the right to a jury trial. In pertinent part, Philadelphia Local Rule *212.2 provides: Rule *212.2 Sanctions for Failure to Settle (B) In any action tried by a jury in which the sole relief sought is money damages, the trial judge on his or her own motion or on motion of any party may direct the attorneys for the parties to appear for a settlement conference. (D) If the trial judge determines that he or she can fairly evaluate the settlement value of the case, he or she shall recommend a settlement amount to the attorneys for the parties, and the recommendation with the parties’ agreement or non-agreement luith it shall be recorded and made a part of the case file. [Emphasis added.] (E) [I]f prior to the verdict the defendant has agreed to pay the amount recommended by the trial judge but the plaintiff has not agreed to accept that amount and the final judgment is at least twenty (20) percent less than the trial judge’s recommendation ... then the trial judge may, within ten (10) days after the final judgment, schedule a hearing to determine whether or not any sanctions shall be ordered against the party who had refused to settle. (I) In the event the trial judge determines that sanctions shall be ordered against the party who refused to settle, he or she may order the party to pay to the County of Philadelphia all or part of the reasonable costs incurred as a result of the party’s refusal to settle.... First, we observe that the contentions raised by the Treus necessitate a review of the transcript of the settlement conference to determine if the judge did, indeed, follow the procedures set forth in Rule *212.2. “[I]t is black letter law in this jurisdiction that an appellate court cannot consider anything which is not a part of the record in the case.” Smith v. Smith, 431 Pa.Super. 588, 591, 637 A.2d 622, 623 (1993), citing McCaffrey v. Pittsburgh Athletic Assoc., 448 Pa. 151, 293 A.2d 51 (1972). Here, Judge Sabo described what oceuiTed during the settlement conference. However, we cannot accept a trial court’s assertions in its 1925 Opinion as an accurate portrayal of what transpired at a conference or in a trial without having a transcript of the proceedings in the certified record. See Commonwealth v. Young, 456 Pa. 102, 115-16, 317 A.2d 258, 264-65 (1974); Hatalowich v. Bednarski, 315 Pa.Super. 303, 306, 461 A.2d 1292, 1294 (1983) (“a fact cannot become of record by virtue of its inclusion in the trial court opinion”); Commonwealth v. Ingber, 516 Pa. 2, 8 n. 3, 531 A.2d 1101, 1103-04 n. 3 (1987). Furthermore, there is nothing in the certified record to show that a settlement conference ever took place. As a result, there is no indication that Judge Sabo recommended a settlement amount to the parties’ attorneys, and such a recommendation was never recorded and made a part of the case file as required by Rule *212.2(D). On this basis alone, we must reverse the order that imposed a sanction on the Treus. Moreover, Judge Sabo’s error was compounded by his failure to comply with the requirements of Rule *212.2(E). The judge imposed a $17,500 sanction upon the Treus. However, under subsection E, if the final judgment is at least 20% less than the trial judge’s recommendation, the judge may schedule a hearing to determine whether sanctions shall be ordered. Accordingly, because Judge Sabo never recommended a settlement amount, he could not determine whether the final judgment was at least 20% of that amount. Further, even if the final judgment was at least 20% less than the recommendation, the trial judge was not empowered to order sanctions at that time; rather, he had the discretion to schedule a hearing to determine whether sanctions should be imposed. Again, the order clearly must be reversed. In addition, we acknowledge that we are foreclosed from deciding issues not before us on appeal. Cf. Estep v. Estep, 508 Pa. 623, 500 A.2d 418 (1985) (Superior Court’s scope of appellate review is exceeded when issue is considered sua sponte); Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975) (same). However, we have serious reservations regarding a rule that gives a trial judge the power to enforce an order that includes monetary sanctions for failure to accept a settlement. In the present case, Judge Sabo ordered the Treus to pay the court $17,500 as a sanction under Rule *212.2. Article 5, § 10(c) of the Pennsylvania Constitution gives our supreme court exclusive power to establish rules of procedure for all state courts. While the supreme court can delegate certain supervisory and administrative powers under 42 Pa.C.S. § 1721, we have found nothing to support an assertion that it has granted to the common pleas courts the type of power which is manifest in Rule *212.2. We also believe that there is a potential for misuse or abuse of power in a rule that permits a trial court to impose sanctions where the money flows directly back to that authority. Further, Rule *212.2 purports to supplement Pa.R.C.P. 212. However, a review of both rules reveals that they are not related in any way. Thus, we would seriously doubt whether the trial court has the authority to seek to enforce such a rule. Because we have no record evidence that a settlement conference occurred or that the trial judge followed the procedures set forth in Philadelphia Local Rule *212.2, we reverse the order that imposed a $17,500 sanction upon the Treus for court costs pursuant to that rule. Order Reversed. McEWEN, J., concurs in the result.

Opinion by Mb. Justice Williams, The report of the master shows the facts important to a decision of this case very clearly. The house and lot in controversy appear to have been the separate property.of Mrs. Powel prior to the 4th day of October, 1892. On that day she and her husband made a verbal agreement for the sale of the property to their next door neighbor, Cockroft Thomas. For some reason which does not appear, her husband went on the following day to B. F. Teller & Bro. and authorized thém to make sale of the house and lot for eighteen thousand dollars. They found a purchaser, notified Mrs. Powel, and she signed a memorandum, approving the sale negotiated by them, which is dated on the 6th of October, 1892. On the 18th of the same month she and her husband completed the sale to Thomas by executing and delivering their deed, acknowledged in due form, to his daughter Susannah M. Heraty, for whose use he desired the property, and to whom he seems to have presented it as a gift. Maguire having refused to surrender or sell his interest under the bargain made by him with B. F. Teller & Bro., now seeks a decree for the specific execution by Mrs. Powel and her husband of the agreement made on their behalf by Teller & Bro., and that Susannah M. Heraty be adjudged a trustee of the title for his use and directed to convey, it to him. The Powels, with the same indifference to the rights of others manifested in the negotiations preliminary to the sale, have taken no defence, and a decree pro confesso has been entered against them ; but Mrs. Heraty denies that she is a trustee of the title for the plaintiff, and insists that she is entitled to hold it for herself. Upon 'this question two facts are conclusive: First. The contract made by her father and in execution of which the deed was delivered to Mrs. Heraty, was'the first in point of time. It was made on the 4th day of October. The contract, so far as it was authorized or ratified by her, between Teller and the plaintiff, was on the 6th. It is a maxim of equity that first in time is first in right. Thomas had a right, as between himself and his vendors, .to insist on his agreement as good against any and all persons acquiring rights subsequently to his own ; and Maguire was such a person. It is true that Mrs. Powel] was not legally bound by her contract with Thomas, but on the other hand she'was under no obligation, legal or moral, to^ -repudiate it. If she chose to recognize and -execute it she had a right to do so, and a court of equity will not deny to her this right. Second. Thomas, the purchaser, who paid the price of this property to Mrs. Powel and under whose direction the deed was made to Mrs. Heraty,- is the party to the contract which we are asked to hold void and he is a necessary party to this' bill for that reason. Mrs. Heraty did not buy from. Mrs. Powel. She is a donee of her father wrho did buy, and who paid the price ; and if that contract of purchase and the deed made in pursuance of it are to be adjudged fraudulent and void as against the plaintiff, then beyond all question the actual purchaser should be a party. . The plaintiff insists that he shows the first and only written contract of sale and that this contract is complete in every essential particular. This is true; but it was the privilege of Mrs. Powel to reply the fact that she had made an earlier contract of sale which, though not in writing, she felt bound to perform, and that she had accordingly done so. The rule in equity’ is that any circumstance that shows that a decree of specific execution,' even of a written agreement of sale, would 'be unfair or inequitable is sufficient to defeat the application: Br. Eq. Jurisprudence, 220. Mrs. Powel did not choose to state the facts, but they have been made to appear by the other defendants, and have been distinctly found by the master. Even if the evidence upon this subject was conflicting the finding by the master would, when approved by the court below, be regarded as settling the question: Kutz’s Appeal, 100 Pa. 75. But the evidence is not conflicting. There is no denial of the fact that the verbal contract with Thomas was made on the 4th of October. Whether Mrs. Powel was necessarily bound by her contract with the plaintiff it is not important now to inquire. She seems to have assumed her liability, and suffered a decree to be entered pro confesso against her. As she has made the specific execution of the agreement impossible by the performance of a prior contract of sale and the acknowledgment and delivering of a deed in pursuance thereof, her liability upon the second contract is for damages only, and these can be adjusted by the court belo'w under the judgment pro confesso. As to Susannah M. Heraty and M. P. Heraty, her husband, the decree is affirmed and the bill dismissed. Appellant to pay the<■ costs of this appeal. The record is remitted for proceedings under the decree pro confesso to ascertain the damages to which the plaintiff is entitled.

Opinion by Mr. Chief Justice Stebbett, This suit, against Harry P. Crowell and four others trading as the Crowell & Class Cold Storage Co., was brought to recover the principal, interest, etc., of a note for $2,500, at four months from September 5, 1893, made by said company to its own order and by it indorsed, etc. One of the defendants was not served. Two of the others filed no affidavit and judgment by default was taken against them. The remaining two — appellants in this case — filed an affidavit, which was adjudged insufficient, and judgment was accordingly entered against them. It is claimed that in so doing the court below erred. That question must be determined by the averments contained in the statement of claim and affidavit of defense. Without referring in detail to the former, it is sufficient to say that they present a clear prima facie case against the defendants; and, unless some good ground of defense is presented in appellants’ affidavit, there was no error in entering judgment against them for want of a sufficient affidavit of defense. While their affidavit contains a general denial of liability and undertakes to traverse or qualify some of plaintiff’s averments, it is not denied that for several years prior to giving the note in suit, appellants, Harry P. Crowell and Charles Class as co-partners, carried on the cold storage and general storage and warehouse business at their warehouse 50 and 52 North Delaware avenue, Philadelphia; that in the spring of 1892 they signed and presented to the governor a certificate of association and applied for a charter of incorporation as the Crowell & Class Cold Storage Company for the purpose of transacting the same general business at same warehouse. In that certificate, it appears that appellants each subscribed for six hundred and forty-seven shares of the stock of the proposed corporation, and their codefendants in this suit, Charles H. Newell, J. R. Gibb and Amos H. Evans, each subscribed for two shares of said stock. The business aforesaid was continued at same place from September 5,1893, to January 9,1894, and before and after these dates, in the name of the Crowell & Class Storage Company, but, notwithstanding letters patent were issued to the subscribers to said stock in April, 1892, the certificate of incorporation was not recorded in the office for recording deeds in the city and county of Philadelphia until November 14,1893, more than two months after the note in suit was given. In the statement it is averred among other things that the defendants, after making and indorsing the note in suit as aforesaid, caused it to he delivered to plaintiff bank by which the same was thereupon discounted for value, before maturity and before the recording of the certificate in said recorder’s office; that plaintiff bank became and was the holder of said note for value, before maturity and before the recording of said certificate, without knowledge or notice of any of the facts therein averred in reference to the presentation of said application to the governor of Pennsylvania for a proposed corporation, and without knowledge or notice of any attempt or intention on the part of the defendants to form themselves into a corporation. These and other material averments, in support of plaintiff’s claim, are either substantially admitted or not sufficiently traversed or denied in the affidavit of defense. In that part of their affidavit referring to the meeting of the board of directors of the proposed corporation on February 14, 1893, etc., appellants virtually admit that theretofore they were interested in the association both as shareholders and officeholders therein, and say: “ at said meeting these deponents having resigned their offices which they had previously held, their successors were duly elected,” and, on the following day, “ all their shares in the capital stock of said company were duly assigned on the books of the company to the purchasers, and from thenceforth neither of these deponents has had any interest in the said company or the capital stock thereof, or in its business, assets or profits. Circulars were issued and sent to all persons dealing with the concern, stating that these deponents had no further connection with said business.” It will be noted that this was nearly ten months after the certificate of association as previously averred “was duly approved, .... enrolled .... in the secretary’s office in Harrisburg, .... and letters patent were issued,” etc., and nine months before the certificate was recorded in the recorder’s office of the county in which the chief operations of the intended corporation were carried on. We find nothing in the affidavit of defense that can have the effect of relieving appellants and their associates from liability as partners to the plaintiff bank. It is not averred that any of the “ circulars,” alleged to have been “ issued and sent to all persons dealing with the concern,” were either sent to or received by the plaintiff, for it does not appear that plaintiff had any dealings with “ the concern ” prior to becoming the holder of the note in suit. The well settled rule is that notice of the dissolution of a partnership given in a newspaper, printed in the city or county where the partnership business is carried on, is of itself sufficient noticé to all persons who have not had previous dealings -with the partnership, so as to relieve a withdrawing partner from liability for debts subsequently contracted in the name of the firm without his consent express- or implied: Watkinson v. Bank of Pennsylvania, 4 Whart. 482; Robinson v. Floyd et al., 159 Pa. 165. There is no merit in the contention that the name of Crowell & Class Cold Storage Company, and the form in which the note is signed, etc., were sufficient to put the plaintiff bank upon inquiry, and that due prosecution of that inquiry would have disclosed the fact that the maker of the note was an incorporated association and not a partnership, and that appellants, who had previously been shareholders therein, had transferred their stock and withdrawn therefrom in February 1893. Such business names are perhaps as commonly used at present by unincorporated associations, partnerships and individuals as by corporations. The forms and methods of business corporations are frequently adopted by unincorporated associations, partner ships, etc., and their business conducted by a president, cashier, etc.: Scott’s Appeal, 159 Pa. 165. There is nothing in the case to justify the conclusion that plaintiff had notice express or implied that the maker of the note was a corporation: In fact, the final act necessary to complete the incorporation of the association was not performed until two months and nine days after the note was made and indorsed. As we have already seen, it is positively averred in the statement that plaintiff became the holder of the note for value without knowledge or notice of any attempt or intention on the part of the defendants to form themselves into a corporation. As to recording the certificate of incorporation, it was held in Guckert v. Hacke et al., 159 Pa. 303, that failure to record it, as required by the act, in the recorder’s office of the county where the association’s chief operations are to be carried on, will render the incorporators personally liable to persons who deal with the association without knowledge of the incorporation. As was there said, “ One of the purposes of the act being exemption from personal liability in the transation of business, it was obviously material that the public should have notice, and notice by record was accordingly prescribed. Failure to record was failure to comply with one of the express conditions of incorporation and consequently of exemption from liability.” Our purpose is to adhere to that position. Without further elaboration, we are satisfied the learned court was right in holding that the affidavit of defense was insufficient. Judgment affirmed.

Opinion by Mr. Justice Dean, The Pennsylvania and Cumberland Yalley Railroads, the first extending east and west and the second south, had for years prior to 1882 maintained a connection at Harrisburg for the interchange of freight and passenger traffic. From Carlisle, a point on the Cumberland Yalley Railroad eighteen miles southwest of Harrisburg, the South Mountain Railway & Mining Company operated a railroad for eighteen miles to Pine Grove, hr a southeasterly direction; this road had a connection and interchanged traffic with the Cumberland Valley. In 1882, the Gettysburg & Harrisburg Railroad was incorporated to be built from Hunter’s Run, a point on the South Mountain Railway about ten miles from Carlisle, to the town of Gettysburg in Adams county, a distance of about twenty-one miles. This last company needed funds to build, and thereupon all four roads named, on 30th of September, 1882, entered into an agreement by which it was covenanted, they would, to promote their mutual interests, interchange traffic and cars on their respective roads; would sell through coupon tickets for passengers ; make through bills of lading for freight; and the joint earnings of the business coming from and going over the Harrisburg & Gettysburg road should be apportioned among the respective parties on a mileage basis thereafter to be agreed upon, and the •whole connecting system of the four roads should be operated in harmony in the development of traffic ; the South Mountain and Harrisburg and Gettysburg at the same time covenanting they would, so far as they lawfully could, send traffic to destination over the lines of tibe Cumberland Valley and Pennsylvania Railroads. In consideration thereof, these two last named roads covenanted to set apart fifteen per cent of the gross receipts of freight and passenger traffic to and from any points upon the South Mountain and Gettysburg and Harrisburg roads to and from any points on the Cumberland Valley and Pennsylvania roads, and pay the same to the trustee in a mortgage of $250,000 to secure bonds to be issued on such mortgage on the Gettysburg & Harrisburg Railroad, the bonds to be payable in thirty years with interest at six per cent, the trustee to appropriate the fund thus raised annually in the purchase of the bonds; it was further agreed the trustee should attach to each bond a memorandum of this provision of the agreement. The bonds were soon after all sold at par, and the road completed to Gettysburg in April, 1884. A prosperous business was built up; the Cumberland Valley paid, of the fifteen per cent set apart by it in the purchase of bonds in the first five years after the road was opened, $18,000, and the Pennsylvania, $19,000. In May, 1891, the Philadelphia, & Reading Railroad purchased a controlling interest in the stock of the Gettysburg & Harrisburg road, and all of the stock of the South Mountain, immediately after, the boards of directors in each company were changed, and officers and employees of the Reading were put in their places, and the two roads consolidated under the name of the Gettysburg & Harrisburg Railway Company. About the same time, the Hunter’s Run & Slate Belt Railroad was incorporated to build a road from Pine Grove, the southern terminus of the South Mountain, to the slate quarries, a distance of about five miles; then, a traffic contract for the term of nine hundred and ninety-nine years was made between the different companies, and such leases made as were deemed desirable, with the stipulation that all traffic was to be sent to destination by the Reading and lines controlled or operated by its connections. At the date of these contracts, the contract with the Cumberland Valley and Pennsylvania of 80th of September, 1882, was known to all parties. Soon after, by orders of the general manager of the Reading, the connection between trains running on the Cumberland Valley and Pennsylvania was broken, through, billing of freight and the sale of coupon tickets were stopped; the theretofore agreement for apportionment of receipts on a mileage basis was also disregarded; in fact, the business accruing to'the Cumberland Valley and Pennsylvania under their traffic contract was practically extinguished, as concerned them. Thereupon these two companies filed this bill setting out these facts and praying: 1. For a decree of specific performance of the contract as against the* Gettysburg & Harrisburg Railway Company into which the two contracting roads had been consolidated, and 2. For an injunction against the Philadelphia & Reading Company and its receivers in aid of such decree. The answers filed by defendants really leave nothing in dispute as to the material facts which must control the decree; the right to relief as prayed for is denied. The court below, after full hearing, decreed as follows: “ And now June 26, 1895, the court does order and decree that the Gettysburg & Harrisburg Railway Company shall observe and perform those covenants in the agreement between the Pennsylvania Railroad Company, the Cumberland Valley Railroad Company, the South Mountain Railway & Mining-Company and the Gettysburg & Harrisburg Railroad Company, dated September 80, 1882, and recited in paragraph 2 of the bill, which are to be performed by the third and fourth parties thereto, especially in the following matters, as to the performance of which we adjudge that breaches have been shown. “ Wherefor it is ordered and decreed that the Gettysburg & Harrisburg Railway Company shall do and perform as follows: “ First. It shall issue coupon tickets to passengers who shall travel from its line via the Cumberland Valley Railroad and the Pennsylvania Railroad, or either of them. “Second. It shall issue through bills of lading for freight which is shipped from its line via the Cumberland Valley Railroad and the Pennsylvania Railroad, or either of them. “ Third. It shall send to destination all traffic controlled by it, via the Cumberland Valley Railroad and the Pennsylvania Railroad, except traffic destined to points not reasonably accessible by those lines. “ Fourth. It shall receive and transport over its line, upon as favorable terms as it gives to any other railroad, all traffic inter changed by it with the Pennsylvania Railroad Company and the Cumberland Valley Railroad Company, or either of them. “ Fifth. It shall furnish its agents with rates on freight via the Cumberland Valley Railroad and the Pennsylvania Railroad, and shall not charge local rates to Carlisle on shipments routed via the Cumberland Valley Railroad so long as such rates are not charged to all other lines. “ Sixth. The cou'rt does further adjudge and decree that the Hunter’s Run & Slate Belt Railroad Company henceforth treat clause 5 (which is recited in the bill) of the lease and traffic contract of July 13, 1891, as inoperative, null and void in so far as it conflicts with the rights of the plaintiffs, under the agreement of September 30, 1882, and that it specifically perform the covenants of said agreement which are to be performed by the party of the third part thereto, as to business interchanged between the roads of plaintiffs and the leased road extending from Hunter’s Run to Pine Grove. “ Seventh. The Philadelphia & Reading Railroad Company and Edward M. Paxson, Elisha P. Wilbur and Joseph S. Harris, receivers of said railroad company, their directors, officers and agents, are hereby perpetually restrained and enjoined from holding possession of and operating the road of the Gettysburg & Harrisburg Railway. Company in any wise to the detriment of the rights of the plaintiffs under the said agreement of September 30, 1882. “ Eighth. It is ordered that the costs in this action be paid equally by the Gettysburg & Harrisburg Railway Company and the Philadelphia & Reading Railroad Company, or the receivers thereof.” s From this decree, both plaintiffs and defendants have appealed. The plaintiffs assign twenty-nine errors to the decree, defendants, thirty-nine. As to those on either side which question the correctness of any finding of facts by the court below, they are dismissed; we discover no manifest error in any of these findings. We are clear in our conclusion, that the South Mountain & Gettysburg & Harrisburg form in no reasonable view a parallel and competing line to the Cumberland Valley with which they connect; their line approaches Carlisle, the connecting point, almost at right angles; a glance at any railroad map shows this; from Gettysburg to Carlisle, the traffic along this line, when the contract of September 30, 1882, was made, was not one for which the Cumberland Valley could compete; the only competitors that these two short roads could have had at that date were country wagons on the ordinary highways. The contract was not, therefore, forbidden by the constitution. It was in fact an advantage to the public, as well as to the contracting parties, for it relieved the public of the inconvenience of transfer of goods, rebilling, provided for travelers close connections, and necessarily lessened the actual cost of transportation; and there is no evidence the contract was made with a view to increase charges to the shipper; the profits of the contracting parties were expected to result from a lessening of operating expenses to all of them. Any such contract inevitably tends to the advantage of the public, for the cheaper any product can be delivered at destination, the better able is the producer to meet in the market the same products brought to the same destination by other roads, which last always aim to reach and do reach the points where products are marketable. The contract really tends to accomplish the purpose of the general railroad law of 1868, which provides that railroads of a similar character shall have the right to connect upon such terms as may be agreed upon by those who have the management of such roads; and also of the constitution, which declares they shall have the right to connect, and then avows the purpose, that they may “ receive and transport each the other’s passengers, tonnage and cars, loaded or empty, without delay or discrimination.” We conclude, therefore, the contract was not between parallel and competing roads; nor was it unlawful in its ostensible purpose. Whether any of its provisions are unlawful, or whether because of the indefiniteness of others, it is incapable of specific execution, are altogether different questions, and these we now proceed to notice. It is alleged by defendants the contract attempts to exclude other railroads from any use of the roads controlled by the contracting parties. This is only inferential; there is nothing in the contract expressive of such intention. The 5th section of the agreement provides that: “ The parties of the third and fourth parts (the South Mountain and the Gettysburg & Harrisburg roads) hereby respectively covenant and agree that they will, so far as they lawfully can, send to destination all traffic controlled by them via the lines of the parties of tbe first and second parts hereto.” Then further, the sixth section: “It being the intention of the parties hereto that their lines shall be worked as far as possible in harmony with each other;” the two stronger roads covenanting that they will, so far as they can consistently with obligations to other parties, promote the development and interchange of traffic, and carry it at as favorable rates as they accord to any others. Up to this point there is nothing even hinting at a course of conduct violative of either the common or statute law. Nor is the eighth obnoxious to the law. It is as follows: “Nothing in this contract shall be so construed as to give the use of the roads and facilities of the parties of the first and second parts hereto (the Cumberland Valley and Pennsylvania) to any parties whose interests may be at variance with or unfriendly to said parties, nor shall the same be used hereunder to divert from the parties of the first and second parts, traffic properly tributary to the lines controlled by them.” The object of this provision, it is clear, had no application to circumstances as they existed when the contract was made September 30, 1882. The Philadelphia, Harrisburg & Pittsburg Railroad, running from Shippensburg to Harrisburg and crossing the Gettysburg & Harrisburg road six miles south of Carlisle, was not opened for nearly ten years after the date of this contract; it is leased and controlled by the Philadelphia & Reading, and not only is a parallel and competing road with the Cumberland Valley, but was probably intended to be such by its promoters. This section of the contract had in contemplation, doubtless, the construction of this or any other road to be thereafter built; but its provisions could not legally prevent either the one party or the other, after a connection was established as provided by law, from interchange of traffic, nor could it prevent shippers from routing freight to destination over any lines they selected, no matter what the point of shipment or destination. All that can be said of this section is, it may have contemplated a violation of law; if it did, no such violation is shown, although the contract was in operation for years. As it is capable of a wholly different and lawful interpretation, we cannot assume it was intended to unlawfully exclude traffic. It seems to us, the argument and the authorities cited to show the illegality of the contract bear on a state of facts other than those found in this case. If this agreement was intended to give a preference to a certain class of shippers or transporters, and to exclude others, shipping and transporting under like circumstances, it would be void, and Sandford v. Railroad Co., 24 Pa. 878, and like cases would be in point. But it is wholly between connecting roads, not competing or parallel, for interchange of traffic upon terms agreed upon; and they expressly disclaim any intention to violate the law by stipulating to promote their mutual interests so far as they lawfully can. Before the construction of the Gettysburg & Harrisburg road, plaintiffs agreed to set aside fifteen per cent of certain gross receipts for purchase of the bonds of that road, which had thirty years to run; that at once gave them a value to the investing public, who, it is to be presumed, now hold them; they have thirty years to run; to every one of them, by full authority of plaintiffs, was appended a memorandum of this agreement; the road was constructed from the money thus received; by virtue of this stipulation, already nearly $40,000 has been set aside and appropriated to the purchase of these bonds, and the action of these plaintiffs, having made this part of the contract, in effect, a contract between them and the bondholder, their liability by the contract will continue until the last bond has been paid; that is, nothing the obligor in the bond, the Gettysburg & Harrisburg road, may do in violation of the contract, can relieve plaintiffs from, in substance, their contract with the bondholder to continue to set aside fifteen per cent of the gross receipts for purchase of bonds. The South Mountain and Gettysburg roads having received in large part the consideration for entering into the contract, and the contract not being in violation of law, it ought to be enforced specifically, if it be of such terms as that it is capable of enforcement in equity, and if the parties, as they now stand in relation to each other, can be brought within the jurisdiction of equity, so that the hand of a chancellor will reach them. First, as to the Gettysburg & Harrisburg Railway, which by the consolidation now stands as the representative of the South Mountain and Gettysburg & Harrisburg Railroad Companies : A controlling interest in the stock of the two merged and consolidated roads was obtained by the Philadelphia & Reading, which controlled the Philadelphia, Harrisburg & Pittsburg .Railroad, a parallel and competing line with the Cumberland Valley, constructed long after the contract. It was manifestly, therefore, to the Reading’s interest as the practical owner of a competing line, to break the contract with the plaintiffs. It proceeded to do so without hesitation, acting nominally through the new boards of management in the roads over which it had secured control.' But a change of persons in a corporation board of directors does not change the identity of the corporation, nor its contract liability; nor is the obligation of the other party to the contract affected ; such change can no more relieve the corporation from its contract liability than from the $250,000 mortgage on its corporate property. What effect the dissolution of the corporation under judicial decree or the sale of its franchise and property under proceedings in bankruptcy would have on unsecured contracts are altogether different questions. Here, the two corporations, at the instance of stockholders having full knowledge of the prior contract, were consolidated under a new name and different management; but for juridical purposes, the new managers and new name present no obstacle to a judicial decree for performance of a contract. Equity deals with the substance, not the form, when it seeks to enforce its decrees. This was in effect held in Bald Eagle Valley Railroad v. Nittany Valley Railroad, 171 Pa. 284. Counsel are mistaken in assuming the decision in that case was based solety on Tulk v. Moxhay, 2 Phil. 774. The court below, in the case first cited, had based its decree on Spencer’s case, and Keppell v. Bailey, 2 Myl. & K. 517; Tulk v. Moxhay was cited by us as overruling Keppell v. Bailey, and deciding that where the covenant was, the purchaser and his assigns would use or abstain from using the land in a particular manner, that equity would enforce the covenant against all purchasers with notice of it. The doctrine of that ease has been applied in later eases in England only to restrictive covenants. But this court has not so limited the principle, by confining the administration of equity in like cases to a restraining order; to accomplish equity, where there is no adequate remedy at law, often demands mandatory orders : Thou shalt do, as well as, thou shalt not. True, the restrictive order is generally more easily enforced than one purely mandatory; in practice, often, the latter is incapable of enforcement; but where such order can be enforced in aid of an equitable decree it will be issued, and ought to be. In the mere change of name and personnel of the boards we see no serious obstacle to a mandatory writ in aid of a restraining order. It is further argued that as the term for which the contract Was made is not fixed, therefore it continued only during the will of the parties, and might be revoked by either on notice. This, as a general proposition, if the fact were as stated, is correct, and it is so held in Phila. etc. Railroad v. River Front Railroad, 168 Pa. 357, and the authorities there cited. But the term in this contract is fixed by the plainest implication; the bonds to be purchased ran for thirty years ; the obligation of plaintiffs was to set aside annually fifteen per cent of the gross receipts, to be used in annual purchase of the bonds. The term of defendants’ obligation under the joint contract must be coextensive as to time with plaintiffs’ obligation to set aside and pay ; that is, thirty years. Nor is the contract so indefinite in its terms that performance cannot be decreed; for nine years they operated their roads under the agreement without, so far as appears, finding it necessary to resort to the arbitration clause in case of dispute; its indefiniteness is first alleged when a motive exists for breaking the contract. While the exact details by which each shall receive and transport promptly the other’s traffic, and how the joint earnings shall be apportioned on a mileage basis, cannot now be particularized by the court, the primary stipulations of the contract are definite, and as to them has been entered a decree that they shall be performed specifically; the purpose of defendants to stop the interchange of traffic under the contract has been arrested by this decree; the contract is now obligatory upon all the parties, and is to be performed according to its manifest intent; when this is done in good faith, the daily operations of the respective roads alone can determine the exact details necessary to effective obedience of the decree. In case of dispute as to the particular methods, either can call into opera,tion the arbitration clause, or if this be unavailing, either can, on proper proof, secure from the court below a supplementary decree, which in the light of the evidence that may then be adduced will carry out fully the decree already made. While parties to such contract can agree definitely that they will pro mote and facilitate tbe interchange of cars and business between their respective roads, and that the earnings from the joint business shall be apportioned on a mileage basis, it would be practically impossible to enumerate in the agreement all the details by which it should be carried into effect; these would necessarily have to be postponed until the daily operations of the road suggested what would best promote their convenience and that of the public. As to the appeal of the Gettysburg & Harrisburg Railway Company, it is dismissed and the decree affirmed. For the reasons given by the court below, the decree as against the Philadelphia & Reading Railroad Company, the Hunter’s Run & Slate Belt Railroad Company and the receivers of the Philadelphia & Reading Railroad Company is affirmed, and their appeals dismissed.

Opinion by Mr. Chief Justice Sterrett, After this cause was regularly at issue, it was agreed by the parties that certain facts, recited in their statement filed, shall “ have the same force and effect as if duly proved and found according to equity practice,” and that said facts shall, “ be a substitute for all allegations of fact in the bill and answer,” and further that said last mentioned allegations of fact “shall not be evidence for any purpose.” The ease was accordingly heard and disposed of on the substituted facts recited in said statement ; and the sole question is whether upon those admitted facts the learned court erred in entering the decree from which the defendant has appealed. Without referring in detail to all the recitals contained in the statement, it appears in the first and second paragraphs thereof that plaintiffs are the owners in fee of premises No. 1208 Walnut street, and the defendant, William Milligan, is the owner— by deed of July 10, 1894 — of the adjoining house and lot, No. 1210 Walnut street, immediately west of plaintiffs' house and lot. The facts, recited in the third and in the first sentence of the fourth paragraph, show that by regular deeds of conveyance the title in fee to premises Nos. 1208 and 1210 Walnut street became vested in Charles D. Meigs prior to July 1, 1854. On that day, as recited in the residue of the fourth paragraph, “ Charles D. Meigs, being then the owner of Nos. 1208 and 1210 Walnut street, conveyed No. 1210 Walnut street to John Forsyth Meigs in fee by deed, duly recorded, which recited the condition set forth in paragraph 3, and contained the following covenant: ‘And the said John Forsyth Meigs doth for himself, his heirs and assigns, covenant, promise, and agree to and with the said Charles D. Meigs, his heirs and assigns, owners of the messuage and lot of ground adjoining the above described and granted lot on the east, that he the said John Forsyth Meigs his heirs and assigns, shall not and will not, at any time or times hereafter, erect or put up or cause or suffer to be erected or put up any building or part of a building or other obstruction ex cept a bath house and privy and walls or fences not exceeding eight feet in height from the level of the ground, on the said above described and granted lot of ground further south than fifty-nine feet from the original line of the said Walnut street.’ ” “ On August 5th, 1865, Charles D. Meigs conveyed No. 1208 Walnut street to John Forsyth Meigs, by deed duly recorded, under and through which plaintiffs own that lot. And on same day, John Forsyth Meigs conveyed No. 1210 Walnut street to Charles D. Meigs by deed duly recorded, under and through which the defendant owns that lot. This deed and all the subsequent conveyances, under which the defendant derives title, recite at length the conditions in the deed of 1828, (quoted in paragraph 8), and also the covenant of John Forsyth Meigs, (above quoted), and all contain a recital, immediately after the clause of habendum et tenendum, that they are made ‘ under and subject to the above mentioned conditions ’ as the same are above particularly mentioned.” It is further agreed, inter alia, in paragraphs 6 and 8, that in August, 1894, the defendant commenced to construct a bath house, jutting out from the rear wall of his house at or near the level of the second story and extending up over his own lot more than nine feet above said level. This structure, — nearly nine feet deep, six feet wide and over nine feet high, — is more than eight feet above the level of the ground and more than fifty-nine feet from the original south fine of Walnut street. Immediately upon discovering defendant’s intention to construct this bath house, plaintiffs warned him to desist, and thereupon filed their bill praying for an injunction, etc. On behalf of defendant, it was contended in the court below and here that the structure in question, which was completed and fitted up for a bath room or house, is not within the inhibition of the building restriction above quoted, because “ a bath house ” is one of the structures excepted from its operation, and the qualifying words “ not exceeding eight feet in height,” etc., apply only to inclosing “ walls or fences,” and not to either of the other structures — “ bath house and privy ” — specified in the same exception. The learned judge of the common pleas came to a different conclusion, and holding that the structure in question was prohibited by the building restriction he accordingly entered the decree from which this appeal was taken. In thus construing tbe covenant running with the land we think he was clearly right. Our consideration of the facts presented in the statement above referred to has satisfied us that the purpose of the parties was to create an easement of light and air in favor of plaintiffs’ lot by imposing the same on the lot now owned by the defendant, and to that end the covenant above quoted was incorporated in the deed. Tins is substantially the construction put upon the restriction clause by the learned judge, and his decree should not be disturbed. Decree affirmed and appeal dismissed at appellant’s costs.

Opinion by Mb.. Justice Green, There is but one question in this case that needs consideration. It is the question of estoppel. Can the defendant be permitted to set up the defense it has made against the plaintiff’s claim? We are clearly of opinion it cannot. There is no controversy as to the facts. The learned court below granted a compulsory nonsuit at the end of the plaintiff’s testimony upon a theory to which we cannot possibly assent. The question of waiver is of no consequence in view of the facts given in evidence by the plaintiff. The legal plaintiff, Hiram Highlands, held a fire insurance policy issued by the defendant, covering a barn and its contents and a dwelling house and furniture. This policy was executed on May 26,1891, to continue for five years. On August 2, 1892, Mr. Highlands made an assignment for the benefit of creditors to Charles B. Baker, who accepted and executed the trust. Mr. Baker testified on the trial that within a few days after the assignment was made, he went to the agent of the defendant, Meredith, for the purpose of having the policy transferred to him as assignee, but was assured by the agent that the policy was good as it was, and did not require any transfer until after deeds were made to the purchaser of the property from the assignee. Later on, at another conversation on the same subject, he said the agent told him “ there was no occasion to have that policy transferred until after the deed was made; otherwise he said, if it was transferred before the deed was made, it would be just about in the same shape as it was before; that it would leave it stand in my hands.” In consequence of this he retained the policy, and the transfer was not made. During the following year, 1893, the same agent of the defendant, Meredith, made a demand upon the assignee for an assessment for a loss which had occurred after the assignment. The witness took the advice of his counsel as to whether he should pay the assessment, and upon being advised to make the payment he did so, and took a company receipt for it, signed by Meredith as collector. That assessment was made on October 14,1892, and the receipt was given on March 18, 1893, for an assessment of $7.50, due the defendant company. The assignee made a sale of the farm on which the barn in question was situated in October, 1892, under an order of the court of common pleas, but the sale was not perfected at that time, and no deed was made to the purchaser until April 21, 1894. In the mean time on April 3, 1894, the barn and its contents were entirely destroyed by fire, and the company refuses to pay because the property had been sold by the assignee, and the court was of opinion that the confirmation of the sale avoided the policy although no deed was made to the purchaser. The assignee having been assured by the defendant through its authorized agent that the policy was good as it was until a deed was made to the purchaser, and the defendant having claimed an assessment for a loss which occurred not only after the assignment, but also after the sale was made by the assignee, and that assessment having been paid, the case comes clearly within the operation of at least three of our decisions, the last of which was made only one year ago. These cases are Mentz v. Lancaster Fire Ins. Co., 79 Pa. 475; Wachter v. Phœnix Assurance Co., 132 Pa. 428, and Light v. Mutual Fire Ins. Co., 169 Pa. 310. In all'of these we held the company estopped by declarations of their agent of a character precisely similar to those made in this case. In the Mentz case, because the agent told the policy holder that the proper indorsement had been made on the policy, we held the company estopped by his declaration. The Wachter case was almost precisely similar to this, and the company was estopped, because the agent assured the policy holder that the policy was properly transferred to the mortgagee, and that nothing more need be done. In the Light case we expressly held that there was no insurable interest in the policy holder after the sale of the property, but we refused to permit that defense to be made. There as here, the policyholder informed the agent of the sale, and wanted to know what was to be done in regard to the policy. The agent told him he had better hold the policy and have the assessments sent, to him, which was done, and they were paid by the insured, who delivered the deed to the purchaser without transferring the policy in pursuance of the advice of the agent. Although the defense of want of insurable interest at the time of the fire was a perfectly good defense, and although there actually was no insurable interest in the plaintiff when the fire occurred, we refused to allow such a defense to be made solely because of the declaration of the agent and the subsequent acceptance of assessments by the company from the insured. We can see no difference between that case and this. Here the assignee of the insured went to the agent of the company shortly after the assignment and informed him of the assignment, and proposed to have a transfer made. But the agent told him it was not necessary, and therefore it was not done. Subsequently the company demanded an assessment from the assignee and it was paid. These were the exact facts upon which the Light case was ruled and they rule this. The company treated the policy as an active subsisting policy after the assignment, and after the sale by the assignee, and they shall not now be permitted to escape liability by asserting the want of a transfer, which was not made because its omission was induced by their own declarations and acts. We cannot understand why the testimony of Hiram Highlands was stricken out, or why the amendment asked for was refused, but as no assignments of error on that account were made those questions are not before us. Judgment reversed and new venire awarded.

Opinion by Mr. Justice Green, What has already been said in the appeal of this same appellant in the case No. 56, July term, 1895, supra, 594, on our list, disposes of the contentions made in this case, and for the reasons there stated we affirm the decree now appealed from. Decree affirmed and appeal dismissed at the cost of the appellant.

Opinion by Mr. Chief Justice Sterrett, The only question properly before us for decision is the action of the orphans’ court in surcharging the appellant as administrator of Henry Meyer, senior, deceased. The only material and practically undisputed facts are as follows : In August, 1889, the decedent’s real estate, consisting of several tracts, was offered at public sale under an order of the orphans’ court for the payment of debts. One tract of one hundred and ninety acres, having been returned as unsold, the order as to it was continued, and it was again offered June 11, 1890, and knocked down at $83.25 per acre to the administrator, appellant, to whom permission had been granted by the court to bid at his own sale. The next lower responsible bid was $33.00 per acre. No return of this sale was made, because, as alleged by appellant, some of the heirs objected to the price. On October 11, 1890, the same tract was again offered, under the previous order, and was knocked down to the administrator at $36.25 per acre. The next lower responsible bidder at this sale was John Lowderwhose bid was $36.00 per acre. Shortly after the sale Lowder offered to take the property at $36.50 per acre, and a return of sale to him was accordingly prepared, but, before it was presented to court, Lowder withdrew his offer; and thereupon the administrator changed his return, and reported that he was unable to sell the property “ for want of good and sufficient bids for the same.” The order of sale was continued from term to term but nothing further was done until April, 1892, when an alias order was issued, and leave was again given the administrator to purchase at his own sale. At that sale, on June 16, following, he became the purchaser of the tract at $26.00 per acre, and return thereof was accordingly made to court. Exceptions thereto were filed, and, a guaranteed bid of $30.00 per acre having been made, the sale was set aside and a resale ordered. At that sale, in January 1893, W. A. Ishler became the purchaser at $30.00 per acre, and upon due return thereof the sale was confirmed. When the administrator’s final account was filed, the appellees, two of the heirs, excepted thereto and asked that the accountant be surcharged with the difference between the price at which the property was knocked down to him at the sale on October 11, 1890, and the sum for which it was finally sold and conveyed to Ishler. The auditor to whom the exceptions were referred, after reporting the facts substantially as above recited, and referring to other facts and circumstances which he regarded as explanatory of the administrator’s conduct, etc., con- eluded as follows: “ While the auditor cannot altogether approve the course followed by the administrator, yet he believes it was an error of judgment and not such negligence or wilful default as to make him liable to surcharge.” Exceptions to the auditor’s report were filed by the appellees, and were finally argued before the learned president of the 45th judicial district, who, in an opinion filed, sustained the same and surcharged the appellant with $1,187.50, the difference between $30.00 per acre, the price at which the one hundred and ninety acre tract was finally sold, and $36.25 per acre, the price at which it was bid in by him at the sale of October 11, 1890. In this, we think he was fully warranted by the evidence. The .conduct of the accountant was unjustifiable and inexcusable. There is nothing in any of the facts found by the auditor to relieve him from liability for the loss occasioned by his own improper acts. There is no sufficient evidence to warrant the inference that, in assuming to bid (as he expresses it) for the benefit of the heirs, he was acting at their request, or at the request of any of them. There appears to be nothing in the case that requires further discussion. Decree affirmed and appeal dismissed at appellants costs.

HOFFMAN, Judge: Appellant contends that the court below erred in refusing to grant her a new trial because the trial judge erroneously: (1) charged the jury that she (plaintiff below) might be found contributorily negligent, (2) charged that appellee (defendant below) might be excused from liability because of a sudden emergency, and (3) failed to charge that the defendant could be found guilty of reckless and wanton misconduct. We agree with the first two of these contentions, and therefore remand the case for a new trial. This lawsuit grows out of a series of three collisions all occurring within two or three minutes of each other on Township Line Road in Upper Darby Township. Township Line Road is a 60 foot wide highway, with six lanes divided by a double yellow line, and a posted speed limit of 35 m. p. h. There are two driving lanes each for eastbound and westbound drivers, and on either side of the road is an outermost parking lane, which is not used for traffic. Proceeding westerly, the road passes through several intersections: Dermond, Reservation, Apache, and Oleander Roads, respectively. On the north side between Reservation and Oleander, a series of houses front onto Township Line Road with driveway access to the westbound lanes. Appellant testified as follows. She was driving westerly on Township Line Road on January 9, 1970, early in the morning on a clear day. Although it had snowed earlier in the week, the road was clear up to Dermond Road. Past that point, however, the road surface was visibly icy. Just past Reservation Road, she had a slight rear-end collision with a car in front of her driven by Harold Merves. Merves pulled his car over to the extreme right, and stopped along the curb in the westbound parking lane. Seeing this, appellant also pulled over into the parking lane, stopping about three car lengths in front of Merves, near the corner of Apache Road. As appellant parked her car, she looked in her rear-view mirror and saw a vehicle driven by John Charles Moore come up from behind Merves, hit the left rear of Merves’ car and skid all the way across Township Line Road. Merves’ car was still at the curb — it did not seem to have moved much from the impact. Neither of the cars were blocking the driving lanes of the highway; there was still room for two westbound cars to pass. Appellant got out of her car, walked back and met Merves at the curb in front of his car. Moore got out of his car, crossed the street, and joined appellant and Merves in between the cars. At this point appellant lost consciousness, and woke up lying on the road, dazed. Harold Merves’ testimony concerning the conditions of Township Line Road matched appellant’s testimony. After Dermond Road, he could see the ice on Township Line Road and other cars slowing down on it. It was icy enough, he thought, that a good driver would know it would be a “horrible thing” to brake on suddenly. Appellant’s car made a very slight contact with the rear of his car in the right-hand driving lane, and then passed him on the left. He slowed down to pull over, but before he got out of his lane, he was struck again from behind on the left rear of his car by the vehicle driven by John Charles Moore. The contact pushed the Merves car up against the curb in the parking lane, with the rear of the car at a slight angle, three or four feet away from the curb. Appellant came over to his car and was standing at his left front fender near the curb, exchanging a few words there with him. As Moore approached them, they were hit by an unseen force, and Merves landed on the sidewalk. The third eyewitness, John Charles Moore, was unavailable at trial, but his deposition was read by appellee Wolson. His description of the conditions of Township Line Road past Dermond matched that of appellant and Merves, except that he thought there remained enough snow accumulated on the highway so that there were not quite two lanes available for traffic. The Merves and Sullivan cars which were stopped within a mile of the point where the road turned icy, were sitting almost side-by-side in the middle of the road, Merves’ car on the left and Sullivan’s car on the right. Merves and Sullivan were standing in the right-hand lane, in between Sullivan’s car and the curb. Finding his passage blocked, Moore stated that he tried to brake, but he skidded on the ice. He came into contact with the left rear bumper and fender of the Merves car at about 30 m. p. h. and then shot across the eastbound lanes to the other side of the road. He got out of his car, and crossed the street to where Merves and Sullivan were standing near the curb. When he arrived, there was a crash and he went flying through the air. Appellee Isadore Wolson, the verdict winner, testified that he was also driving westerly on Township Line Road, which was clear except for a little snow in the center of the highway and along the curb on either side, about two or three feet out onto the road. As he stopped at the traffic light at Dermond Road, the condition of the road ahead appeared to be the same, a clear, if dirty, blacktop surface. He testified that he could have seen the Sullivan and Merves vehicles stopped ahead if he had looked from there but he was concentrating on the lane of driving ahead. As he proceeded beyond Dermond Road, he had no problem driving. The accumulation of snow in the center of the highway became wider and deeper, leaving only about a lane and a half for driving. He travelled in the left lane, on the edge of the snow, between 30 and 35 m. p. h. When he passed Reservation Road, he saw Merves’ car on the right within the parking lane, with its rear angled out towards the driving lanes. He thought it was a car from one of the houses on the street backing out onto the highway, so he decided to slow down. When he put his foot on the brake, he lost control of his car, which slid down the road past three or four houses, drifting to the right. Just before contact with the right rear of the Merves’ car, he saw two people standing at the curb beside the left front fender of the car. His car struck Merves’ car, and continued to skid until he stopped in the snow in the center of the highway between Apache and Oleander Roads. Merves’ car was pushed across the eastbound lanes to the other curb, near Moore’s car, but was turned around and was now facing east. Wolson testified that when he walked back to the accident over the highway, only then did he realize that the road was covered with dirty compacted ice and snow. It was slippery to walk on, but so dirty that it just looked like natural paving. Wolson stated that if he had not applied his brakes when he did, he would have rolled right on by the Merves vehicle without incident. Appellant first contends that there was no evidence in the record to justify the trial judge’s charge to the jury on contributory negligence. We agree. The only evidence of contributory negligence mentioned in the charge was the appellant’s prior collision with Merves. Appellee Wolson, in his brief, also argues that the jury could have found appellant contributorily negligent in that she voluntarily placed herself in a position of known danger when she remained standing in the parking lane of Township Line Road, next to the curb, in between the parked cars, even after witnessing the Moore collision. A plaintiff’s antecedent negligence will not bar his recovery unless his negligence contributed to his injury as a proximate cause. Taylor v. Fardnik, 231 Pa.Super. 259, 331 A.2d 797 (1975); Hunger v. La Barre, 224 Pa.Super. 507, 307 A.2d 407 (1973); Walters v. Char-Mar, Inc., 220 Pa.Super. 79, 284 A.2d 139 (1971). To determine whether the actor’s conduct is the proximate, or legal cause of harm, the court must consider (1) the number and extent of other forces contributing to the harm, (2) the lapse of time from the conduct to the harm, and (3) whether the conduct creates a force in operation up to the time of the harm, or simply creates a harmless situation which is acted upon by other forces for which the actor is not responsible. Wisniewski v. The Great Atlantic and Pacific Tea Co., 226 Pa.Super. 574, 323 A.2d 744 (1974). By the jury’s verdict, we must assume that they found appellant negligent in her collision with Merves. However, while this was a “but for” cause in fact of the Wolson collision, still it was not the proximate or legal cause of that collision and appellant’s injuries. Under the three-part Wis-niewski test, we find that (1) this prior collision was a de minimis cause of her injuries compared to the nature and extent of the other contributing cause of the collision, namely appellee’s conduct; (2) the two collisions were separate in time and place, the Merves’ car coming to rest a minute or two before the Wolson collision; and (3) whatever force appellant set in motion came to rest when she and Merves parked their vehicles by the side of the road. This was a harmless situation which was acted upon by an outside force, the appellee Wolson. Thus, there was not sufficient evidence to go to the jury that appellant’s antecedent negligence in her collision with Merves was the proximate cause of her injuries. ^ Appellee’s contention that the jury could find appellant contributorily negligent because she stood on the highway in between two parked cars must also fail. The driver of any vehicle involved in an accident resulting in damage to any vehicle has the duty to stop and give certain information to the other drivers involved in the accident. 75 Pa.C.S.A. § 3744(a). One is not bound to anticipate the negligence of another, that is, it is not contributory negligence to fail to guard against the lack of ordinary care by another. Bortz v. Henne, 415 Pa. 150, 204 A.2d 52 (1964); Hughes v. Zearfoss, 194 Pa.Super. 408, 168 A.2d 628 (1961). In her brief, appellant relies heavily on Stanik v. Steuber, 439 Pa. 327, 266 A.2d 703 (1970), Handfinger v. Barnwell Bros., Inc., 325 Pa. 319, 189 A. 312 (1937), and Reisinger v. McConnel, 265 Pa. 565, 109 A. 280 (1920). In Stanik, the defendant ran out of gas on the Schuylkill Expressway and pulled over and parked on the shoulder of the road, leaving three or four feet between his vehicle and the main roadbed. Another driver stopped to help, but left his car on the highway, causing two approaching vehicles to collide. A summary judgment for defendant was affirmed, the court holding that since defendant’s vehicle was parked off the highway in an area provided for emergency stops, and was not obstructing traffic, he was not negligent as a matter of law. In Handfinger, the plaintiff stopped his truck by the side of the highway to repair a light. A truck he was travelling with stopped five feet in front of him. The trucks were parked in a newly constructed outside lane not yet open for traffic, which was clearly marked as such. The plaintiff stepped between the two parked trucks to make the repairs, admittedly without first looking to see if any traffic was coming. Defendant, who admitted his negligence, collided into plaintiff’s truck, crushing the plaintiff between the trucks. The court upheld a jury verdict for the plaintiff, holding that “[ujnder these circumstances we cannot hold as a matter of law that plaintiff was under a duty to anticipate that defendant’s driver would fail to see his truck and crash into it.” Handfinger, supra 325 Pa. at 322-23, 189 A. at 314. In Reisinger, the plaintiff was parked at the curb changing his left rear tire, facing away from oncoming traffic in a stooped position, when the defendant drove his right front fender into plaintiff’s left rear fender, crushing the plaintiff between the vehicles. A verdict for the plaintiff was upheld on appeal, the court holding, “[njeither can plaintiff be held negligent merely because of his presence and position on the street . . . especially is this true as both his car and himself were outside the direct line of traffic . . . .” Reisinger, supra 265 Pa. at 567, 109 A. at 280. Thus, appellant could not be found contributorily negligent merely for stopping, and causing Merves to stop, and parking their vehicles in the parking lane of Township Line Road. Stanik; Handfinger; Reisinger, supra. Indeed, if we were to hold otherwise, we would be penalizing plaintiff for her compliance with the commands of the Vehicle Code. Moreover, we do not think that appellant could be found contributorily negligent for standing on the street near the curb in between the two cars. The above-cited cases indicate that the parking lane on the side of a road is a place where a person may reasonably expect to be safe. Appellant was not under a duty to anticipate that a negligent driver would cause his vehicle to skid into the parking lane and injure her. Bortz; Hughes, supra. Thus, the evidence at trial did not make out an issue of contributory negligence, and it was error for the judge to so charge. There are two other grounds for reversal urged by appellant in this case which merit some discussion. Since we shall have to remand for a new trial in this case, we shall pass upon these contentions now in hope of obviating a future appeal. Appellant contends that it was error for the trial judge to give the defendant the benefit of a “sudden emergency” charge. We agree. In Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45, 49 (1978) the defendant drove his automobile within the speed limit around a turn and lost control of his car because of some gravel and cinders which had accumulated on the road after an earlier snowfall. A passenger brought suit for his injuries sustained in the car’s crash through a fence and into a tree. At trial, the court gave a sudden emergency charge. We reversed, holding that since the gravel on the road was a stationary object rather than a moving instrumentality suddenly and unexpectedly thrust into the path of travel, it was appropriate to charge the “assured clear distance” rule (see Unangst v. Whitehouse, 235 Pa.Super. 458, 344 A.2d 695 (1975)) rather than “sudden emergency.” Here, all the witnesses agreed that there was ice or hard packed snow on Township Line Road beyond Dermond Road due to a previous snowfall. Defendant in his testimony admitted that if he had looked from Dermond Road, he could have seen the Merves and Sullivan vehicles, stationary and parked by the side of the road. Thus, there was no sudden emergency thrust at the defendant; rather the snow and ice on the road and the presence of the stopped cars were all preexisting conditions. Brown v. Schriver is right on point. It was error for the judge to charge “sudden emergency;” and on remand should only give an “assured clear distance” instruction. Appellant next contends that the trial judge erred in failing to charge the jury on the standards by which it might find the appellee guilty of reckless driving. Here, we disagree for the reasons which follow. The Restatement (2d) of Torts § 500 states: “The actor’s conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent.” In Evans v. Philadelphia Transp. Co., 418 Pa. 567, 574, 212 A.2d 440, 444 (1965), the Court said: “[I]f the actor realizes or least has knowledge of sufficient facts to cause a reasonable man to realize the existing peril for a sufficient period of time beforehand to give him a reasonable opportunity to take means to avoid the accident, then he is guilty of wanton misconduct if he recklessly disregards the existing danger.” Thus, whether it is termed “reckless disregard,” or “wanton misconduct,” this basis of liability in tort is premised upon the actor intentionally doing an act creating a great risk of harm when the actor either (1) knows of the great risk, but consciously disregards it and proceeds, or (2) had knowledge of facts which would lead a reasonable man to become aware of this risk in time for the actor reasonably to avoid the danger. See Fugagli v. Camasi, 426 Pa. 1, 3, 229 A.2d 735 (1967); Golden v. Sommers, 56 F.R.D. 3, 5 (1972). Of course, the actor’s actual knowledge of the risk may be inferred from the facts presented. Williams v. Phila. Transp. Co., 219 Pa.Super. 134, 138, 280 A.2d 612, 615 (1971). If the jury finds the defendant guilty of reckless or wanton misconduct, then appellant’s contributory negligence is not a bar to recovery. Id., 219 Pa.Super. at 137, 280 A.2d at 614; Restatement (2d) of Torts, § 482. While we think the evidence presented is sufficient to send the issue of appellee’s negligence to the jury, we see nothing to justify a charge of reckless or wanton misconduct. Appellee put on his brakes because of a misapprehension that the Merves vehicle was backing out onto the road. This misapprehension may have been careless, but it can hardly be said to have exposed the appellant to a greater risk than negligent conduct under the circumstances. If he had not put on his brakes, appellee testified, he would have driven right on by the Merves vehicle without incident. Appellee also stated that when he observed the conditions of the road, it appeared to be a clear, if dirty, blacktop surface. Again, this was a misapprehension from which one could find negligence, but it does not approach the conscious, knowing disregard of danger which would justify a recklessness charge, and there is nothing in the record to suggest that appellee was aware of facts which should have made him aware of this danger. He testified that he did not see any of the prior collisions, which might have put a reasonable man on notice that the road was unusually hazardous. The other eyewitnesses, who never saw his car approaching, were therefore unable to indicate the manner in which appellee was driving. In sum, all that is in evidence is a couple of misapprehensions by the appellee, which because of the icy condition of the road, led to this unfortunate accident. Whether these misapprehensions were negligent is a question for the jury, but the evidence does not allow a charge of reckless or wanton misconduct. Appellant has argued several other grounds for reversal, but we have examined these and have determined that they are not meritorious. The order of the court below denying appellant’s motion for a new trial is reversed; the case is remanded for a new trial consistent with this opinion. PRICE, J., dissents. . The trial judge’s charge on this issue was as follows: “One who is contributorily negligent cannot recover damages for any injury which she has sustained. It is not permissible to attempt to balance, compare or match the negligence of one party against that of another. You must, therefore, determine whether the plaintiff wife was negligent in that as an ordinarily prudent person under all the circumstances then present, she failed to exercise reasonable care for her own protection. If you find that plaintiff wife was negligent, you must then determine whether her conduct was a substantial factor in bringing about her injuries. If your answer is affirmative on both scores, namely that the plaintiff herself was negligent and that her conduct was a substantial factor in causing her own injuries, your verdict should be for the defendant. In order to determine whether the negligence complained of in this case is a substantial factor in bringing about the injury to the plaintiff . the negligent conduct must have been a factual cause of the harm. . . . [Tjhere must ... be a causal connection before the alleged negligence may be a legal cause. I tell you and you are not bound by what I am about to tell you. You are free to do whatever you want from the facts as you find them, but I tell you that in my opinion the first incident which occurred between plaintiff wife and the car operated by Merves which led to their being parked on the side is what I consider to be an insignificant connection with this accident. But I leave that to you and you alone to determine. There may be more than one substantial factor in bringing about an accident.” . These were the facts as testified to by defendant, the verdict winner, plus appellant and appellant’s witness Merves. Of the four eyewitnesses, only Moore testified that the cars were parked in the driving lanes, and that appellant stood unprotected beside them. Moore agreed that appellant was standing next to the curb, but in most other respects, his testimony contradicted the testimony of the other three eyewitnesses, who told substantially the same story. . The trial judge’s charge on this issue was as follows: “Now, you will recall and as I have always told you and I will continue to tell you, your recollection is controlling, but the defendant’s testimony would indicate to you, and he urges you to believe, that he was confronted with what is known as a sudden emergency. He tells you that due to the negligent conduct of the plaintiff wife he was faced at the time of this occurrence with a sudden emergency, not brought about by any conduct of his own. The sudden emergency rule is that where one finds himself in a position of danger which was not the result of his own negligence, he will not be held responsible if he makes a mistake of judgment in extricating himself from the danger situation in which he finds himself. “One confronted by a sudden perilous situation not created by some fault of his own is not required to exercise the highest or even the ordinary degree of judgment. One may legally be blameless in spite of an error of judgment where another has placed him in a situation where it would be unreasonable to hold him to the exercise of cool and correct judgment. “Now, the defendant wants you to apply the sudden emergency principle in this case because of the possibility that you might conclude that he should have acted differently under the circumstances of this case. He contends that under the circumstances, you should not hold him to strict accountability for accuracy or judgment because in his view the emergency was sudden and not created by any wrongful act of his own. “Any party who is free of fault in bringing about a dangerous situation may claim the advantage of the doctrine of sudden emergency. To make use of the rule in one’s favor, the party invoking it, and in this case the party seeking to invoke it is the defendant, must not have caused the hazardous condition by his own prior negligence. When one claims that he was subjected to a sudden emergency, the doctrine will not come to his rescue if he, himself, was so reckless, negligent, or careless as to cause the situation to arise. “In such case, had he been careful, the danger would not have arisen in the first instance. The question whether or not the defendant was confronted with the sudden emergency as I have defined it is for you, you alone to decide, considering all of the circumstances and testimony in this case.” . In this case the judge instructed the jury on both the “sudden emergency” rule and the “assured clear distance” rule. This was error. In a given factual situation, the two charges are mutually exclusive. Brown v. Schriver, 254 Pa.Super. 468, 386 A.2d 45 (1978); Reifel v. Hershey Estate, 222 Pa.Super. 212, 295 A.2d 138 (1972). . Our Supreme Court in Evans v. Phila. Transp. Co., 418 Pa. 567, 574, 212 A.2d 444, 449 (1965) adopted the Restatement (1st) of Torts § 500 as the law of Pennsylvania. The Reporter to the Second Restatement has stated: “This Sectidn has been changed from the first Restatement by rewording it in the interest of clarity. No change in substance is intended.” Restatement (2d) of Torts § 500 (Appendix).

PER CURIAM: Appellant contends that the lower court erred in refusing to suppress: (1) oral admissions made at his home because police officers did not give him Miranda warnings, and (2) a subsequent confession at police headquarters because it was tainted by the initial alleged custodial interrogation. Because we find appellant’s contentions without merit, we affirm the judgments of sentence. On November 9, 1976, Philadelphia police arrested appellant on charges stemming from the September 30, 1976 burglary of the Royal Villa Bar and the October 28, 1976 burglary of Michael’s Dog Grooming Parlor. On January 11, 1977, the lower court held a hearing on appellant’s motion to suppress two statements made by appellant on the day of his arrest. Testimony at that hearing revealed the following facts: On November 9, 1976, Detectives O’Shea and Romano of the Philadelphia Police Department began to investigate the burglary of Mrs. Gentile’s home. Other officers in formed the detectives that Mrs. Gentile had identified appellant from police photographs as a “possible” burglar of her home and that based upon a statement of the owner of the Royal Villa Bar, appellant was also a suspect in the September 30, 1976 burglary of that bar. From the detectives’ interview with the bar owner on November 9, 1976, they learned that (a) a burglar had stolen the owner’s cash register and other items, (b) appellant’s mother had told the owner that his stolen cash register was at her home, and (c) a “similar” burglary had occurred at Michael’s Dog Grooming Parlor across the street from the bar. From their subsequent interview with the owner of the dog parlor, the detectives learned that on October 28, 1976 a burglar had stolen some cash, framed photographs of nude women “similar to the old-time calendars,” a small black ceramic buddha doll and other items. With all of the above information, the detectives went to appellant’s home at approximately 3:00 p. m. on November 9, 1976 to question him about the burglaries of the Gentile home and the Royal Villa Bar. Appellant’s mother admitted the detectives into the home when they asked her whether appellant was there. While waiting for appellant, the detectives observed a photograph of a nude woman and a black buddha doll, both matching the description of the items taken in the dog parlor burglary. When appellant came downstairs, the detectives asked him whether the items were his and where he obtained them. Appellant answered that they were his and that he had bought them from someone coming out of the dog parlor. The detectives then gave appellant Miranda warnings and asked him whether he would voluntarily accompany them to headquarters and bring the photograph and buddha doll with him. Appellant agreed. En route to headquarters, the detectives stopped at the dog parlor where the owner identified the photograph and buddha doll as those stolen during the burglary of his shop. At headquarters, the detectives again gave appellant Miranda warnings. Appellant waived his rights and confessed to burglarizing both the bar and the dog parlor. He signed his confessional statement at 4:30 p. m. On January 11, 1977, after hearing the above testimony, the lower court denied appellant’s motion to suppress the statements he made at his home and at headquarters, proceeded immediately to trial without jury, and found appellant guilty on two bills each charging burglary, theft by unlawful taking, and theft by receiving stolen property. On March 30, 1977, after denying appellant’s written post-verdict motions, the lower court sentenced appellant to two consecutive 10 year terms of probation. This appeal followed. Appellant contends that the lower court erred when it refused to suppress the statements he made at his home prior to the first Miranda warning. In Commonwealth v. Anderson, 253 Pa.Super. 334, 345-347, 385 A.2d 365, 370-71 (1978), we described the following guidelines used to determine “when a ‘custodial interrogation’ which triggers the need for Miranda warnings occurs. First, the mere fact that the police investigation has focused on a particular person will not require Miranda warnings before police interviews with that person. See Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977). Second, if the police in fact place a person in custody or restrict his freedom in any significant way prior to, or during, the interview, then the interrogators must advise that person of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Leam-ing, 432 Pa. 326, 247 A.2d 590 (1968); Commonwealth v. Moody, 429 Pa. 39, 239 A.2d 409 (1968), cert. denied, 393 U.S. 882, 89 S.Ct. 189, 21 L.Ed.2d 157 . . . . Third, a suspect actually may be in custody even if the police have not taken him to a police station or formally arrested him. Fourth, ‘custodial interrogation’ occurs when a suspect ‘. . .is placed in a situation in which he reasonably believes that his freedom is restricted by such interrogation.’ Commonwealth v. Brown, 473 Pa. 562, 570, 375 A.2d 1260, 1264 (1977); . . . .” (footnote omitted). In the instant case, the two detectives wished to question appellant about two burglaries. While waiting for him inside his home, they noticed some items matching the descriptions of items taken in a third burglary. Prior to giving Miranda warnings, they asked appellant only two short questions: were the items his and where did he get them. Appellant responded to both questions. Although the detectives had focused on appellant as a suspected burglar, they did not formally arrest him at his home, expressly indicate that he would be detained until he answered their two questions, or give him any other reason to suspect that he was not free to leave or terminate the interview. Their interrogation was short and occurred in appellant’s own home. Under all these circumstances, we find that the detectives were not conducting a “custodial interrogation: and, consequently, that they were not required to give appellant Miranda warnings before the interview. Appellant also contends that the lower court should have suppressed his statement made at police headquarters after Miranda warnings and waiver because it was a fruit of the poisonous first statement he made at his home. Because we have held that the first statement was not obtained in violation of appellant’s constitutional rights under Miranda, we reject appellant’s second contention. Judgments of sentence affirmed. SPAETH, J., filed a concurring opinion. This case was decided prior to the retirement of JACOBS, former President Judge. HOFFMAN, J., did not participate in the consideration or decision of this case.

Judgment of sentence affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

LIPEZ, Judge: This ease comes before us on appeal from the trial court’s award of attorneys’ fees to appellees, defendants below, purportedly under the authority of the Pennsylvania Labor Anti-Injunction Act of 1937, 43 P.S. §§ 206a-206r (1964) (the “Act”). Since it is our conclusion that no part of this statute is applicable to the instant action, we reverse both the award of fees incurred in defending the suit originally brought by appellants and the award of fees incurred in obtaining that award. On July 12,1976, members of Local 601 of the International Union of Electrical, Radio and Machine Workers (Local 601) employed by appellant Westinghouse at its facilities in Allegheny County, Pennsylvania, began picketing those facilities. The pickets massed at all of the gates, and prevented all persons, whether Union members or not, from entering or, for a time, leaving the plant. On July 14, 1976, Westinghouse filed a complaint in the Court of Common Pleas of Allegheny County seeking a preliminary injunction against the blocking of access to its plants. Since the picketing was at that time not authorized by International Union officials, the complaint was drawn against three named individuals, Bricker, Marton and Scarpone (all of whom were members of Local 601), as well as the Local 601, and the officers of Local 601. The complaint and notice of hearing were served upon Bricker and Marton at the picket lines prior to the hearing, which took place on July 14. Bricker and Marton did not appear, nor were they represented by counsel at the hearing. The trial court issued an order enjoining Bricker and Marton, and all persons acting in concert with them, from preventing or interfering with ingress to or egress from Westinghouse’s Allegheny County facilities, and limiting the number of pickets. The court found no evidence at that time which would have warranted action against the International, the Local, or the officers of the Local, and therefore denied relief against those parties. Mass picketing continued on July 15 and 16, in violation of the court’s Order of July 14. The court granted a Writ of Assistance on July 16, ordering the Sheriff of Allegheny County to enforce the July 14 Order at certain plant gates at certain times. On July 17, 1976, the International terminated the national collective bargaining agreement with Westinghouse, thereby explicitly authorizing the strike. On July 20, 1976, the Union entered into a consent decree enjoining mass picketing at Westinghouse’s Allegheny County plants. As part of this decree, Bricker, Marton and Scarpone were deleted from the complaint as named individual defendants. They continued to be subject to the Order of the hearing court, however, because the July 20th decree enjoined, inter alia, all members of Local 601 into which classification Bricker, Marton and Scarpone obviously fall. Bricker, Mar-ton and Scarpone moved for costs and counsel fees under Section 17 of the Act, 43 P.S. § 206q. The trial court agreed with their contention that injunctive relief had been denied as to them, and that the Act therefore required an award of costs and fees. Appellees requested, and the lower court awarded, not only fees related to the original injunction proceeding, but also fees and expenses involved in litigating the petition to collect attorneys’ fees. Section 4 of the Labor Anti-Injunction Act provides that “this act shall not apply in any case . [w]here in the course of a labor dispute . . . employes . seize . . . the plant ... of the employer . . . .” 43 P.S. § 206d. It has been held that mass picketing which denies access to a plant constitutes a plant seizure. Link Belt Co. v. Local 118, 415 Pa. 122, 202 A.2d 314 (1964); Westinghouse v. United Elec., Radio & Mach. Workers, 383 Pa. 297, 118 A.2d 180 (1955); Carnegie-Illinois Steel Corp. v. United Steelworkers, 353 Pa. 420, 45 A.2d 857 (1946); cf. Wilkes-Barre Indpt. Co. v. Local 120, 455 Pa. 287, 314 A.2d 251 (1974). Where application of the Act is prevented by Section 4 thereof, the courts exercise tradi tional equitable powers. Phila. Minit Man Car Wash Corp. v. Bldg. Trades Council, 411 Pa. 585, 192 A.2d 378 (1963). Courts have no power, absent express statutory authority, to award attorneys’ fees to a successful litigant. Alyeska Pipeline Svce. Co. v. Wilderness Soc’y., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Chatham Communications, Inc. v. Gen’l Press Corp., 463 Pa. 292, 344. A.2d 837 (1975). In particular, courts have no authority to award attorneys’ fees when the Labor Anti-Injunction Act is made inapplicable because there has been a plant seizure. Wilkes-Barre Indpt. Co. v. Local 120, supra. In the instant case, the evidence clearly and completely supports the finding of- the court below that there was a plant seizure. Large numbers of pickets massed at every gate leading to Westinghouse’s plants and prevented, by physical violence or express and implied threat thereof, entrance to the facilities by all persons who attempted to enter. There can be no doubt that this action constituted a plant seizure. See Wilkes-Barre Indpt. Co. v. Local 120, supra; Fountain Hill Underwear Mills v. Amalg. Clothing Workers’ Union, 393 Pa. 385, 143 A.2d 354 (1958); Westinghouse Elec. Corp. v. United Elec., Radio & Mach. Workers, 353 Pa. 446, 46 A.2d 16 (1946); Carnegie-Illinois Steel Corp. v. United Steelworkers, supra. The result in the case at bar must be controlled by Wilkes-Barre Independent. In that case, large numbers of pickets blocked two gates of the plaintiff’s plant during shift changes. The lower court held itself precluded by the Labor Anti-Injunction Act from enjoining the defendant union’s conduct, and awarded attorneys’ fees to the defendant under purported authority of Section 17 of the Act. The Supreme Court of Pennsylvania found the lower court in error and reversed the award of attorneys’ fees, holding that, even though the record supported the lower court’s alternative finding that an injunction was not warranted on equitable grounds, the mass picketing was a plant seizure which prevented the application of the Act in its entirety. An award of attorneys’ fees was therefore improper. The lower court in the instant case attempts to distinguish Wilkes-Barre Independent on the ground that, in that case, “the court found that the party seeking an award for costs (i. e., the union) had participated in the plant seizure.” This statement is clearly erroneous. The Supreme Court of Pennsylvania made no such finding and in fact did not consider in that case whether any of the defendants had participated in the plant seizure. Since there was a plant seizure in the case before us, the Labor Anti-Injunction Act does not apply. We therefore reverse the lower court’s award of attorneys’ fees. In addition, because appellees are not entitled to attorneys’ fees, they are not entitled to fees and expenses involved in their attempt to collect such fees, and we reverse the lower court’s award of those fees as well. In view of our conclusion that the Act does not apply to this case, we do not reach appellant’s alternative contentions that appellees were not entitled to attorneys’ fees because injunctive relief was not in fact denied as to them; or that, assuming arguendo that appellees were entitled to fees, the lower court erred in awarding them fees not incurred in defending the original suit. Reversed. . Section 17 provides: Upon denial by the court of any injunctive relief sought in an action involving or growing out of a labor dispute, the court shall order the complainant to pay reasonable costs and expenses of defending the suit and a reasonable counsel fee. 43 P.S. § 206q (1964). . See text of Section 17 at note 1 supra.

JACOBS, President Judge: Appellant Gary Lee Strader appeals to this Court from the order of the Court of Common Pleas of Butler County denying his Post Conviction Hearing Act petition without a hearing. One half of the petition dealt with a judgment of sentence entered after appellant was convicted following a jury trial of terroristic threats, indecent assault, and unlawful restraint. We find no error in the lower court’s dismissing this part of the petition without a hearing and, accord ingly, affirm that part of the order. The other half of appellant’s P.C.H.A. petition related to his guilty plea to a charge of rape. Appellant was entitled to a hearing on this aspect of his petition. Therefore, we reverse this part of the lower court’s order and remand the case for an evidentiary .hearing limited to this issue. If a [P.C.H.A.] petition alleges facts that if proven would entitle the petitioner to relief, the court shall grant a hearing which may extend only to the issues raised in the petition or answer. However, the court may deny a hearing if the petitioner’s claim is patently frivolous and is without a trace of support either in the record or from other evidence submitted by the petitioner. The Act of Jan. 25, 1966, P.L. (1965) 1580, § 9, 19 P.S. § 1180-9 (1978-79 Supp.). When a lower court denies a P.C.H.A. petition without a hearing, we will affirm the court’s order if upon an examination of the record we also can determine that the claims raised in the petition are patently frivolous. We will remand for an evidentiary hearing on the petition only when it is impossible to tell from the record' whether appellant’s petition was frivolous and without support. Commonwealth v. Payton, 253 Pa.Super. 422, 385 A.2d 410, 412, 414 (1978). Appellant’s first claim in his P.C.H.A. petition was that trial counsel was ineffective in failing to file a timely motion to suppress identification testimony prior to his trial on the aforementioned charges. In determining whether appellant was denied the effective assistance of counsel, we must make an independent review of the record, and first decide whether the claim with which the attorney is charged with not pursuing had some reasonable basis. Only if the claim which was foregone was of arguable merit must we inquire into counsel’s reasons for not pursuing it. Commonwealth v. Hubbard, 472 Pa. 259, 277-78, 372 A.2d 687, 695-96 (1977). Reviewing the evidence in a light most favorable to the verdict winner, here, the Commonwealth, the facts are as follows: On the evening of May 11, 1976, at approximately 9:30 P.M., Ms. Karen Holden was returning home from work. As she was proceeding north along Route 8 in Butler County, appellant drove up beside her in his car and motioned for her to stop. After they both pulled off the road, appellant, telling her that he had a gun, forced her out of her car and into his. He then requested that she have sexual intercourse with him and commit sodomy upon him. When she refused, he started his car and drove to a nearby cemetery. There, they both got out of his car and he attempted to force her to have sexual relations with him. She screamed and managed to escape, running to a nearby house. Appellant sped off in his car. Upon arriving at the house, Ms. Holden explained to Mr. Robert Cover what had happened and asked him for help. While Mr. Cover was telephoning the police, a neighbor, Mr. Joseph Shaffer, arrived at the Cover home. Before the police arrived, Ms. Holden described her assailant to Cover and Shaffer as being short and stocky with shoulder length brown hair and sideburns. She said that he was wearing brown plaid pants and was driving a yellow Chevrolet Nova. She repeatedly stated that she could “definitely” identify him and that she would “never forget him.” After Officer Lennon of the Middlesex Township Police Department arrived she repeated this description of her assailant and stated that she could positively identify him if she were to see him again. Officer Lennon then placed Ms. Holden and Messrs. Cover and Shaffer in his police car and drove them to a nearby trailer park. While driving through the park, Ms. Holden and Mr. Shaffer simultaneously saw a yellow Chevrolet Nova. Officer Lennon stopped his car. At about that time, four individuals, appellant, a second man, and two women, emerged from a nearby trailer. According to both Cover and Shaffer, Ms. Holden exclaimed “that’s him” as soon as appellant appeared in the trailer doorway. Officer Lennon asked appellant to approach the police car. Appellant did so and when he put his head into the car Ms. Holden positively identified him as her assailant. Appellant thereafter was charged with terroristic threats, indecent assault, and unlawful restraint. Appellant moved pretrial to suppress Ms. Holden’s identification of him because it was the product of an impermissibly suggestive showup. The motion was denied as being untimely. At trial, Ms. Holden identified appellant as her assailant and also testified to her identification of him on the night of May 11, 1976. Appellant was convicted of all three charges. He filed post trial motions which challenged, inter alia, the court’s denial of his pretrial motion to suppress the identification of him at the trailer park. Appellant withdrew his post trial motions in conjunction with a guilty plea entered to another charge, to be discussed infra. No direct appeal was taken following appellant’s conviction and sentencing. At all times between appellant’s preliminary hearing and the filing of the P.C.H.A. petition, appellant was represented by the same counsel. We hold that appellant’s counsel was not ineffective for failing to file a timely pretrial motion to suppress the identification because such a motion would have been meritless. While it is true that identification evidence should not be admitted at trial if the circumstances of the pretrial confrontation are so infected by suggestiveness as to give rise to an irreparable likelihood of misidentification, “the admission of evidence of a showup without more does not violate due process.” Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972). See also Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967); Commonwealth v. Turner, 454 Pa. 520, 523, 314 A.2d 496, 498 (1974). The determinative factor in admitting evidence of a pretrial confrontation is whether, under the totality of the circumstances, the identification was reliable even though the confrontation may have been suggestive. In determining the likelihood of misidentification resulting from a showup, we must evaluate the witness’ opportunity to observe the accused at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ description of the accused prior to the showup, the level of certainty demonstrated by the witness at the time of the confrontation, and the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411. In the case before us, Ms. Holden was with her assailant for approximately one-half hour. They spent part of that time in a dark car and part of the time in a moon-lit cemetery. Ms. Holden testified that she could not describe her assailant’s face because of the darkness, but she did carefully describe his build, the length and color of his hair, his clothing, and his general appearance to Messrs. Cover and Shaffer and to Officer Lennon. The only discrepancy between Ms. Holden’s description of her assailant and appellant’s actual appearance was that at one point she described him as being five feet three inches tall and he testified that he is five feet eight inches tall. Upon seeing appellant at his trailer, within one-half hour after her escape from the assailant, Ms. Holden positively and unequivocally identified appellant as the man who had attacked her. She did so spontaneously as he emerged from the trailer, and again when Officer Lennon had him approach the police car. At no time did anyone suggest to Ms. Holden that appellant was a suspect in the crime. Based upon the totality of the circumstances in this case, we find that the identification procedure was not so unnecessarily suggestive and conducive to an irreparably mistaken identification as to deny appellant due process of law. Any pretrial motion to suppress this identification testimony would have been without merit, and counsel was not ineffective for failing to make such a motion. Therefore, the lower court did not err in denying this portion of appellant’s P.C.H.A. petition without a hearing since appellant’s claim is patently frivolous and without a trace of support on the record or through other evidence. We now turn to appellant’s contention that the lower court erred in dismissing without a hearing that part of his P.C.H.A. petition which alleged that his guilty plea to a charge of rape was unlawfully induced. Claims challenging the voluntariness of a guilty plea are to be raised in motions to withdraw the plea made to the trial court. Commonwealth v. Schwartz, 251 Pa.Super. 36, 39, 379 A.2d 319, 321 (1977); Commonwealth v. Roberts, 237 Pa.Super. 336, 337, 352 A.2d 140, 141 (1975). We must first determine, then, whether appellant’s failure to file a motion to withdraw his guilty plea constitutes a waiver and precludes him from raising the issue in a P.C.H.A. petition. The Act of Jan. 25, 1966, P.L. (1965) 1580, § 4, 19 P.S. § 1180-4(b). We hold that it does not. Appellant’s petition alleges, albeit inartfully, that his guilty plea was unlawfully induced due to the ineffective assistance of his counsel. As noted earlier, ineffective assistance of counsel has been held to be an extraordinary circumstance excusing an appellant’s failure to follow appropriate procedures in seeking relief for his or her complaints. Commonwealth v. Valezquez, 244 Pa.Super. 327, 330, 368 A.2d 745, 746 (1976). Therefore, we will treat appellant’s P.C.H.A. petition as if it were a properly presented petition to withdraw his guilty plea. The petition alleges Inter alia that appellant’s plea was unlawfully induced because counsel failed to conduct an appropriate investigation or prepare an adequate defense to the charge of rape, counsel failed to move to suppress an identification procured in a suggestive manner, and counsel “persistently advised Petitioner that a deal for ‘3 to 8 was better than 10 to 20’ and that he should enter a guilty plea on pragmatic grounds rather than on grounds of innocence or guilt.” Upon an examination of the record before us, we cannot say that appellant’s claims are patently frivolous or without support on the record. Even though the Commonwealth disputes appellant’s allegations and even though appellant stated at his guilty plea colloquy that his plea was not induced by anything other than the sentence agreement and that he was satisfied with the representation he received from his counsel, the record does not clearly refute appellant’s claim that his plea was unlawfully induced. See Commonwealth v. Knapp, 212 Pa.Super. 560, 562, 243 A.2d 179, 180 (1968). Our courts have previously determined that in borderline cases petitioners are to be given “every conceivable legitimate benefit in the disposition of their claims for an evidentiary hearing.” Commonwealth v. Nahodil, 212 Pa.Super. 77, 79, 239 A.2d 840, 840 (1968). See also Commonwealth v. Laboy, 460 Pa. 466, 470, 333 A.2d 868, 870 (1975). Since issues of fact have been raised in appellant’s P.C. H.A. petition and since we cannot hold that they are patently frivolous or without support on the record, we reverse the lower court’s order dismissing appellant’s P.C.H.A. challenge to his guilty plea and remand that part of this case for an evidentiary hearing. If, after the hearing, the lower court determines that appellant’s guilty plea to rape was not unlawfully induced, appellant’s petition shall be denied. If the court determines that the plea was unlawfully induced, appellant shall be given the opportunity to withdraw the plea and proceed to trial. Appellant also has requested that the hearing on his P.C.H.A. petition be conducted before a different judge. Usually, we find no error in allowing the same judge who presided at a trial or over a guilty plea colloquy to preside at a subsequent P.C.H.A. hearing. In fact, such a procedure is often of benefit to all concerned since the judge is already familiar with the case and may be better able to decide the issues presented. If there is no indication that the interests of justice warrant recusal, we will not order a hearing before a different judge. Commonwealth v. McKelvey, 251 Pa.Super. 409, 415, n. 4 390 A.2d 1302, 1305, n. 4 (1978). Unfortunately, this is not such a case. There is no indication on the record that Judge DILLON acted unfairly or improperly at appellant’s trial. At the guilty plea proceedings, however, the following exchange took place: THE COURT: And you were found guilty of terroristic threats and indecent assault and unlawful restraint, do you understand that? THE DEFENDANT: Yes. THE COURT: And the range of sentence on all of those, I don’t have to repeat those to you. You were found guilty of those. Do you understand that under our system we have to send you to Rockview. That’s the area for any sentence in excess of six months. We do not guarantee that you’ll stay there. That’s up to the Bureau of Correction, you understand that? THE DEFENDANT: Yes. THE COURT: You understand that if the sentence of three to eight years is the sentence three years is when you are eligible for parole? THE DEFENDANT: Yes. THE COURT: Eighteen months is when you are eligible for consideration of pre-release status. Do you understand that? Have you talked that over with Mr. Cingola-ni? THE DEFENDANT: Yes. THE COURT: The Judge has that right to veto any pre-release recommendation. We have very little control over your parole, do you understand that? THE DEFENDANT: Yes. MR. CINGOLANI: Judge, I think you toíd me you wouldn’t veto any pre-release program that came up with him, for him if he otherwise was a good prisoner. THE COURT: That’s right. I usually go along but I’m telling you now, you put this on the record, you’re going to go down there. You’re going to get a lot of free advice, and if you hassle us with post-conviction problems, I veto them. [Emphasis added.] Guilty Plea Proceedings, N.T. 9-12. In fact, Judge DILLON did “veto” appellant’s post conviction petition. While we affirmed his action in part, we also reversed his action in part. In light of Judge DILLON’S remarks at the guilty plea proceedings, we find that the interests of justice require us to order that the evidentiary hearing on appellant’s P.C.H.A. petition be held before a different judge. Affirmed in part, reversed in part, and case remanded for proceedings not inconsistent with this opinion. CERCONE, J., dissents. HESTER, J., files a dissenting statement. HOFFMAN, J., did not participate in the consideration or decision of this case. . The Act of Jan. 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (1978-79 Supp.). . We are compelled to comment upon the briefs prepared by counsel in pursuing this appeal. Appellant’s counsel has chosen to ignore one of the fundamental rules of appellate procedure — that is, that in the argument section of the brief, appellant set forth each of his or her arguments separately and each under the separate heading of the question being addressed. Pa.R.A.P. 2118(a). Instead, appellant has chosen to place all of his arguments in one two and one-half page section of his brief, not headed by any statement of the issue or issues to be addressed and not separated in any manner. Counsel for the Commonwealth likewise presents a five page argument, (half of which consists of appellant’s guilty plea colloquy), in which he fails to clearly differentiate among the various issues he discusses. Furthermore, the Commonwealth’s brief fails to cite any authority for the propositions it sets forth. The briefs submitted by counsel in this case do a disservice to appellant, the Commonwealth, and the judicial system. . Appellant has not waived this issue by failure to raise it earlier. Ineffective assistance of counsel has been held to be an “extraordinary circumstance” justifying a party’s failure to raise an issue on direct appeal and allowing that person to proceed by way of a P.C.H.A. petition. Commonwealth v. Valezquez, 244 Pa.Super. 327, 330, 368 A.2d 745, 746 (1976). . Commonwealth v. Eberle, 474 Pa. 548, 550, 379 A.2d 90, 91 (1977); Commonwealth v. Cropper, 463 Pa. 529, 531, 345 A.2d 645, 646 (1975). . We note that appellant emerged from his trailer voluntarily when the police car arrived and that he was not requested to do so by Officer Lennon or anyone else. . Following the Commonwealth’s presentation of its case in chief, appellant demurred on the basis of the suggestive identification. The trial court overruled the demurrer, thereby further indicating the lack of merit in any pretrial suppression motion appellant might have made on this basis. We also note that the Commonwealth proved by clear and convincing evidence that Ms. Holden’s in-court identification of appellant was based on her observation of him the the time of the crime and was not induced by the subsequent pretrial confrontation. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). . Appellant was charged with the March 4, 1976 rape of June Marie Powers of Saxonburg, Pennsylvania. . Appellant pleaded guilty in conjunction with a plea bargaining agreement which provided that he would be sentenced to serve three to eight years in the State Correctional Institution at Rockview, such sentence to run concurrently with the sentence imposed following his conviction for terroristic threats, indecent assault, and unlawful restraint, discussed supra.

CERCONE, Judge: Appellant, the Commonwealth of Pennsylvania, raises only one issue in this appeal. The Commonwealth contends that the lower court erred in granting licenses to be private detectives to the two appellees, who are currently employed by the Court of Common Pleas of Philadelphia County as probation officers. The Commonwealth argues that licensing appellees as private detectives contravenes public policy in view of the grave potential for conflict of interest. We agree and order that appellees’ private detective licenses be revoked and that they not be granted licenses as long as they continue to work as probation officers. When it granted appellees their licenses, the lower court was aware of the fact that appellees were employed as probation officers; however, the lower court did not feel such employment would conflict with private detective work. In support of its decision, the lower court distinguished our opinion in Stanley Appeal, 204 Pa.Super. 29, 201 A.2d 287 (1964). The trial court in Stanley suspended the private detective license of an individual who was elected to be a constable. This Court sustained the trial court, saying in part: “A constable’s authority to execute warrants of arrest, to arrest on sight for breach of the peace, vagrancy and drunkenness, to carry a deadly weapon concealed upon his person and to be present at the polling places in order to keep the peace, is not conferred upon private citizens, including private detectives. To give these powers, conferred upon a duly elected constable for the benefit of the public, to a person licensed to act for [sic] private persons, creates the distinct possibility of grave abuses. The public policy against allowing one clothed with such extraordinary authority to act as a private detective for private employers seems obvious.” Stanley Appeal, 204 Pa.Super. at 32, 201 A.2d at 289. The lower court construed the Stanley case to apply solely to constables and said that since probation officers do not have authority identical to that of the constable in Stanley, the Stanley rationale doesn’t apply. In Stanley we listed the obvious areas of conflict present in that case, but did not intend that to be a comprehensive list nor did we mandate that only persons who fall within the precise parameters of Stanley would be denied private detective licenses. On the contrary, our concern was that persons holding public office and given extraordinary authority for the benefit of the public might use that authority specifically for the benefit of private persons. Though the authority of a probation officer is not identical to that of a constable, probation officers are vested with powers not allowed private persons. The legislature has delineated the authority of probation officers as follows: “Probation officers . . . are hereby declared to be peace officers, and shall have police powers and authority throughout the Commonwealth to arrest with or without warrant, writ, rule or process, any person on probation or parole under the supervision of said court for fail[ure] to report as required by the terms of his probation or parole or for any other violation of his probation or parole.” The Act of August 6, 1963, P.L. 521, § 1, 19 P.S. § 1091. Lay persons, including private detectives, have no such police powers. In addition to their statutorily granted powers, probation officers have been permitted to request and examine police records. This fact was testified to before the lower court by Officer Michael Nangle. Officer Nangle at the time of the hearing was assigned to the Criminal Record Division of the Philadelphia Police Department. Officer Nangle testified that in that capacity he is authorized to issue records and extracts to the proper authorities, which include probation officers, together with national, state or city governments and law enforcement agencies. Private citizens, however, are not privy to such information. Officer Nangle stated that if a probation officer wishes to examine a police file on somebody that probation officer must first show his credentials proving that he is a probation officer. However, according to Officer Nangle, there is no procedure used to ascertain whether the record requested by the probation officer pertains to a probationer who is assigned to that probation officer. In other words, a probation officer could conceivably examine the police records of any individual. If that probation officer is also a private detective, the potential for abuse of the probation officer’s special privilege becomes apparent. Private detectives are not public offi cers, Commonwealth v. Quinn, 144 Pa.Super. 400, 19 A.2d 526 (1941), and so private detectives are not entrusted with any of the special authority held by various public officers. Yet a private detective who continues in the post of a probation officer would have the legally vested authority, by virtue of his public office, to arrest probation violators, with or without a warrant, which is comparable to the situation disapproved of by this court in Stanley Appeal, supra. Furthermore, such a private detective would be in a position to investigate any person's criminal record, a privilege not enjoyed by all other private detectives. See, Robinson License, 75 Pa.D. & C.2d 476 (1976); Anderson License, 80 Pa.D. & C. 555 (1952). For this reason, we hold that appel-lees should not be granted private detective licenses as long as they continue to work as probation officers. Accordingly, the order of the court below is hereby reversed. . The law governing the licensing of private detectives can be found at 22 P.S. § 11 et seq. (1955) and 22 P.S. § 14 (Supp.1977). . A lay person, i. e., a person lacking police powers, can only effectuate an arrest when the citizen personally observes a felony. Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237 (1968); Commonwealth ex rel. Garrison v. Burke, 378 Pa. 344, 106 A.2d 239 (1954). . In Robinson License, 75 Pa.D. & C.2d 476, 478 (1976), the court was asked to grant a private detective license to a person who worked as a police superintendent. The court denied the license, saying: “[The applicant] would have access to records not ordinarily available to a private detective. . . . [T]he danger of abuse must be avoided so as to eliminate not only any possible conflict, but the appearance of a conflict of interest.” The court was confronted with a similar case in Anderson License, 80 Pa.D. & C. 555 (1952). Anderson License was decided under an earlier version of the private detective licensing law. Nevertheless, the following language still has viability: “[I]t is against public policy to continue a private detective license in one who has obtained official standing as a public officer. Such duality permits access to places, records and information which ordinarily would be closed to a private investigator, and therefore gives to such investigator an advantage which he ought not to have. . . [T]o continue a license in one who has such rights because of official position would be to create a hybrid, semi-official detective such as is not countenanced by any law known to us.” Id. at 556. . Though Commonwealth v. Quinn was decided under an older version of the private detective law, the above holding is still valid under the present state of the law. . Under the Private Detective Act of 1953, private detectives may, among other things, investigate the character and reputation of a person and the credibility of a witness. The Act of August 21, 1953, P.L. 1273, § 2, 22 P.S. § 12. . Like the court in Anderson License, 80 Pa.D. & C. at 556, our decision does not mean that we find the applicants to be lacking in integrity. Rather, we revoke appellees’ private detective licenses on public policy grounds. Where public officials are involved, even the appearance of a conflict of interest should be avoided. Robinson License, 75 Pa.D. & C.2d at 478.

SPAETH, Judge: This is an appeal from two orders, one dismissing appellant’s petition to withdraw his guilty plea and the other dismissing his Post Conviction Hearing Act petition. On March 20, 1976, appellant was charged with aggravated assault, recklessly endangering another person, and ter-roristic threats. When the case was called for trial, on October 14, Judge CIRILLO asked the Commonwealth to call its complaining witnesses. The Commonwealth called both of them but neither appeared. Judge CIRILLO said that the witnesses should have been present, and dismissed the case, finding appellant “not guilty.” (N.T. 16, 17, 18, Hearing on Post Conviction Hearing Act petition). On November 4 Judge CIRILLO revoked this finding when he discovered that the witnesses had not been present on October 14 because the District Attorney thought the matter would be handled as a guilty plea. On November 22 appellant appeared to enter a plea of guilty to all the charges. Judge DAVENPORT accepted the plea after an extensive hearing in which appellant’s attorney, the Commonwealth, and the judge all made a careful effort to insure that the plea was voluntary and intelligent. Judge DAVENPORT placed appellant on probation for one year. Appellant violated his probation, and on January 21, 1977, Judge DAVENPORT resentenced him to 18 months to 5 years in a state correctional institution. On April 19, 1977, appellant filed his petition to withdraw his guilty plea, alleging that his plea had not been “knowingly, intelligently or voluntarily entered.” On May 4 appellant filed his Post Conviction Hearing Act petition, alleging that he had been denied his constitutional right to representation by effective counsel. On June 28, after a short, untranscribed argument, Judge CIRILLO denied the petition to withdraw the guilty plea. On July 20, after a hearing, Judge DAVENPORT denied the Post Conviction Hearing Act petition. First, appellant argues that his guilty plea was not voluntary and intelligent because he was not asked whether he knew he had a possible defense of double jeopardy and whether he was willing to waive that defense; appellant suggests that knowledge of this possible defense would have influenced his decision to enter the plea. Second, appellant argues that his counsel was ineffective because he failed to inform him that he had a possible defense of double jeopardy and failed to raise this defense at the guilty plea hearing. Before considering appellant’s arguments, we must examine the procedure followed in this case. In filing both a petition to withdraw his guilty plea and a Post Conviction Hearing Act petition, appellant obviously was being very careful to make sure that his objections to the guilty plea would be heard below and not be considered waived on appeal. The extent of the caution exhibited here was unnecessary. In Commonwealth v. Schwartz, 251 Pa.Super. 36, 379 A.2d 319 (1977), we stated that the proper procedure for objecting to a guilty plea was to file a petition to withdraw it, instead of appealing directly or filing a Post Conviction Hearing Act petition. See also Commonwealth v. Roberts, 237 Pa.Super. 336, 352 A.2d 140 (1975). We shall therefore summarily affirm Judge DAVENPORT’s dismissal of the Post Conviction Hearing Act petition and consider only appellant’s earlier petition to withdraw the guilty plea. We may not consider appellant’s petition on its merits unless it was timely filed. See generally Commonwealth v. Rosmon, 477 Pa. 540, 384 A.2d 1221 (1978). In Rosmon, the Court held that the timeliness of a petition to withdraw a guilty plea is governed by Pa.R.Crim.P. 321, which requires that the petition be filed within ten days of sentencing. The Court, however, refused to apply the rule because it did not become effective until September 1, 1977, and the petition in that case had been filed before that date. Instead the Court asked whether the petitioner had used “due diligence” in filing the petition and found that he had done so, even though he had waited a month after sentencing. Commonwealth v. Rosmon, supra, 477 Pa. at 543 n. 1, 384 A.2d at 1223 n. 1; See also Commonwealth v. Bunch, 466 Pa. 22, 28 n. 6, 351 A.2d 284, 286 n. 6 (1976) (“The test of timeliness is ‘due diligence, considering the nature of the allegations therein.’ ”) In this case we are likewise confronted by a petition filed before Pa.R.Crim.P. 321 became effective. As in Rosmon, we find that the petition was timely filed. Although the delay here was longer than in Rosmon, there is no assertion by the Commonwealth nor any basis in the record for concluding that appellant failed to exercise “due diligence”. In Commonwealth v. Starr, 450 Pa.Super. 485, 490, 301 A.2d 592, 595 (1973), the Court said, “Where, as here, the withdrawal of the plea is sought only after sentence has been imposed, a showing of prejudice on the order of manifest injustice is required before withdrawal is properly justified.” See Commonwealth v. Rosmon, supra, 477 Pa. at 543 n. 1, 384 A.2d at 1223 n. 1; Commonwealth v. Hare, 475 Pa. 234, 237, 238, 380 A.2d 330, 331 (1977); Commonwealth v. Riggins, 474 Pa. 507, 510 n. 3, 378 A.2d 1229, 1231 n. 3 (1977); Commonwealth v. Sutton, 465 Pa. 335, 340, 350 A.2d 793, 796 (1976); (Concurring opinion, POMEROY, J.); Commonwealth v. Zakrzewski, 460 Pa. 528, 532 n. 2, 333 A.2d 898, 900 n. 2 (1975). In Commonwealth v. Starr, supra, the Court remanded with instructions to consider the petition to withdraw the guilty plea in light of the “manifest injustice” standard. The Court did not itself apply the standard because it had not observed the witnesses at the guilty plea proceeding. Here, such a remand would serve no purpose, for appellant’s arguments do not turn on either his own credibility or that of the other witnesses who appeared at the guilty plea proceeding. We shall therefore decide ourselves whether such “manifest injustice” appears as requires that appellant’s petition be granted. We are not persuaded by appellant’s first argument, that his guilty plea was not voluntary and intelligent because he was not asked whether he knew he had a possible defense of double jeopardy and whether he was willing to waive that defense. Appellant cites Commonwealth v. Roundtree, 440 Pa. 199, 269 A.2d 709 (1970), for the proposition that “Before a guilty plea can be considered to be entered knowingly and intelligently, the defendant should be advised of any possible defense which he may have, and whether he is willing to waive that defense. Specifically, the defendant must state that he is aware that by pleading guilty he loses the opportunity to claim the defense.” Appellant’s Brief at 6. This is far too broad a reading of Roundtree. In that case the petitioner had pleaded guilty to murder even though his testimony at the plea proceeding pointed to a possible self-defense claim. The Court affirmed the denial of the petition on the basis of its finding that the petitioner had no valid self-defense claim, but it did say that “if a defendant pleads guilty to a criminal charge, and in the next breath contravenes the plea by asserting facts which, if true, would establish that he is not guilty, then his guilty plea is of no effect and should be rejected. For on its face, such a situation would show that the plea was not entered with a complete comprehension of its impact.” Commonwealth v. Roundtree, supra, 440 Pa. at 202, 269 A.2d at 711. See also, Commonwealth v. Thompson, 466 Pa. 15, 351 A.2d 280 (1976); Commonwealth v. Rodgers, 465 Pa. 379, 350 A.2d 815 (1976). Here, appellant made no assertion during the guilty plea proceeding indicating a possible defense to the charges. So far as double jeopardy is concerned, it could not have been asserted as a possible defense. Jeopardy does not attach in a case without a jury until the court has begun to hear evidence. Commonwealth v. Smith, 232 Pa.Super. 546, 334 A.2d 741 (1975); Commonwealth v. Culpepper, 221 Pa. Super. 472, 293 A.2d 122 (1972). Judge CIRILLO’s opinion in support of his order makes it clear that when the case was called for trial, on October 14, 1976, he heard no evidence. Therefore, jeopardy had not attached before the guilty plea proceeding on November 4. It follows from this conclusion that appellant’s second argument, that his counsel was ineffective for failing to inform him that he had a possible defense of double jeopardy and for failing to raise that defense, is without merit. If a particular defense would be futile, counsel is not ineffective for failing to raise it. See Commonwealth v. Dever, 243 Pa.Super. 87, 94, 364 A.2d 463, 466 (1976). Affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case. . The record indicates that appellant’s attorney, from the Public Defender’s staff, realized that a Post Conviction Hearing Act petition is not the proper procedure for contesting the guilty plea. On July 11, 1977, he filed a petition to withdraw the Post Conviction Hearing Act petition without prejudice. . The Commonwealth does not raise the issue of timeliness in its brief. . It seems likely that the delay was attributable to change of counsel. Appellant had one attorney at the sentencing hearing and another at the guilty plea hearing. It is not clear when this change took place. Appellant’s third attorney, from the Public Defender’s staff, prepared appellant’s petition to withdraw the guilty plea. It is not clear how soon after sentencing this third attorney was appointed. The petition to withdraw the guilty plea states that “the defendant’s present attorney gained knowledge of the above facts [i. e. that guilty plea was not entered ‘knowingly, intelligently, or voluntarily’] when he was appointed by the Public Defender’s Office to represent the defendant on other charges.” . The “manifest injustice” standard is based on ABA Standards Relating to Pleas of Guilty § 2.1 (Approved Draft 1968).

HESTER, Judge: Appellant was convicted of attempted burglary and possession of an instrument of a crime and was sentenced to 2-23 months in jail and one year probation. Post-trial motions were denied and this appeal followed. Appellant first asserts that this action should have been dismissed because the Commonwealth failed to try him within 180 days of the filing of the complaint. The Commonwealth, conceding that it did not bring appellant to trial within 180 days, asserts that appellant waived his Rule 1100 rights by signing a written waiver. Appellant contends, however, that this waiver was ineffective because he really didn’t understand what he was signing and even if he did, he thought its only effect would be to continue the case for a two-week period. The waiver form signed by appellant does not appear of record, however, in the testimony at the hearing on the motion to dismiss, the District Attorney read the form signed by the appellant: I have been advised and I am aware of the implications and consequences of the above application. And I do not have objections to the continuance. I am further aware of my right to a prompt trial within one hundred and eighty days from the date of the complaint under Pennsylvania Rules of Criminal Procedure Rule 1100. I understand by requesting a continuance I hereby waive my rights to a prompt trial under Rule 1100. (N.T., p. 7) Recently the Supreme Court of Pennsylvania in Commonwealth v. Coleman, 477 Pa. 400, 383 A.2d 1268 (1978) ruled that the following waiver form was ineffective as a waiver of Rule 1100 rights: “I am aware and have been advised of the implications and consequences of the above application and do not have objection to the continuance. I am further aware of my right to a speedy trial and that a continuance shall cause a delay in having said criminal charges disposed of by the Court.” (At 477 Pa. 406, 383 A.2d 1271) The court reasoned that this waiver form was ineffective because it did not explain what “speedy trial” meant. The form used here is almost identical, except, it explains that “prompt trial” means trial within 180 days of the filing of the complaint. This change in the waiver form, we feel, satisfied the missing ingredient of the form used in Coleman, supra. The appellant also testified that he had no reading impediment and had read the form before signing. The form used can be no simpler and after a review of the testimony, we agree with the lower court that this waiver was signed knowingly and voluntarily. Appellant, however, argues that even assuming he knew what he was signing, he was laboring under the false impression that the case would be continued for only two weeks while he procured the services of an attorney. The waiver form did include a note that the case would be passed for two weeks and then placed back on the trial list. However, the lower court found, after listening to the testimony at the hearing, that it was improbable that the appellant was under the impression that this would be a continuance for only two weeks, when, in fact, the appellant did not attempt to contact any attorney until at least a month later. We think that conclusion was correct based on the testimony and circumstances elicited below. We recognize that since this right to a speedy trial is one guaranteed by the Constitution, the Commonwealth was under a burden of proving that the waiver of such right was intelligently made. See e. g. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We have reviewed the testimony and the findings of the court below and conclude that the Commonwealth has satisfied its burden. The appellant’s waiver was effective. His first contention is without merit. Appellant next contends that there was insufficient evidence to support the conviction of attempted burglary and possession of the instrument of a crime. In reviewing the evidence, upon a claim of insufficiency, we must examine it in the light most favorable to the Commonwealth, the verdict winner. Commonwealth v. Smith, 238 Pa.Super. 422, 357 A.2d 583 (1976). The evidence in this case was entirely circumstantial. Officer Maloney of the Lower Merion Township Police Department was on a special “residential robbery” patrol and while cruising Bala Avenue in said township at approximately 3:30 a. m. on May 17, 1976, and shining his spotlight into alleys and doorways, he observed the appellant in an alley, crouching against the wall of a building 6 to 10 feet from the street. The officer stopped, approached the appellant, and asked him what he was doing there. Appellant responded by saying that he was walking home from a party in Paoli (a distance of 15-20 miles) and had stopped because he felt sick. The officer then asked for identification and appellant produced a Pennsylvania driver’s license and an automobile owner’s registration card. The officer noticed that the registration was for a car owned by appellant’s father and which was parked next to the alley facing in the opposite direction from the area wherein appellant resided. Further investigation revealed a partially opened window in the alley leading into a luncheonette with what appeared to be fresh “jimmy” marks across its lower end. Wood chips were also discovered on the windowsill. The officer found a tire iron a short distance away from the window leaning against the building. At the trial, the owner of the luncheonette testified that to his knowledge the window had not been recently opened. Appellant argues that the Commonwealth’s evidence merely places him at the scene of the crime and thus, is insufficient as a matter of law, to sustain his conviction. Appellant’s statement of the law is entirely correct, mere presence at the scene without more, is insufficient to sustain a conviction. See Commonwealth v. Herman, 227 Pa.Super. 326, 323 A.2d 228 (1974). However, we believe that the logical inference to be drawn from the Commonwealth’s evidence does support a finding of guilt. Appellant was discovered crouching down in an alleyway at 3:30 a. m. Immediately adjacent to him was a tire iron. The window to the luncheonette appeared to have been pried open since slivers of wood were still present on the windowsill. Appellant could not explain his presence other than to say he stopped on his way home from a party in Paoli where he had walked from (a distance of 15 to 20 miles). This was entirely inconsistent with the presence of an automobile, owned by his father, parked nearby and to which he had a registration certificate. We believe the jury could have found beyond a reasonable doubt that appellant performed an act which constituted a substantial step toward entering a building with intent to commit a crime therein (see 18 Pa.C.S. § 901), and that the jury could have found that appellant had under his control a tire iron under circumstances not manifestly appropriate for its lawful use, with intent to employ it criminally (see 18 Pa.C.S. § 907(a). We therefore find the evidence to be sufficient and thus this contention to be without merit. Appellant’s next contention is that the court erred in permitting police officers to testify that they were on a special assignment because of a rash of burglaries in the area. Appellant argues that to allow these officers to testify that they apprehended appellant while on a special assignment to thwart residential burglars was unduly prejudicial because it suggested to the jury that appellant’s presence could be explained only by the fact that he must have been there to commit a burglary. While we believe that the officers testimony as to the “special duty” they were on that night was somewhat irrelevant, we do not conclude that these statements were so “unduly prejudicial and inflammatory” as to warrant a new trial. We believe appellant’s argument is specious. If drawn to its logical end, it would require all police officers to testify in plain clothes without reference to their occupation as policemen, since according to appellant’s argument, if one is caught by a policeman, whose job it is to catch wrongdoers, then obviously he must be guilty of some wrongdoing. All people are aware that the function of a policeman is to apprehend suspected wrongdoers. The fact that the policeman is on special duty to apprehend burglars and he arrests an individual who is subsequently charged with burglary, does not create a prejudicial inference with the jury that he is any more guilty than someone who is apprehended by a “regular” police officer. We find no merit in this argument. Appellant next contends that the court erred when it refused to permit the appellant to examine a prior written statement of the luncheonette owner’s wife for exculpatory matter. The owner’s wife was not called by the Commonwealth as a witness and the District Attorney represented that the contents of the statement were non-exculpatory in nature and merely cumulative. The appellant made no pre-trial motion for discovery under Pa.R.Cr.P. 305, but that would not bar his right to discover this during trial. Commonwealth v. Hustler, 243 Pa.Super. 200, 364 A.2d 940 (1976). However, we believe that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Rule 305 do not require the Commonwealth to produce prior statements of persons who do not testify at trial. The purpose of making prior statements of witnesses available to defense counsel is so that defense counsel may uncover inconsistencies between a witness’ pretrial statements and his trial testimony. See Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977). Additionally, the Commonwealth has certified that the statement contains no exculpatory material and the trial court is not obligated to conduct an in-camera inspection of evidence or statements in Commonwealth’s possession to determine if they would exculpate appellant. Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975) cert. denied Pennsylvania v. Martin, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226. We find this assertion to be without merit. The next contention is that the court erred in not further instructing the jury on circumstantial evidence by using an example offered by the appellant. When reviewing a court’s charge for error, it is our duty to review all of the charge that relates to the asserted error. Commonwealth v. Duffy, 252 Pa.Super. 148, 381 A.2d 157 (1977). The appellant claims that the charge improperly allowed the jury to infer that his mere presence at the scene was sufficient to prove that he committed the crimes. Appellant asserts that his proffered example would have avoided creating that inference with the jury. Appellant had requested the court to further instruct the jury with the example that if one saw fresh footprints in the snow, to say a particular person walked there, you would need the size of his foot or some connection to the imprint in the snow. The court refused, reasoning that its charge was sufficient and to add an example, after the full charge had been given, would improperly emphasize that point. We have reviewed the court’s charge as to circumstantial evidence, and we find that it adequately explains the correct law as regards to circumstantial evidence and it was not error for the judge to refuse to use appellant’s requested example. Commonwealth v. Kahley, 467 Pa. 272, 356 A.2d 745 (1976); Commonwealth v. Newsome, 462 Pa. 106, 337 A.2d 904 (1975). We find no merit in this contention. Appellant next asserts that the court erred in failing to grant a mistrial based upon certain opening remarks of the District Attorney. This issue, however, was not raised in appellant’s post-verdict motions and hence it is waived. Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975). Similarly, we consider the last of appellant’s allegations to be also waived. Appellant contends that his statements to the police at the time of arrest should have been suppressed. In appellant’s brief, the following appears: “Defendant sought to suppress these statements (Pretrial) on the grounds that the Commonwealth’s method of employing them at trial tended to incriminate him. The theory of suppression relied upon here is that the statements were obtained after an illegal arrest in that no probable cause to arrest existed.” (Appellant’s brief, pg. 16) This he cannot do. The appellant cannot change horses in mid-stream. The ground supporting a certain issue must remain the same at both the trial and the appellate levels. As the Supreme Court held in Commonwealth v. Mitchell, 464 Pa. 117, 346 A.2d 48 (1975): We are constrained to conclude that the view expressed in Commonwealth v. Wayman, [454 Pa. 79, 309 A.2d 784] supra, is at variance with well-considered judicial policy and should be discarded. To make a distinction turn upon the fact that one is merely advancing a new theory, creates a fiction which frustrates the very purpose sought to be accomplished by a strict application of waiver. As was aptly stated by Mr. Justice Roberts speaking for this Court in Kimmel v. Somerset County Commissioners, [460] Pa. [381], 333 A.2d 777 (1975): “It is a fundamental principle of appellate review that we will not reverse a judgment or decree on a theory that was not presented to the trial court. See Altman v. Ryan, 435 Pa. 401, 406-7, 257 A.2d 583, 585 (1969): Abrams Will, 419 Pa. 92, 98, 213 A.2d 638, 641 (1965); Fisher v. Brick, 358 Pa. 260, 264, 56 A.2d 213, 215 (1948); Mayer v. Chelten Avenue Building Corp., 321 Pa. 193, 195, 183 A. 773 (1936).” Id., 460 Pa. at [384], 333 A.2d at 779. Judgment of sentence affirmed. CERCONE, J., concurs in the result. JACOBS, President Judge, files a dissenting statement in which SPAETH, J., joins. SPAETH, J., files a dissenting statement. This case was decided prior to the retirement of JACOBS, former President Judge. HOFFMAN, J., did not participate in the consideration or decision of this case. . The court’s charge is as follows: “The evidence in this case is of two different types. On the one hand there is direct evidence, which is testimony of a witness from his own personal knowledge, such as something he saw or heard himself. An example of this is Sgt. Maloney’s testimony that he saw the defendant in the alley. The other type is circumstantial evidence which is testimony about facts which points to the existence of other facts which are in question. An example of this is the open window with jimmy marks on the sill. Whether or not circumstantial evidence is proof of the other facts in question depends in part on the application of common sense and human experience. You should recognize that it is sometimes necessary to rely upon circumstantial evidence in criminal cases particularly where the crime was committed in secret. In deciding whether or not to accept circumstantial evidence as proof of the fact in question, you must be satisfied first that the testimony of the witness is truthful and accurate. And second, that the existence of the facts that the witness testifies to lead to the conclusion that the facts in question also happened. Circumstantial evidence alone may be sufficient to prove the defendant’s guilt. If there are several pieces of circumstantial evidence, it is not necessary that each piece standing separately convince you of the defendant’s guilt beyond a reasonable doubt. Instead, before you may find the defendant guilty, all the pieces of circumstantial evidence when considered together must reasonably and naturally lead to the conclusion that the defendant is guilty and must convince you of the defendant’s guilt beyond a reasonable doubt. In other words, you may find the defendant guilty based on circumstantial evidence alone. But only if the total amount and quality of that evidence convince you of the defendant’s guilt beyond a reasonable doubt.” (N.T. of January 7, 1977 at p. 109).

PRICE, Judge: This appeal arises from the order of the court below, in a habeas corpus proceeding, granting custody of two children to their father. For the reasons set forth herein, we reverse that order and remand the case for a new hearing and full opinion in this matter. The parties to this appeal, married on February 4, 1966, are now divorced. Since the parties’ separation in March 1973, the mother has had continuous custody of the children, with the father’s visitation rights periodically adjusted, until October 13, 1977, the order herein appealed. The testimony in this case developed as follows. The father contended that all of the conflict surrounding custody resulted from the mother’s numerous and repeated refusals to comply with court orders, and her insistence on moving the children to North Carolina. The father testified that the mother often refused to permit the father to speak with his children on the telephone, and stressed that he was not financially able to visit the children in North Carolina as often as he would have liked. When the mother did return to the Commonwealth for brief periods, she did not inform the father so that he could take advantage of the opportunity to see his children. The father testified that the mother’s refusal to be present for a hearing in the lower court and her move back to North Carolina prior to a scheduled hearing in Westmoreland County forced him to go to North Carolina to attempt to get custody, or at the least, to assert his visitation rights. It was the father’s contention that the mother’s household deprived the children morally^ religiously and physically. He offered testimony attempting to establish the mother’s extra-marital relationships, of which the children were supposedly aware. The mother, on the other hand, emphasized that the children, while in her custody, were wrongfully removed from North Carolina by the father in the fall of 1975 and taken to Pennsylvania. A subsequent court order reaffirmed her right to the children, and she took them back to North Carolina. Then, in August 1977, the children came to Pennsylvania to visit their father. They were not, however, returned to North Carolina before school reopened, as was anticipated. It was as a result of that incident that a habeas corpus petition was filed. Based upon four days of hearings comprising a record of 524 pages, the court below issued findings of fact and an order of court on October 13, 1977. Therein, the court concluded that the father’s testimony was not credible, that his actions were principally done out of spite, vengeance and ill feeling toward his wife, that the father willfully and intentionally violated the custody orders of the Pennsylvania and North Carolina courts, and that the father was in contempt of court. The court stated: “It is the opinion of this Court that John Martincheck does love his children and is ably providing for their needs except he is wrongfully attempting to destroy the children’s love for their mother . . The destruction of this love toward either parent is going to seriously affect the emotional stability of that child in its future.” The court emphasized the children’s stated desire to live with the father but admitted that: “This Court is uncertain as to the reasons for their desire to live with their father, but there is absolutely no doubt that the children have a strong desire to live with their father.” The court speculated that the fact that the mother had recently remarried may have contributed to the children’s stated preference. The court incongruously concluded: “The Court is reluctant to order custody of the children to the father because of the father’s contemptuous conduct, his disrespect for the law and his fabrications in his testimony and his unreasonable behavior and attempting to brainwash the children so as to destroy their love of their mother; however, the Court cannot allow his feeling toward the father, John Martincheck, to affect or influence the Court’s primary concern in these proceedings. Namely, the best interest of the two children. There is very little doubt in the Court’s mind that under the present circumstances it would be in the best interest of the children to remain in the temporary custody of the father.” In all custody disputes, it is fundamental that the best interests of the child must prevail. The child’s physical, intellectual, moral and spiritual well-being are given primary emphasis and all other considerations are deemed subordinate. Commonwealth ex rel. Holschuh v. Holland Moritz, 448 Pa. 437, 292 A.2d 380 (1972); Commonwealth ex rel. Cutler v. Cutler, 246 Pa.Super. 82, 369 A.2d 821 (1977). Although in this case the court below verbalized “best interests of the child, it is certainly difficult to reconcile the few findings which the court made with its ultimately awarding custody to the father. The court made no findings with respect to the mother’s ability, or lack thereof, to care for her children and to provide for their physical, spiritual, intellectual or moral well-being. In the instant case, the court below has unfortunately ' not seen fit to follow this court’s numerous pronouncements regarding opinions in child custody cases. “ ‘[T]he hearing judge should file in every custody case a comprehensive opinion reflecting a thorough analysis of the record as a whole and specifying the reasons for the ultimate decision.’ ” In re Hernandez, 249 Pa.Super. 274, 290, 376 A.2d 648, 656 (1977), quoting Commonwealth ex rel. Grillo v. Shuster, 226 Pa.Super. 229, 237, 312 A.2d 58, 63 (1973). “ ‘Under both the statutory and case law, the scope of our review in child custody cases is quite broad and, while we cannot nullify the fact-finding function of the hearing judge, we are not bound by a finding which has no competent evidence to support it.’ ” Commonwealth ex rel. Grillo v. Shuster, supra, 226 Pa.Super. at 235, 312 A.2d at 62, quoting Commonwealth ex rel. Gifford v. Miller, 213 Pa.Super. 269, 273-74, 248 A.2d 63, 66 (1968). In spite of our broad scope of review, the findings of the court below are so sparse and its conclusion so incongruous, that we are convinced that the order must be reversed, and the case remanded. Provided as we are with such inadequate findings of fact, we are constrained to conclude that the only reason the court below had for vesting custody in the father was the children’s stated preference, and the fact that the children had already enrolled for the new school year in Pennsylvania. While it is true that a child’s preference can carry great weight in a custody dispute, particularly as he grows older, a mere statement of preference is of little persuasive value. Tomlinson v. Tomlinson, 248 Pa.Super. 196, 374 A.2d 1386 (1977). To be of any value the preference must be based on good reasons, and the child’s intelligence and maturity must be considered. Commonwealth ex rel. Hol-schuh v. Holland-Moritz, supra. In this case, the court admitted its total lack of understanding for the children’s stated preferences, yet appeared to erroneously place great weight upon them. The court below, in closing, stated that the order was only temporary, and that the following summer another hearing should be held to determine the progress of the existing arrangement. In light of the woefully inadequate findings made by the court below, and the fact that a year has now passed since custody was temporarily awarded to the father, we order that the case be remanded for a full hearing and submission of a full opinion in compliance with our directive in In re Hernandez, supra. We expressly note that nothing in this opinion is to be construed as our expression of preference as between the parties. The order of the court below is reversed, and the case is remanded for further proceedings consistent with this opinion. . At the time of the hearing in the court below, the children, Sara Jean and George Paul, were eleven and three years of age respectively- . The mother was originally granted custody by order dated July 11, 1973, by the Westmoreland County Court. On January 5, 1976, another order was entered after appellant and the children had moved to North Carolina, which granted custody to the mother pending a hearing that summer, at which time the children would be visiting their father in Pennsylvania. On November 10, 1976, the father initiated a proceeding in North Carolina, and as a result, temporary custody was again awarded to the mother, subject again to the father’s visitation rights.

PRICE, Judge: This appeal followed an order by the lower court which sustained the preliminary objections of appellees and dismissed the complaint as to all the appellees except Norman Atherton. We affirm the order of the lower court in part and reverse and remand in part. On appeal, appellants contend, inter alia, that the lower court erroneously dismissed the complaint against individual appellees Ware and Welch and corporate appel- lees First Pennsylvania Mortgage Trust and Associated Advisers, Inc. We find these contentions to be without merit. However, with respect to appellants’ contention that the lower court erroneously dismissed the complaint against corporate appellees Associated Mortgage Company and Associated-East Mortgage Co., we must agree. Associated Mortgage Company and Associated-East Mortgage Co. failed to raise the issue of lack of personal jurisdiction in their preliminary objections to appellants’ complaint. In light of this fact, the defense of lack of jurisdiction over the parties was waived, and not properly before the lower court when it considered the preliminary objections of all appellees (except Norman Atherton). The lower court’s order dismissing appellants’ complaint against Associated Mortgage and Associated-East Mortgage is therefore in error. We reverse the order of the lower court with respect to Associated Mortgage and Associated-East Mortgage, and remand to the lower court for further proceedings consistent with this decision. The case arises from a $450,000 construction mortgage loan by appellee Associated-East Mortgage Co. to Baneorpo-ration of America, of which appellants are owners of a forty-nine percent interest. Appellants alleged that Associated-East acted as agent for servant of, or in joint partnership with, the other three named corporate appellees. Ap-pellees Welch and Ware were officers of Associated Advisers, Inc. The construction project for which the mortgage loan was advanced met with complete failure. It is alleged in the complaint that appellee Norman Atherton, a fifty-one percent owner of Bancorporation and the general contractor on the project in question, converted funds which were supposed to be used to pay subcontractors on the construction project, and that as a result, the project failed. Appellants further allege that the other appellees committed breaches of contract, made fraudulent misrepresentations, and were negligent in the maintenance and supervision of the loan. Appellants claim that these alleged occurrences contributed to the project’s failure, and as such, appellants sought recovery of those amounts which they lost in connection with the project. Appellees First Pennsylvania Mortgage Trust, Associated Advisers, Inc., Ridgeley P. Ware and Robert B. Welch filed preliminary objections to the complaint, and raised, inter alia, the objection that the lower court lacked in personam jurisdiction over them. Appellees Associated-East Mortgage Company and Associated Mortgage Company filed their own preliminary objections in which they made motions for Correction of Caption, to Strike Plaintiff’s Complaint, and More Specific Pleading. In addition, Associated-East and Associated Mortgage raised the question of improper venue. The lower court in ruling on the preliminary objections considered all of the objections of appellees together, and concluded that the court lacked in personam jurisdiction over all appellees, except Norman Atherton. With certain exceptions (not applicable here), a party waives all defenses and objections which he does not present either by preliminary objection, answer or reply. Pa.R.C.P. 1032. Preliminary objections are the exclusive method of raising the questions of jurisdiction, see Monaco v. Montgomery Cab Company, 417 Pa. 135, 208 A.2d 252 (1965), and the failure to raise the question of in personam jurisdiction constitutes waiver of that defense, Yentzer v. Taylor Wine Company, Inc., 409 Pa. 338,186 A.2d 396 (1962); Dorsch v. Jenkins, 243 Pa.Super. 300, 365 A.2d 861 (1976). Venue and jurisdiction are two distinct and different concepts and an objection raising questions of improper venue should not be construed as raising questions of lack of jurisdiction. See, Smith Estate, 442 Pa. 249, 275 A.2d 323 (1971). In addition, the order of the lower court should not be construed as a sua sponte consideration of the question of in personam jurisdiction since waiver occurred, and thus the lower court was vested with jurisdiction, at the time of the filing of the preliminary objections. It is the question of subject matter jurisdiction which may be considered at anytime during the proceedings. Dorsch v. Jenkins, supra. We find, therefore, that appellees Associated-East Mortgage Co., and Associated Mortgage Co. waived any objections to personal jurisdiction by not raising them in their preliminary objections, and that the lower court was in error in dismissing the complaint against them on the basis of lack of in personam jurisdiction. The order of the lower court is reversed to the extent that it dismisses the complaint against Associated-East Mortgage Co. and Associated Mortgage Co. Since the lower court did not reach the merits of the preliminary objections of Associated-East and Associated Mortgage, this case is remanded for further proceedings consistent with this decision. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case. . Appellants, in their brief, contend that the lower court had jurisdiction of appellees Ware and Welch under the Pennsylvania Long Arm Statute, Act of November 15, 1972, P.L. 1063, No. 271 § 8303 (42 Pa.C.S.A. § 8303). Section 8303 provides that: “Any nonresident of this Commonwealth who, acting individually, under or through a fictitious business name, or through an agent, servant or employee, shall have committed a tortious act within this Commonwealth on or after August 30, 1970, . . . shall be conclusively presumed to have designated the Department of State as his agent for the receipt of service of process in any civil action or proceeding instituted in the courts of this Commonwealth against such individual.” We agree with the lower court that § 8303 does not confer jurisdiction in this case, since appellees Ware and Welch were at no time acting as individuals, under or through a fictitious business name, or through an agent. . We also agree with the lower court’s finding that the conduct of appellees, First Pennsylvania Mortgage Trust and Associated Advisers, Inc., falls within the exception to the Long Arm Statute as set forth in 42 Pa.C.S.A. § 8309(c), which provides that: “Notwithstanding any other provision of this section, for the purposes of determining jurisdiction of courts within this Commonwealth, inspecting, appraising and acquiring real estate and mortgages, and other liens thereon, and personal property and security interest therein, and holding, leasing away, conveying and transferring the same, as fiduciary or otherwise, or collecting debts and enforcing mortgages and rights in property securing the same by any foreign corporation shall not constitute ‘doing business’.”

Judgment of sentence affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

Order affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

Order affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

Judgment of sentence affirmed. WATKINS, former P. J., and HOFFMAN, J., did not participate in the consideration or decision of this case.

SPAETH, Judge: This is an appeal from judgments of sentence entered on convictions of robbery and theft by unlawful taking, The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 384, § 1; 18 Pa.C.S.A. §§ 3701 and 3921, respectively. Appellant’s enumerated grounds for appeal were originally that the verdict was against the evidence; the verdict was against the weight of the evidence; and the verdict was against the law. Counsel for appellant filed a brief seeking permission to withdraw from the case because no issues of arguable merit were raised. This court decided that the brief did not meet the requirements of Commonwealth v. Greer, 455 Pa. 106, 108-08, 314 A.2d 513, 514-15 (1974), and Commonwealth v. Liska, 252 Pa.Super. 103, 380 A.2d 1303 (1977); furthermore, we noted a likely ground for appeal: that appellant’s sentence was illegal because the theft charge should have merged with the robbery charge. We therefore ordered counsel to file an advocate’s brief on the merits. Commonwealth v. Jellots, 254 Pa.Super. 18, 385 A.2d 502 (1978). Counsel has duty filed a new brief with this court raising as issues for appeal, and arguing, that appellant’s sentence was illegal, and that trial counsel was ineffective for (1) not objecting to leading questions about the identification of appellant as the robber; (2) not objecting when the court ruled that evidence of the robbery victim’s description of the robber was irrelevant; and (3) failing to request a jury poll or to advise appellant of his right to request a jury poll. These questions are properly before this court for decision. Ineffectiveness of trial counsel may be raised on appeal where appellate counsel is different from trial counsel, Commonwealth v. Coleman, 235 Pa.Super. 379, 382, 341 A.2d 528 (1975), even where counsel is from the same office (as here), Commonwealth v. Fox, 476 Pa. 475, 383 A.2d 199 (1978). Although the illegality of the sentence was not among appellant’s post-verdict motions, it too may be raised at this time. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Usher, 246 Pa.Super. 602, 371 A.2d 995 (1977). However, we still lack an advocate’s brief on the questions originally raised on appeal, which we cannot consider to have been discarded: that the verdict was against the evidence, etc. Counsel is directed to file within thirty days an advocate’s brief discussing all of the issues that have been preserved, so that this court may rule on them in one decision. JACOBS, President Judge, files a dissenting statement. WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

PER CURIAM: The six Judges who decided this appeal being equally divided the judgment of sentence is affirmed. HESTER, J., files an opinion in support of affirmance in which PRICE and VAN der VOORT, JJ., join. CERCONE, J., files an opinion in support of reversal. SPAETH, J., files an opinion in support of reversal in which JACOBS, President Judge, joins. HOFFMAN, J., did not participate in the consideration or decision of this case. OPINION IN SUPPORT OF AFFIRMANCE HESTER, Judge: Presently before the Court is Appellant’s appeal from the judgment of sentence from Appellant’s conviction for violations of “The Controlled Substance, Drug, Device and Cosmetic Act” to-wit, Possession of Heroin and Possession of Heroin with Intent to Deliver, and Criminal Conspiracy (18 Pa.C.S.A. 903). Following Appellant’s conviction by a jury, his Motions for New Trial and/or in Arrest of Judgment, were timely filed, argued and subsequently denied. On August 4, 1977, Appellant was sentenced to a term of imprisonment of 4 to 8 years. Thereafter, this timely Appeal. Appellant posits four arguments in support of the present appeal. We are of the considered opinion that all of the Appellant’s contentions are without merit and therefore we affirm the judgment and sentence of the lower court. Appellant first posits that the search warrant or affidavit of probable cause was defective in two material respects: (a) that the description of the place to be searched lacked the requisite specificity, and (b) the allegations contained therein were “stale”. We do not agree. The search warrant describes the premises to be searched as “549 West 10th Street, Erie, Pennsylvania. A 2V2 white aluminum sided multi-unit dwelling, the front door is on the east side of the residence facing north, the downstairs apartment. Has grey steps leading to the front porch.” (Emphasis added). It was in this downstairs unit that the contraband was seized and Appellant arrested. Pennsylvania Rule of Criminal Procedure 2005(c) requires: Each search warrant shall: (c) name or describe with particularity the person or place to be searched. Moreover, when faced with a comparable situation in Commonwealth v. Kaplan, 234 Pa.Super. 102, 339 A.2d 86, 87, 88 (1975), we stated: “In Commonwealth v. Fiorini, 202 Pa.Super. 88, 195 A.2d 119 (1963), we held that it is not necessary to a valid description of an apartment that its location within a particular building be given. To the contrary, a search warrant directing a search of an apartment house occupied by a number of different tenants, which states the name of the person occupying the apartment to be searched is valid. Commonwealth v. Fiorini, supra. Turning to the search warrant at issue in the instant case, it is apparent that the warrant set forth the name of the occupant of the apartment to be searched, the street address of the apartment building, and its location on the third floor of the building in which it was situated. Thus, the warrant measured up to the standard enumerated in Fiorini supra.” We find that in the instant case the description of the place to be searched was sufficiently specific and satisfied the standards set forth in Pennsylvania Rule of Criminal Procedure 2005(c) and Fiorini (supra) and Kaplan (supra). We similarly conclude that the affidavit of probable cause was not founded on “stale” information as Appellant alleges, nor was the information contained in said affidavit legally insufficient so as not to justify the issuance of said warrant. Neither Commonwealth v. Simmons, 450 Pa. 624, 301 A.2d 819 (1973), nor any other case cited by Appellant or known to this Court has held that information supplied by a reliable informant becomes “stale” with 72 hours. Similarly, we find that the information supplied by two independent informants was sufficient to constitute probable cause for the issuance of said warrant. In U. S. v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971), the Supreme Court indicated that an affidavit must contain the underlying “facts and circumstances” from which the issuing authorities could find “probable cause”. As in the instant case, when the information is hearsay and is received from police informants, four factors should be considered: 1) accurate information previously given by the informant, 2) corroboration of the informant’s story by other sources, 3) personal and recent observations of the informant which amount to a declaration against interest, and 4) the reputation of the defendant with the police if supported by prior events within the affiant’s own knowledge. Harris, supra at 581, 91 S.Ct. 2075. See also Commonwealth v. Falk, 221 Pa.Super. 43, 290 A.2d 125. The affidavit of probable cause clearly satisfies the minimum requirements of reliability set forth above. Next, Appellant claims that the lower court erred in permitting certain Commonwealth cross examination of a defense witness who had earlier testified as to Appellant’s character. On direct examination, Mrs. Jessie Kelly testified: “Q. OK, how long have you known Mr. Mayfield, Ma’am? A. For two years. Q. Two years? A. Um-hum. Q. Have you ever talked to any people about Mr. May-field? A. Yes, several people. Q. Could you estimate for us the number of people that you have talked to about Mr. Mayfield? A. Five, six, or maybe more. Q. From talking to these people about Mr. Mayfield over a period of two years have you been able to gather an opinion as to what Mr. Mayfield’s reputation in which he works or lives is as to being a peaceful truthful, law-abiding citizen? A. Yes. Q. And is that reputation for being a peaceful, truthful, law-abiding citizen good or is it bad? A. It’s good.” (T. p. 132). Thereafter, on cross the following dialogue took place: “Q. Now, you said you discussed Mr. Mayfield’s reputation for peacefulness, truthfulness and being law-abiding with other people in the community? A. Yes. Q. Do you recall the names of those people? A. Yes, Mr. Hank .Washington, personnel director for Massey-Ferguson, where I am employed, Reverend Hall, he was a friend of the family’s, and Mrs. Maxine Tompkins. Q. When did these discussions take place? A. At various times. Q. Did these take place before or after he was arrested on these charges? A. Oh, that was before. Q. Do you recall how the subject of his honesty happened to come up? A. On one occasion, talking to Hank Washington, I was telling him about the business that we had gone into and everything and he was, you know — he gave me his opinion of Ron, he thought that he was a very nice person and everything; after all, he had been employed there and he just, you know, gave special attention to him. Q. During any of the times when you were having these conversations with other people regarding his law-abidedness and his peacefulness did any of them mention the fact that he had been convicted of attempted armed robbery? MR. SCARPITTI: Your Honor, I would object, we don’t know when that was. THE COURT: What year? MR. MOORE: 1966. MR. SCARPITTI: Your Honor, I am objecting; it is too remote in time to the year 1976. THE COURT: Objection overruled. Go ahead. A. Did anyone ever discuss that with me? Q. Yes. A. No, because probably if I had known it, you know, we would never have gone into business together, you know. Q. And did anyone ever discuss the fact that he received a bad conduct discharge from the Army in 1965? MR. SCARPITTI: Same objection, your Honor. THE COURT: All right, same ruling. A. No.” (T. 136-8). The decisional law of the Commonwealth is quite clear that the Commonwealth may introduce in rebuttal, evidence of prior convictions to attack the credibility of a defendant who has elected to testify in his own behalf. Commonwealth v. Butler, 405 Pa. 36, 173 A.2d 468 (1961); Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). In the instant case, Appellant contends that the lower court erred in allowing into evidence knowledge of Appellant’s prior criminal record as a trial tactic in cross-examining a defense witness who had earlier testified that Appellant had a reputation as a “peaceful, truthful, law-abiding citizen”. Neither Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1977), nor Commonwealth v. Werner, 444 Pa. 458, 282 A.2d 258 (1971), is dispositive. Appellant had “opened the door” to this line of inquiry by placing his reputation at issue vis a vis the testimony of his own witness. Thereafter, we conclude that the lower court did not abuse its discretion when it permitted the aforequoted cross examination. As is artfully stated in Pennsylvania Evidence by Henry, Ch. 4, Sec. 164, page 203: “The witness may be cross-examined as to whether he had heard of certain specific offenses charged against defendant, or as to statements he has made inconsistent with his direct testimony, not for the purpose of proving such facts or discrediting the defendant, but solely for the purpose of affecting the credibility of the witness. (Citations omitted). The proper function of cross examination of such witnesses is not to affirmatively establish the fact of bad reputation, but to break down the basis of the testimony of the witnesses as to good reputation, a distinction being drawn between cases where it is sought to prove particular acts of misconduct and those where the purpose of the examination is to test the accuracy of the testimony of the witness as to good reputation of defendant by showing that he is not familiar with defendant’s reputation, or that his standard of what constitutes good repute is unsound.” (Citations omitted). Appellant contends as a third basis of error that the lower court erred in permitting the Commonwealth to introduce rebuttal testimony of two witnesses, which testimony properly should have been introduced into evidence during the Commonwealth’s case-in-chief. Appellant contends that the testimony of Ethel Hathaway a/k/a Ethel Nobel to the effect that she was involved with Appellant in the prior sale of drugs should not have been permitted by the lower court on rebuttal; but, rather, should have been presented during the Commonwealth’s case-in-chief. During the Commonwealth’s case-in-chief, Donna Coleman testified that one of the individuals who sold heroin for the Appellant was one Ethel Nobel (T. p. 42), (T. p. 61). Moreover, during the course of the trial there were certain inconsistencies created as to how Appellant first met Ethel Hathaway a/k/a Ethel Nobel. After taking the stand in his own defense, the Appellant testified as follows: “Q. Did anyone come over that you know of during the day? A. No one that I knew. Q. Well, did anyone come over? A. Some people came by, yes. Q. They did come by? A. Yes. Q. Do you know how many people? A. Three or four. Q. Would you know their names? A. No, I don’t. Q. Do you know their names today? A. No, I don’t.” (T. p. 154) And again, Appellant reiterated: “Q. Did you hear the names that Donna Coleman mentioned this morning as the people who allegedly would come over to her house and then sell heroin? A. Yes, I did. Q. Did you know those people? A. No, I don’t.” (T. p. 160). Following the close of defendant’s case, the Commonwealth was permitted to call Ethel Hathaway in rebuttal who testified that she knew the Appellant (T. p. 180); that he asked her to sell his drugs for him (T. p. 180); that she had been in Donna Coleman’s apartment the day of Appellant’s arrest (T. p. 183); that she in fact sold drugs for the Appellant: “Q. And did he give you anything? A. Yes, he gave me some more drugs to sell.” (T. p. 181). Thereafter, Ethel Hathaway detailed the financial transactions involved and following that was subjected to vigorous cross-examination by defense counsel. As the Supreme Court of Pennsylvania reiterated in Commonwealth v. Hickman, 453 Pa. at 427, 309 A.2d 564 at 567 (1973): “We have repeatedly held that the order of presentation of evidence is a matter which is largely within the discretion of the trial judge. The introduction of evidence by the Commonwealth, after the defense rests its case, which could have been offered by the Commonwealth during its case in chief is not necessarily grounds for reversal. Commonwealth v. Koch, 446 Pa. 469, 288 A.2d 791 (1972).” We hold that the rebuttal testimony offered was properly permitted by the lower court in the exercise of its discretion and, therefore, same did noc constitute an abuse of discretion so as to warrant the grant of a new trial. Appellant’s final contention of error is that the trial court improperly permitted the introduction of heroin into evidence at trial without the Commonwealth having first properly established its chain of custody. The law is quite clear with respect to this issue. As we said in Commonwealth v. Jenkins, 231 Pa.Super. 266, 332 A.2d 490, 492 (1974): “The admission of demonstrative evidence is a matter committed to the discretion of the trial court. Commonwealth v. Ford, 451 Pa. 81, 301 A.2d 856 (1973). The Commonwealth need not discount every hypothetical possibility of tampering with the evidence, but need only trace the chain of custody ‘insofar as this was possible .' . .’ Commonwealth v. Greenberg, 143 Pa.Super. 203, 215, 17 A.2d 698 (1940). ‘There is no rule requiring the prosecution to produce as witnesses all persons who were in a position to come into contact with the article sought to be introduced in evidence.’ Gallego v. United States, 276 F.2d 914, 917 (9th Cir. 1960). Physical evidence may be properly admitted despite gaps in testimony regarding custody. United States v. De Larosa, 450 F.2d 1057 (3rd Cir. 1971), cert. denied, 405 U.S. 927, 957, 92 S.Ct. 978, 30 L.Ed.2d 800.” Moreover, as we stated in Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573, 578 (1975): “There is no requirement that the Commonwealth establish the sanctity of its exhibits beyond all moral certainty. It is sufficient that the evidence, direct and circumstantial, establish a reasonable inference that the identity and condition of the exhibits remained unimpaired until they were surrendered to the court. See Alexander v. United States, 241 F.2d 351 (8th Cir. 1957); United States v. Clark, 294 F.Supp. 1108 (W.D.Pa.1968), cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48 (1970).” In the instant case, Detective Sergeant William Turner testified that after Detective Strickland searched Appellant and found an Ohio Blue Tip matchbox in Appellant’s left hand front pants pocket and inside the matchbox were nine foil-wrapped packets, the following procedure was followed: “Q. Do you have that box and those packets here today in a plastic bag? A. Yes, this is it according to the inventory we made out, this is item number one on our police inventory. BY THE COURT: Q. Does that have an exhibit number? A. It’s exhibit number three. BY MR. MOORE: Q. And what did you do with that item? A. This item was given by Detective Strickland to Officer David VanBuskirk, who was making out the inventory at the scene of the search. It was marked by Detective Strickland and Officer VanBuskirk, item number one, and it was placed in our evidence briefcase at the scene. Q. Did you subsequently do anything with that item? A. I was in the presence of Detective Strickland when he bagged it in an evidence envelope and marked it to be sent to the lab for analysis.” (T. p. 82). This information was substantiated by Detective Strickland’s testimony which followed: “Q. Showing you Commonwealth’s exhibits one through five, do you recognize any of those as being what you recovered from Mr. Mayfield? A. Item number one was recovered by me from the left hand pants pocket of Mr. Mayfield. BY THE COURT: Q. Can you give us the exhibit number? Is that marked on there? A. Exhibit number three. BY MR. MOORE: Q. And what was that that you recovered? A. It was an Ohio Blue Tip wooden matchbox containing nine wrapped foil packets.” (T. Pp. 105, 106). Finally, the Commonwealth called John Robertson, the Commonwealth’s Criminologist who analyzed the contents of the Commonwealth’s exhibits 3, 4 and 5, at the State Police laboratories. Following a side-bar conference, the Court stated: THE COURT: The counsel have all stipulated that what Mr. Robertson will tell you is that they do contain heroin. He has examined them — was that at the State Police laboratory out at Lawrence Park? MR. ROBERTSON: Yes, your Honor. THE COURT: He examined them and found them to be heroin and all counsel have agreed that his testimony will not have to be presented, they agree it is heroin, so you consider he has testified it is heroin, that each packet is heroin, exhibits three, four and five. MR. MOORE: And all the packets inside within those, the smaller packets inside. THE COURT: And each packet inside each big pack, each matchbox, is heroin. MR. MOORE: Yes, your Honor. THE COURT: All right, it’s all heroin.” (T. Pp. 124, 125). In our opinion, the above evidence was clearly sufficient to establish a reasonably unbroken chain of custody and control of the demonstrative evidence admitted into evidence; moreover, we are fully satisfied that the packets of heroin examined by the Crime Lab and admitted into evi dence by the trial court were the same as those found on the person of the Appellant. Judgment of sentence should be affirmed. PRICE and VAN der VOORT, JJ., join in this opinion. OPINION IN SUPPORT OF REVERSAL CERCONE, Judge. I dissent. I would grant appellant a new trial. The lower court allowed the following cross-examination by the Commonwealth of a witness who had testified as to appellant’s good reputation: “Q. During any of the times when you were having these conversations with other people regarding his law-abid-edness [sic] and his peacefulness did any of them mention the fact that he had been convicted of attempted armed robbery? MR. SCARPITTI: Your Honor, I would object. We don’t know when that was. THE COURT: What year? MR. MOORE: 1966. MR. SCARPITTI: Your Honor, I am objecting; it is too remote in time to the year 1976. THE COURT: Objection overruled. Go ahead. A. Did anyone ever discuss that with me? Q. Yes. A. No, because probably if I had known it, you know, we would never have gone into business together, you know. Q. And did anyone ever discuss the fact that he received a bad conduct discharge from the Army in 1965? MR. SCARPITTI: Same objection, your Honor. THE COURT: All right, same ruling. A. No.” The traditional justification for the rule allowing reputation witnesses to be cross-examined as to otherwise inadmissible past misconduct of the defendant is that the questions show that the witness is either unfamiliar with the defendant’s reputation or misguided as to what constitutes good reputation. The rule is a relic of an earlier era in that it assumes that the defendant’s past transgressions will inevitably have come to the attention of the community and damaged his reputation. The assumption is of dubious validity in a mobile, urban society; the questions show, at most, that the good reputation attributed to the defendant is undeserved. The rule also makes the unrealistic assumption that the jury will consider the evidence as bearing only on the credibility of the witness and will not use it directly against the defendant. Compare Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). It allows the prosecution to do indirectly what it cannot do directly and creates an intolerable risk that the defendant will be judged by isolated past misdeeds. I would abolish it. When a witness is inventing a good reputation for a disreputable defendant, it is open to the prosecution to call its own witnesses to show bad reputation. However, appellant does not ask us to abolish the rule; his objections at trial went to remoteness. The Commonwealth, in the one paragraph its brief devotes to the issue, impliedly concedes that both incidents were too stable to impeach appellant’s credibility, see Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973), but asserts that the staleness standard is different when a reputation witness is being cross-examined. I am not convinced that there is a difference in the standard. I am convinced that both the discharge and the prior conviction were too remote in time to have any bearing on the credibility of the witness, particularly in view of appellant’s youth at the time of the incidents (he was born November 15,1946), and the witness’ admission that she had only known appellant for two years. To regard the witness’ negative answers as impeaching her credibility, we would have to believe that appellant’s misconduct was still the subject of community comment more than ten years after it occurred. It is more likely that appellant had redeemed himself in the eyes of the community with the result that local gossip had turned to fresher topics. The impeachment value of the questions was therefore negligible and was overwhelmingly outweighed by their inflammatory potential. The questions should not have been allowed, and I would accordingly reverse. OPINION IN SUPPORT OF REVERSAL SPAETH, Judge: I would not abolish the rule allowing a reputation witness to be cross-examined concerning past misconduct of the defendant. This rule is based on the peculiarities of the character evidence doctrine and affords the prosecution an effective means of attacking the credibility of a reputation witness called by the defendant. See generally Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948). Such evidence is invariably prejudicial because it may lead the fact-finder to view the past misconduct of the accused as significant in determining his present guilt, but so long as the evidence is admitted solely for the purpose of impeaching the credibility of the reputation witness and the jury is instructed as to its limited purpose, it should be admitted despite its prejudicial effect. Where the past misconduct occurred long before the trial, however, its remoteness may outweigh its effectiveness as a device for impeachment. In such a case the evidence should not be allowed for it lacks probative value on the issue of credibility and serves only to prejudice the defendant. As Mr. Justice Jackson stated in Michelson v. United States, supra : The inquiry here concerned an arrest twenty-seven years before the trial. Events a generation old are likely to be lived down and dropped from the present thought and talk of the community and to be absent from the knowledge of younger or more recent acquaintances. The court in its discretion may well exclude inquiry about rumors of an event so remote, unless recent misconduct revived them. 335 U.S. at 484, 69 S.Ct. at 222. The trial judge abused his discretion in this case when he permitted the Commonwealth to question the witness concerning misconduct that had occurred some eleven years before the trial. The credibility of the witness was not impeached, for she had testified that she had known the defendant for only two years, and she based her opinion concerning his character on that two year period. It is clear that the prejudicial impact of this evidence far outweighed its probative value as an impeachment device. Since it could not serve the sole purpose for which it could be offered — impeaching the credibility of this witness — it should have been excluded. JACOBS, President Judge, joins in this opinion. . Act of 1972, April 14, P.L. 233, No. 64, effective June 14, 1972. Possession — 35 P.S. 780-113(a)(16). Possession with Intent to Deliver — 35 P.S. 780-113(a)(30). 1. In fact, the trial took place in March of 1977. . Of course, it is entirely possible that the community never knew about appellant’s bad conduct discharge. . In Michelson v. United States, supra, the evidence of the twenty-seven year old arrest was properly introduced to impeach witnesses whose character testimony was based on their having known the defendant for the past thirty years.

Order affirmed.

Judgment of sentence affirmed. HESTER, J., concurred in the result. HOFFMAN, J., did not participate in the consideration or decision of this case.

SPAETH, Judge: This is an appeal from an order striking a judgment entered by confession. Appellant and appellee entered into a lease of a store in the Baederwood Shopping Center, Baederwood, Montgomery County. The lease was dated April 22, 1974, and was to run from May 1, 1974, to April 30, 1977. Appellee was to pay appellant a base monthly rent of $2,083.33, and was to pay as “additional rent” sewer rent charges, parking charges, late charges, and increases in real estate taxes over a set base level. The lease contained a confession of judgment clause, as follows: 13. If the rent or rent treated as if in arrears and/or any charges herein reserved as rent shall remain unpaid on any day on which the same ought to be paid, Lessee hereby empowers and Prothonotary or attorney of any Court of record to appear for Lessee in any and all actions which may be brought for said arrears of rent or rent treated as if in arrears or charges therein payable as rent, and/or to sign for Lessee an agreement for entering in any competent Court an amicable action or actions in assumpsit for the recovery of such arrears of rent or rent treated as if in arrears or other charges or expenses, as aforesaid and in said suits or in said amicable action or actions to confess judgment against Lessee for all arrears of rent or rent treated as if in arrears or other charges therein payable as rent or expenses as aforesaid, and for interest and costs, together with an attorney’s commission of 5%. Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rent or rent treated as if in arrears and/or other charges herein payable as rent or expenses as aforesaid shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and/or during and after any extension or renewal of this lease. The lease specified further that “[n]o determination of this lease or the taking or recovering of the premises shall deprive Lessor of any of its remedies or actions against Lessee for rent then due or which would thereafter come due as if there had been no determination of this lease or recovery of the premises, or for damages or for the breach of any covenant herein contained, . . . ” (Record at 7a). Early in 1976, appellee decided to sell its business and asked appellant to terminate the lease, part of the premises to be leased to appellee’s purchaser, one David S. Zenstein, and the remainder of the premises to be let to Town and Country Meat Markets of Baederwood, Inc. On January 30, 1976, appellant wrote a letter to appellee, stating that “[t]his will confirm our agreement that the [April 22, 1974] lease will be terminated effective February 15,1976 in view of our entry into a new lease for a portion of the premises with David S. Zenstein and a lease for another portion of the premises with Town and Country Meat Market of Baeder-wood, Inc.” Record at 16a. The letter went on to state that “[notwithstanding the new leases, until time when rental is to commence under the Town and Country Meat Market of Baederwood, Inc. lease, you [appellee], Mr. Zenstein and Town and Country have agreed that rental is to be paid to us at the rate of Twenty-five Thousand ($25,000.00) Dollars per year, plus taxes and parking lot charges per your existing lease.” Record at 16a. Zenstein took possession of his part of the premises and paid rent of $1,500 per month for the period February 15 to April 15. Town and Country took possession of its part of the premises and began payment' of rent on April 15, 1976. Appellee failed to pay the rent due February 1, nor did it pay any amount toward the rent due thereafter. Appellant gave appellee two written notices of default, and on July. 21, confessed judgment against appellee for $7,768.42. This amount was calculated as follows: Rental — February to April 15, 1976 — $5,208.30; Parking charges for 1975 — $1,-180.16; Parking charges January 1 to April 15, 1976— $344.75; Real Estate Taxes for 1975 — $2,513.72; Real Estate Taxes for January 1 to April 15, 1976 — $735.00; Sewer rent for January 1 to April 15, 1976 — $42.49; Late charges to July 1, 1976 — $374.00; Attorney’s fee — $370.00. Subtotal: $10,768.42; Minus credit for rent paid by Zenstein— $3,000.00. Total = $7,768.42. Record at 2a. Appellee received notice of the judgment on August 2 and filed a petition to open the judgment on September 8. The petition alleged, among other things, that: 6. The Confession clause was invalid once the lease was terminated so that the Confession of Judgment was improper. 7. A part of the monies for which judgment was confessed allegedly accrued after February 16, 1976, when defendant had no obligations under the lease agreement. 8. The warrant of attorney only applied to funds due and owing pursuant to the lease. 9. Defendant has a meritorious defense in that it had no responsibility to make full payments after February 15, 1976. On June 28, 1977, the lower court entered an order striking the judgment. The court’s opinion stated that appellee had shown a meritorious defense with respect to charges accruing after February 16, 1976, and that the part of the judgment consisting of those charges should be opened. The opinion went on to state that “since confession of these charges was not specifically authorized in the warrant of attorney . . . [tjhis Court is compelled to strike the [entire] judgment obtained sua sponte.” Slip opinion at 6. Appellant’s first argumentas that the lower court erred in striking the judgment where appellee had only petitioned to open it. We find considerable merit in this argument. There is a significant body of Pennsylvania case law holding that a judge who is confronted by a petition to strike a confessed judgment should not open the judgment sua sponte. Florida Crab House, Inc. v. Roy P. Hake, 259 Pa.Super. 230, 393 A.2d 801 (1978) (HESTER, J.); Malakoff v. Zambar, 446 Pa. 503, 507, 288 A.2d 819, 822 (1972); Young v. Mathews Trucking Corp., 383 Pa. 464, 119 A.2d 239 (1956); Hamborsky v. Magyar Presbyterian Church (No. 1), 78 Pa. Super. 519 (1922). It is perhaps less clear whether a judge confronted by a petition to open, as here, should strike the judgment sua sponte. However, in Kros v. Bacall Textile Corp., 386 Pa. 360, 364 n. 1, 126 A.2d 421, 423 n. 1 (1956), the Supreme Court stated that it was “extremely doubtful” whether the judge may strike a judgment sua sponte. In Roselon Industries, Inc. v. Associated Knitting Mills, 221 Pa.Super. 8, 289 A.2d 239 (1972), we were confronted by a situation in which an improper judgment had been entered against the appellee. The appellee had filed a petition to open the judgment, which the lower court had granted. We affirmed, noting that while there were valid grounds to strike the judgment, “the instant proceeding . . . was brought on appellee’s petition to open the judgment, and there was no separate pleading asking that the judgment be stricken.” 221 Pa.Super. at 11, 289 A.2d at 241. We see no reason why a judge should be permitted to strike a confession judgment sua sponte. As the Supreme Court observed in Kros v. Bacall Textile Corp., supra, to allow a judge to convert a motion to strike into a petition to open would give the obligor only partial, temporary, relief instead of the complete, final, relief sought. To permit a judge to convert a petition to open into a motion to strike would work an equally troublesome injustice. Here, appellant went to court thinking that at most the proceeding would result in an opening of the judgment. Had it realized that it might be faced with the task of rebutting a motion to strike, it might have prepared differently. This court has repeatedly stressed that “[a] petition to strike off a judgment is a different remedy than a petition to open a judgment; the two are not interchangeable. [Citations omitted.] A petition to strike is proper when one complains of irregularities appearing on the face of the record. [Citations omitted.] On the other hand, an application to open the judgment is appropriate where the alleged irregularity is a matter dehors the record and where evidence relating to the cause of action must be introduced to support the application.” Matlock v. Lipare, 243 Pa.Super. 167, 170-71, 364 A.2d 503, 504 (1976). In addition, a sua sponte conversion of the nature of the proceeding does not comport with Pa.R.Civ.P. 2959. Pa.R. Civ.P. 2959(a) provides: “Relief from a judgment by confession shall be sought by petition. All grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition,” and Pa.R.Civ.P. 2959(c) provides: “A party waives all defenses and objections which he does not include in his petition or answer.” To allow the hearing judge to strike a judgment sua sponte, would subvert the policy thus expressed, that all grounds for attacking a judgment must be raised in a single proceeding. The order of the lower court is vacated and the judgment reinstated. The matter is remanded to the lower court with instructions to treat appellee’s petition as a petition to open the judgment. The lower court may request the parties to give additional testimony or it may rely on the record as it presently stands. HOFFMAN, J., did not participate in the consideration or decision of this case.

Order affirmed. WATKINS, former P. J., and HOFFMAN, J., did not participate in the consideration or decision of this case.

Judgment of sentence affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

Judgment of sentence affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

Order affirmed. CERCONE and SPAETH, JJ., concurred in the result. HOFFMAN, J., did not participate in the consideration or decision of this case.

OPINION PER CURIAM: Order affirmed. Having made an independent study of the entire record, we are of the opinion that the court below properly denied a decree in divorce in this case.

Judgment of sentence affirmed. WATKINS, former P. J., and HOFFMAN, J., did not participate in the consideration or decision of this case.

Judgment of sentence affirmed. HOFFMAN, J., did not participate in the consideration or decision of this case.

ORDER PER CURIAM. AND NOW, this 24th day of September, 2008, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Mandamus is DENIED.

OPINION Chief Justice CASTILLE. The instant matter is before this Court on appellant’s appeal from that part of the order of the Court of Common Pleas of Philadelphia County denying him a new trial pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. For the reasons that follow, we affirm the PCRA court’s denial of a new trial. On May 18, 1993, a jury sitting before the late Honorable Justice Juanita Kidd Stout convicted appellant of first-degree murder and possessing an instrument of crime. The convictions arose from the shooting death of Andre Graves in the early morning hours of July 13, 1992 in the 500 block of North 54th Street in Philadelphia. Graves was shot three times in the head at point-blank range while riding in the passenger seat of a Ford Taurus station wagon that was owned and being driven by his friend, Kevin Cofer, while appellant rode in the backseat. Subsequently, the same jury found two aggravating circumstances and two mitigating circumstances and, after determining that the aggravators outweighed the mitigators, sentenced appellant to death. See 42 Pa.C.S. § 9711(c)(1)(iv) (“[T]he verdict must be a sentence of death ... if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances.”). Represented by new counsel, appellant appealed from his convictions and judgment of sentence to this Court. On October 27, 1997, this Court unanimously affirmed appellant’s convictions and judgment of sentence. Commonwealth v. (Rodney) Collins, 549 Pa. 593, 702 A.2d 540 (1997). After this Court denied reargument on December 11, 1997, the U.S. Supreme Court denied appellant’s petition for a writ of certiorari on October 5, 1998. Collins v. Pennsylvania, 525 U.S. 835, 119 S.Ct. 92, 142 L.Ed.2d 73 (1998). On November 10, 1998, appellant filed a timely pro se PCRA petition in the Court of Common Pleas of Philadelphia County (“PCRA court”). Following the appointment of coun sel, an amended petition was filed on January 19, 2000, and three supplemental petitions were filed thereafter. The Commonwealth filed a motion to dismiss on July 18, 2000. An evidentiary hearing was ultimately held between October 4th and October 8, 2004. On February 15, 2005, the PCRA court, per the Honorable Kathryn S. Lewis, issued an opinion denying relief on all of appellant’s guilt-phase claims but vacating appellant’s death sentence. The Commonwealth did not appeal from the PCRA court’s grant of a new penalty hearing. Appellant’s timely appeal from the denial of a new trial follows. In all, appellant presents a total of fifteen claims for relief: five claims of ineffective assistance of counsel, of which two allege ineffectiveness on the part of both trial and direct appeal counsel while the other three allege ineffective assistance of direct appeal counsel only; six claims of PCRA court error based on the court’s denial of a hearing with respect to various other ineffectiveness claims; and four claims of PCRA court error in handling certain discovery and evidentiary matters that arose during the PCRA hearing. In reviewing the PCRA court’s decision to deny a new trial, our standard of review is limited to examining whether the court’s findings of fact are supported by the record and whether its legal conclusions are free of error. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1071 n. 6 (2006). I. INEFFECTIVENESS CLAIMS Appellant first raises five claims of ineffective assistance of counsel. To merit relief based on an ineffectiveness claim under the PCRA, a petitioner must show that such ineffectiveness “in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S. § 9543(a)(2)(h). We have interpreted this standard to require a petitioner to prove that: (1) the underlying claim is of arguable merit; (2) counsel’s performance lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the petitioner prejudice. Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 233 (2006), cert. denied,-U.S. —, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007) (citing Commonwealth v. (Charles) Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court’s holding in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984))). “A chosen strategy will not be found to have lacked a reasonable basis unless it is proven ‘that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.’ ” Commonwealth v. (Rasheed) Williams, 587 Pa. 304, 899 A.2d 1060, 1064 (2006) (quoting Commonwealth v. Howard, 553 Pa. 266, 719 A.2d 233, 237 (1998)). To demonstrate prejudice, the petitioner must show that there is a reasonable probability that, but for counsel’s error or omission, the result of the proceeding would have been different. Sneed, 899 A.2d at 1084 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). A reasonable probability is a probability that is sufficient to undermine confidence in the outcome of the proceeding. Id. A failure to satisfy any one of the three prongs of the test for ineffectiveness requires rejection of the claim. Id. at 1076. As previously noted, two of appellant’s five ineffectiveness claims allege ineffective assistance of trial counsel. Because appellant was represented by new counsel on direct appeal, and his appeal was pending on collateral review prior to our decision in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), these two claims are cognizable only as “layered claims.” Id. at 739 n. 16. That is, to be eligible for relief on these two claims, appellant must plead and prove that: (1) trial counsel was ineffective for a certain action or failure to act; and (2) direct appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness. Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014, 1023 (2003). As to each relevant layer of representation, appellant must meet all three prongs of the Pierce test for ineffectiveness. Id. (citing Commonwealth v. (Michael) Pierce, 567 Pa. 186, 786 A.2d 203, 213 (2001), abrogated on other grounds, Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002)). A failure to satisfy any of the three prongs of the Pierce test requires rejection of a claim of ineffective assistance of trial counsel, Sneed, 899 A.2d at 1076, which, in turn, requires rejection of a layered claim of ineffective assistance of direct appeal counsel, McGill, 832 A.2d at 1023. As appellant has properly layered his two claims that allege ineffective assistance of trial counsel, we proceed to reach the merits of appellant’s ineffectiveness claims, looking first, in each instance, to the underlying claim of trial counsel ineffectiveness. For ease of discussion, although appellant’s Brief to this Court presents his layered claims first and fourth in sequence, we have reordered appellant’s ineffectiveness claims such that the two layered claims appear first and second in our analysis, followed by the three claims of ineffective assistance of direct appeal counsel only. A. Trial Counsel’s Failure to Present Expert Testimony to Refute Commonwealth’s Ballistics Evidence Appellant first claims that direct appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness for failing to counter the testimony of Philadelphia Police Officer John Finor of the Firearms Identification Unit, who testified for the Commonwealth that the gunshots that killed Mr. Graves were fired from the backseat of the Ford Taurus station wagon. Appellant argues that trial counsel should have consulted with his own ballistics expert prior to trial. According to appellant, such expert would have advised trial counsel not to pursue counsel’s “crackpot” theory that the shooter stood outside the Taurus and would have testified that the shots were more likely fired from the driver’s seat, rather than the backseat, of the car. Appellant’s Brief at 24. In response, the Commonwealth first argues that appellant waived this claim for failing to plead it in his PCRA petition. The Commonwealth notes that, although appellant did plead in the petition the “theory that a ballistician should have been called to testify in support of the defense [presented at trial] that the gunshots were likely fired from outside the [Taurus],” appellant failed to plead in the petition the “theory that a defense ballistician should have been called ... to testify that the gunshots were likely fired from [within] the driver’s side of the [Taurus].” Commonwealth’s Brief at 10. Citing Commonwealth v. Wilson, 580 Pa. 439, 861 A.2d 919 (2004), the Commonwealth contends that these are “substantially different” claims and that the “newly constructed claim” is waived since appellant failed to amend his PCRA petition to plead it. Commonwealth’s Brief at 13. In his reply brief, appellant responds to the Commonwealth’s waiver argument by contending that, while “the theories or arguments [he presents] in support of [t]his claim” differ from those presented in support of the claim as pleaded in his PCRA petition, the claim itself is one and the same. Reply Brief at 3 (citing Commonwealth v. (Ronald) Collins, 585 Pa. 45, 888 A.2d 564, 570 (2005) (distinguishing between “issue” and “theories or allegations in support of a single issue”)). Appellant contends that Wilson is distinguishable from the instant case because Wilson presented additional facts at his PCRA hearing that were not contained in his PCRA pleadings or supporting affidavits, whereas appellant did not. To be eligible for post-conviction relief, appellant must show “[t]hat the allegation of error has not been previously litigated or waived.” 42 Pa.C.S. § 9543(a)(3). Section 9544 of the PCRA defines “previously litigated” and “waived” as follows: § 9544. Previous litigation and waiver (a) Previous litigation. — For purposes of this subchapter, an issue has been previously litigated if: (1) Deleted. (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue; or (3) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. (b) Issues waived. — For purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding. 42 Pa.C.S. § 9544. Thus, in defining both “previously litigated” and “waived,” Section 9544 refers to the term “issue,” which the provision itself leaves undefined. Moreover, Section 9544 uses the term “issue” even though Section 9543(a)(3), the provision for purposes of which Section 9544 defines “previously litigated” and “waived,” uses the term “allegation of error.” See Commonwealth v. Gwynn, 596 Pa. 398, 943 A.2d 940, 944 n. 4 (2008). In (Ronald) Collins, supra, we were presented with the question of the proper interpretation of “previously litigated” for purposes of the PCRA. That question required us to define the term “issue,” which we discussed as follows: There is nothing in this subsection defining “issue”. That term, as used in “pleading and practice,” is understood to mean “a single, certain, and material point, deduced by the allegations and pleadings of the parties, which is affirmed on the one side and denied on the other.” Black’s Law Dictionary, 6th ed. 831. Thus, “issue” refers to the discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief. The theories or allegations in support of the ground are simply a subset of the issue presented. Stated another way, there can be many theories or allegations in support of a single issue, but ultimately, § 9544(a)(2) refers to the discrete legal ground raised and decided on direct review. Thus, at the most basic level, this section prevents the relitigation of the same legal ground under alternative theories or allegations. (Ronald) Collins, 888 A.2d at 570 (footnote and citation omitted). Our interpretation of “issue” in Collins applies for purposes of Section 9544(b) (defining “waived”) as well as Section 9544(a) (defining “previously litigated”). See Gwynn, 943 A.2d at 944 (noting that, in Collins, we defined “issue” within meaning of Section 9543(a)(3)). In the supplemental PCRA petition he filed on July 18, 2000, appellant presented the following claim: Petitioner is entitled to a new trial because trial counsel was ineffective in failing to investigate and present expert testimony to dispute the prosecution witness’ version of events and the ballistician’s conclusions that the shots were fired from within the car in violation of Petitioner’s Fifth, Sixth and Fourteenth Amendment rights and Article I, Sections 9 and 13 of the Pennsylvania Constitution. Supplemental PCRA Petition at 2 (unnumbered) (filed July 18, 2000). In the pleadings offered in support of this claim, appellant elaborated on the claim and restated it in various ways. In restating the claim, appellant used, inter alia, the following language: ... Petitioner’s counsel did nothing — either during or after trial — to obtain a defense expert to challenge Officer John Finor’s conclusions that the physical evidence was consistent with Kevin Cofer’s version of events and the prosecution’s theory that the shots were fired from within the car. * * * * Counsel’s failure to obtain an expert to testify regarding the inconsistencies between the physical evidence and the conclusion that the shots were fired from within the car and to challenge the reliability and credibility of the tests conducted by Officer Finor constituted deficient performance. Id. at 3-4 (emphasis added). In support of this claim, appellant attached to his supplemental petition an affidavit from Lieutenant William N. Welch, a “firearms identification” consultant and retired Maryland State Trooper, stating his opinion that it was “highly unlikely” that two cartridge cases found in the street near the Taurus were fired “from within” the vehicle. While appellant alleged in support of his claim that Lieutenant Welch would have testified that at least two of the shots were most likely fired from outside the Taurus, this allegation is not the issue or grounds for the relief he requested. The Commonwealth is correct in noting that appellant did not plead in his PCRA petition “the theory that a defense ballistician should have been called at trial to testify that the gunshots were likely fired from the driver’s side of the station wagon.” Commonwealth’s Brief at 10 (emphasis added) (other emphasis omitted). As we explained in (Ronald) Collins, however, “[t]he theories or allegations in support of the ground [for relief] are simply a subset of the issue presented.” 888 A.2d at 570. As the above-quoted recitations of the issue in his PCRA petition make clear, appellant’s claim that trial counsel was ineffective for failing to obtain his own ballistics expert was supported by several allegations, including not just that such expert would have refuted Officer Finor’s conclusion that the shots were fired inside the Taurus, but also that such expert testimony would have: (1) challenged the reliability and credibility of the test results upon which the Commonwealth relied; and (2) undermined the testimony of Commonwealth witness Kevin Cofer, the driver of the Taurus. As for the Commonwealth’s reliance upon Wilson, we agree with appellant that this case is distinguishable. On appeal in Wilson, the appellant claimed that the Commonwealth failed “to provide exculpatory evidence relating to [Commonwealth witness Edward] Jackson’s prior crimen falsi conviction for impersonating a public servant” and “mental health evaluations of Jackson and [Commonwealth witness Jeffrey] Rahming that purportedly could have been used to impeach them.” Wilson, 861 A.2d at 927. Although Wilson’s PCRA petition included a claim of improperly withheld discoverable evidence, the petition did not identify Jackson’s crimen falsi conviction or the mental health evaluations of Jackson and Rahming as the evidence allegedly withheld. Instead, in the petition, Wilson claimed that the Commonwealth withheld evidence of “coercion and threats by [the police] directed against Jackson, Rahming, and [a third Commonwealth witness].” Id. at 928. To state the grounds for the relief he requested in his PCRA petition, Wilson had to identify the evidence that he was alleging the Commonwealth withheld — i.e., “the Commonwealth should have provided x evidence.” In contrast, in the case sub judice, at least for purposes of mere pleading, appellant did not necessarily need to explain how Lieutenant Welch would have refuted the Commonwealth’s case against appellant in order to state that his request for relief was based on trial counsel’s failure to hire Welch or some other independent ballistics consultant. More importantly, at the PCRA hearing, appellant developed the “driver as shooter” theory by eliciting opinion testimony from Lieutenant Welch that it was “highly unlikely” that the shots that killed Graves came from the backseat of the Taurus. Notes of Testimony (“N.T.”), 10/7/04 (a.m.), at 53. Therefore, we reject the Commonwealth’s argument that appellant waived this ineffectiveness claim. In denying relief on the merits of this claim, the PCRA court cited the strategic reasons testified to by trial counsel at appellant’s PCRA hearing for not retaining a ballistics expert. In particular, the court cited: (1) trial counsel’s desire to avoid the prospect of his own expert confirming the Commonwealth’s theory that the gun had been fired from the backseat of the Taurus; and (2) trial counsel’s focus on attempting to create reasonable doubt through cross-examination of the Commonwealth’s witnesses. As for prejudice, the PCRA court cited the PCRA hearing testimony of Lieutenant Welch conceding that the ballistics evidence could support the Commonwealth’s theory that the shots were fired from the backseat of the Taurus. Consequently, the court concluded, trial counsel’s failure to present at trial the testimony of Lieutenant Welch or another independent ballistician did not result in prejudice to appellant’s case. Appellant argues that the strategic reasons relied upon by the PCRA court for counsel’s failure to call an expert such as Lieutenant Welch are unreasonable. As for trial counsel’s desire to avoid the prospect of his own expert confirming the Commonwealth’s theory that the gun had been fired from the backseat of the Taurus, appellant argues that this reason fails to account for former Rule of Criminal Procedure 305, which, at the time of appellant’s trial, allowed the defense to shield discovery of expert reports so long as the defense expert was not called to testify at trial. With respect to trial counsel’s focus on attempting to create reasonable doubt through cross-examination of the Commonwealth’s witnesses, appellant complains that trial counsel’s cross-examination of Officer Finor was itself ineffective and that it would not have been had trial counsel consulted with a ballistics expert like Lieutenant Welch. Finally, appellant disputes the PCRA court’s conclusion that failing to call Lieutenant Welch or some other expert did not prejudice appellant, insisting that “none of the ‘concessions’ that Mr. Welch made at the PCRA hearing were devastating to the defense.” Appellant’s Brief at 26. Appellant maintains that, if presented at trial, Lieutenant Welch’s testimony “might have influenced” the jury’s verdict. Id. The Commonwealth defends both of the reasons cited by the PCRA court as a reasonable strategy for trial counsel’s decision not to call a ballistics expert such as Lieutenant Welch to testify for the defense. Citing Commonwealth v. Wallace, 555 Pa. 397, 724 A.2d 916 (1999) and Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984), the Commonwealth argues that trial counsel’s decision to rely on cross-examination of the Commonwealth’s witnesses was a reasonable strategy. This approach, the Commonwealth contends, allowed counsel to attempt to create reasonable doubt by shifting suspicion away from appellant and, simultaneously, in two other directions. On the one hand, trial counsel elicited testimony from the Commonwealth’s expert witnesses that the shots could have been fired by Kevin Cofer from the driver’s seat. At the same time, counsel was able to argue, based on two cartridge casings found outside the Taurus as well as testimony from Commonwealth witnesses, that the shots could have been fired by a member of the “Boys from the Bottom,” a West Philadelphia gang that had beaten Graves the day before the murder as punishment for allegedly stealing a car from one of its members. In response to appellant’s reliance on former Rule 305, the Commonwealth concedes that trial counsel “perhaps could have attempted to structure his discussions with the hypothetical expert in such a way as to avoid mandatory discovery obligations.” Commonwealth’s Brief at 17. Nevertheless, the Commonwealth contends, trial counsel “could not have ensured that the trial court would not issue a discretionary discovery order.” Id. The Commonwealth further argues that, in addition to being reasonable, trial counsel’s decision not to hire his own ballistics expert was not in itself prejudicial. The Commonwealth contends that Lieutenant Welch’s testimony-particularly his opinion that it would have been awkward for someone sitting “directly behind” Graves to shoot him-would not have been helpful when considered in conjunction with appellant’s own statement to police, telling them that he had been sitting not “directly behind” Graves but in the middle of the backseat. We agree with the Commonwealth that trial counsel did not act in a constitutionally unreasonable fashion in choosing to cast suspicion simultaneously on both Cofer and the supposed Boys from the Bottom gang rather than attempt to find a competing defense ballistician to paint Cofer as the only possible perpetrator. The Commonwealth had the sole burden of proof at trial. By eliciting testimony from Commonwealth witnesses about the feud between Graves and the Boys from the Bottom, trial counsel was able to emphasize in closing argument that, if anyone had a motive to kill Graves, it was members of the Boys from the Bottom, not appellant. See, e.g., N.T., 5/17/93, at 733-34 (“Motive. What do we know about this case? We know that Mr. Graves had a fight with people from The Bottom, everybody says that, we all agree____There is no evidence in this world to suggest that Mr. Collins ever had a motive, a reason, a will to do what happened to [Mr. Graves].”); id. at 737 (“If anyone had a motive [for killing Graves] it is the ‘people Down The Bottom’.”). At the same time, in the absence of any defense expert testimony narrowing the potential list of suspects, trial counsel was able to cast suspicion in his closing argument on Kevin Cofer as well. See, e.g., id. at 729 (“What does Kevin Cofer have to hide? I think that should be the paramount question, ladies and gentlemen, regarding this case.”); id. at 731 (“What is this man trying to hide? Did Kevin Cofer render aid? The man with nothing to hide? What did he do? Your recollection prevails. He fled. He fled.”); id. at 745-46 (“We don’t have to prove a case against Kevin Cofer, but there is reasonable doubt.”). In his PCRA hearing testimony, when asked whether he had made a strategic decision not to consult with a ballistics expert, trial counsel confirmed that he “made a strategic decision to cross-examine witnesses” presented by the Commonwealth instead, in order “to try to create a reasonable doubt and have Mr. Collins found not guilty.” N.T., 10/8/04, at 69; see also id. at 120-21 (trial counsel’s affirming the strategic basis for his determination not to call a ballistics expert). Therefore, because appellant failed to show that trial counsel lacked a reasonable strategic basis for choosing not to call a ballistics expert, his underlying claim fails, and his claim that appellate counsel was ineffective for failing to raise this issue necessarily fails as well. B. Trial Counsel’s Failure to Investigate Conflict of Interest Appellant next claims that direct appeal counsel was ineffective for failing to raise trial counsel’s ineffectiveness for failing to disclose to appellant an “actual conflict” of interest that compromised counsel’s ability to zealously represent appellant. Appellant’s Brief at 44. Appellant alleges that while trial counsel, Louis Savino, Esquire, represented him in the instant case, Attorney Savino was also representing Aaron Montague (a.k.a. “Little Man”), whose ear victim Andre Graves allegedly stole shortly before he was murdered, at least according to a police statement provided by Graves’ friend, Charles Brown. According to appellant, Brown’s statement “put [Savino] on notice that Little Man ... had a clear motive for murdering Mr. Graves.” Id. at 45. Appellant further alleges that, due to this supposed “actual conflict” of interest, Savino never introduced evidence at appellant’s trial that Graves stole Montague’s car, contending that such evidence would have established a motive by another person for Graves’ murder. In addition, appellant argues that “[t]he PCRA court’s ruling on this issue should be reversed because it applied the wrong standard in assessing trial counsel’s conflict.” Id. at 44. In response, the Commonwealth contends that the purported conflict of interest on the part of trial counsel is illusory. Conceding that Attorney Savino represented Montague in two unrelated matters, the Commonwealth argues that neither matter could have affected Savino’s performance at appellant’s trial because the first matter concerned a drug possession conviction and ended nine months before appellant’s trial, while the second matter was an aggravated assault case that arose after appellant’s trial. Additionally, the Commonwealth emphasizes that, at appellant’s trial, Savino attempted to cast suspicion on the Boys from the Bottom, the gang of which Montague was leader, and simply lacked sufficient evidence to single out Montague himself as the perpetrator. Even assuming Savino was ineffective, the Commonwealth argues, direct appeal counsel could not reasonably have been expected to determine the identity of “Little Man,” whom in a statement a single witness named as the owner of the car Graves allegedly stole — let alone investigate a potential connection between “Little Man” and Savino — because direct appeal counsel had no reason to believe that any such connection existed. In its opinion, the PCRA court noted that: (1) Attorney Savino testified at the PCRA hearing that he had not viewed Montague as a suspect in Graves’ murder; (2) Savino’s representation of Montague at Montague’s sentencing healing predated Savino’s representation of appellant; (3) both defense counsel and the Commonwealth stipulated at the hearing that the name Aaron Montague is not mentioned anywhere in the trial discovery in appellant’s case; and (4) Savino’s representation of Montague and of appellant involved completely unrelated charges. Accordingly, the court found that Montague’s and appellant’s interests “did not diverge with respect to a material fact or legal issue or to a course of action.” PCRA Ct. Op. at 38. ' Finding no arguable merit in appellant’s underlying claim of trial counsel ineffectiveness, the court concluded that direct appeal counsel was not ineffective for failing to raise the claim. An appellant cannot prevail on a preserved conflict of interest claim absent a showing of actual prejudice. Commonwealth v. Karenbauer, 552 Pa. 420, 715 A.2d 1086, 1094 (1998). Nevertheless, we presume prejudice when the appellant shows that trial counsel was burdened by an “actual”— rather than mere “potential” — conflict of interest. Commonwealth v. (Thomas) Hawkins, 567 Pa. 310, 787 A.2d 292, 297 (2001). To show an actual conflict of interest, the appellant must demonstrate that: (1) counsel “actively represented conflicting interests”; and (2) those conflicting interests “adversely affected his lawyer’s performance.” Id. at 297-98 (quoting Commonwealth v. Buehl, 510 Pa. 363, 508 A.2d 1167, 1175 (1986) (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980) and holding that “[a]ppellant’s defense was not prejudiced by the fact that, at a prior time, his counsel had represented a Commonwealth witness”)). Clients’ interests actually conflict when “during the course of representation” they “diverge with respect to a material factual or legal issue or to a course of action.” Commonwealth v. Padden, 783 A.2d 299, 310 (Pa.Super.2001); Commonwealth v. Toro, 432 Pa.Super. 383, 638 A.2d 991, 996 (1994); In Interest of Saladin, 359 Pa.Super. 326, 518 A.2d 1258, 1261 (1986). We first address appellant’s assertion that the PCRA court applied the wrong standard in assessing the merits of the underlying claim. As appellant notes, to succeed on his claim that trial counsel was burdened with a conflict of interest, appellant must show that the interests of counsel’s two clients actually conflicted. Appellant defines an actual conflict as occurring when the two clients’ interests “diverge with respect to a material factual or legal issues [sic] or to a course of action.” Appellant’s Brief at 44 (quoting Saladin, supra). This is the same definition of an actual conflict that the PCRA court applied below. See PCRA Ct. Op. at 38 (taking same quotation from Toro, supra, that appears in Saladin). Therefore, notwithstanding appellant’s assertion that the PCRA court applied the wrong standard to his underlying conflict-of-interest claim, appellant can prevail only if the PCRA court’s application of the definition of actual conflict is unsupported by the record sub judice. As the PCRA court noted, Attorney Savino’s first representation of Montague occurred on July 7, 1992, prior to Graves’ murder, and consisted of an appearance at a sentencing hearing in Philadelphia Municipal Court in connection with a drug offense. See N.T., 10/8/04, at 53, 102-03; PCRA Petition, Exhibit 4. Savino’s representation of Montague in this matter ended on July 22, 1992, nine days after Graves’ murder, when Scott DiClaudio, Esquire, another attorney from Savino’s office, appeared on behalf of Montague at another sentencing hearing. See N.T., 10/8/04, at 47, 49. Savino next represented Montague in an unrelated matter at a hearing in Municipal Court on December 31, 1993, more than seven months after appellant’s trial for Graves’ murder. See id. at 103; PCRA Petition, Exhibit 4. Appellant does not allege that Savino represented Montague at any time between July 22, 1992 and appellant’s trial. On July 19, 1992, three days before Attorney Savino’s representation of Montague in the unrelated drug case ended, Charles Brown gave his police statement alleging that Graves stole a car owned by “Little Man.” See N.T., 10/8/04, at 35-36; PCRA Petition, Exhibit 1 at 3. As appellant notes, when Savino ultimately read Brown’s statement, Savino knew that this “Little Man” “could be” the same Little Man whose real name was Aaron Montague, the same Aaron Montague on whose behalf Savino had appeared in court on July 7th. N.T., 10/8/04, at 36. Nevertheless, Savino could not have read Brown’s statement before August 18, 1992, which is when he received the pre-trial discovery materials in appellant’s case from the prosecution, see id. at 104-05, and appellant alleges no other basis upon which Savino should be charged with notice of the supposed potential conflict of interest.' By August 18th, however, Savino was no longer representing Montague, Savino’s involvement in that case having ended nearly one month earlier. Accordingly, the PCRA court did not err in determining that appellant had failed to show an actual conflict of interest and that, therefore, there was no basis upon which to presume that prejudice actually resulted to appellant from Savino’s prior representation of Montague. Because appellant’s underlying claim of trial counsel ineffectiveness lacks arguable merit, his claim that direct appeal counsel was ineffective for failing to raise the conflict-of-interest claim necessarily fails. C. Admission of Lead Residue Test Results Appellant next claims that direct appeal counsel was ineffective for failing to argue that the trial court erred in denying a defense motion for either: (1) exclusion of test results introduced by the Commonwealth showing lead residue on the Taurus’ passenger seat headrest; or (2) a continuance to allow defense counsel to obtain an expert who might provide testimony countering this evidence. Appellant alleges that the prosecution “ambushed” the defense with the lead residue test results by failing to provide them to the defense until the second day of trial (Appellant’s Brief at 28), even though “the police had the results five days before [then]” (id. at 29). Appellant further avers that the trial court’s denial of trial counsel’s motion “crippled” the defense because trial counsel had already committed to the theory that the shots were fired from outside the Taurus. Id. at 28. Citing Commonwealth v. Metzger, 498 Pa. 678, 450 A.2d 981 (1982), appellant contends that the trial court’s ruling deprived him of due process, a fair trial, and the effective assistance of counsel. In response, the Commonwealth argues that there was no underlying discovery violation because the prosecutor turned the test results over to the defense on the same day he obtained them from the police chemist. In any event, the Commonwealth contends, even if the trial court had granted a continuance, defense counsel would not have hired a ballistician because he had a reasonable strategic basis for not doing so. See supra at 12-13. Moreover, even if defense counsel had hired a ballistician, the Commonwealth insists, such expert could not have refuted the incontrovertible presence of lead residue on the headrest, which, even Lieutenant Welch agreed in his PCRA testimony, meant that the shots had been fired at close range. The PCRA court determined that appellant was not entitled to relief on this claim because trial counsel testified at the PCRA hearing that he chose not to obtain a ballistics expert for strategic reasons. The PCRA court distinguished Metzger, reasoning that the Commonwealth’s lead residue test results in the instant case did not completely undermine the defense theory of the case. In any event, the PCRA court determined, the Commonwealth did not commit a discovery violation, as it “turned over the [lead residue] report as soon as it became available.” PCRA Ct. Op. at 42; see also id. at 40 (citing testimony indicating that Commonwealth disclosed report on same day it was prepared). Pennsylvania Rule of Criminal Procedure 573 provides, in pertinent part, as follows: Rule 573. Pretrial Discovery and Inspection (B) Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant’s attorney to inspect and copy or photograph such items. * * * * (e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth; * * * * (D) Continuing Duty to Disclose. If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material, or witness. * * * * Pa.R.Crim.P. 573 (emphasis added). The Commonwealth does not violate Rule 573 when it fails to disclose to the defense evidence that it does not possess and of which it is unaware. Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 97 (2004) (citing Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997)). As the text of Rule 573(B)(1) suggests, when the evidence is exclusively in the custody of police, possession is not attributed to the Commonwealth for purposes of Rule 573. Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1142 (2001). Whether the Commonwealth’s failure to disclose evidence that is exclusively in police custody constitutes a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), of course, is a different matter. If the undisclosed evidence implicates Brady (i.e., if it is favorable to the accused and its non-disclosure resulted in prejudice to his case), then the Commonwealth is charged with its possession even while it is exclusively in the custody of police. Kyles v. Whitley, 514 U.S. 419, 437-38, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995); Burke, 781 A.2d at 1142 & n. 6 (making this distinction between Brady cases and Rule 573 cases). Although appellant claims that the Commonwealth’s failure to disclose the lead residue test results before the second day of trial prejudiced his case, appellant does not allege that the evidence itself was favorable to his defense (as it obviously was not). Accordingly, appellant’s ineffectiveness claim can only be bottomed upon an alleged violation by the Commonwealth of Rule 573 rather than Brady. Thus, the Kyles rule does not apply to the instant claim, and, even if true, appellant’s allegation that “the police lab knew the results of the testing several days before the start of trial” (Appellant’s Brief at 29) would be unavailing. Appellant does not dispute the PCRA court’s finding that the Commonwealth disclosed the lead residue report on the very same day it was obtained, nor does he allege that the prosecutor was aware of the test results before that time, see id. (conceding that “[i]t is unclear when Mr. Costanzo (the ADA) knew the results of the testing”) (emphasis omitted). Therefore, the trial court did not err in denying the defense motion to exclude the test results or for a continuance to allow defense counsel to obtain an expert who might provide testimony countering this evidence. Because the underlying claim lacks arguable merit, appellate counsel was not ineffective for failing to raise it on appeal. D. Notice to Defense of Removal of Items from Taurus and of Return of Taurus to Owner Appellant next claims that direct appeal counsel was ineffective for failing to argue on direct appeal that appellant’s right to due process was violated by the Commonwealth’s failure: (1) to notify the defense prior to jury selection that various items had been removed from the Taurus and were available for testing (“notice-ol-removal claim”); and (2) to preserve the Taurus for a defense inspection (“car-preservation claim”). Citing Pa.R.Crim.P. 573(B)(1)(f) and California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), appellant argues that, as part of “routine pre-trial discovery,” the Com monwealth was obliged to produce a property receipt indicating that the Commonwealth had removed, inter alia, the passenger-side headrest from the Taurus. Appellant’s Brief at 40 (developing notice-of-removal claim). As support for his car-preservation claim, appellant also relies upon Trombetta, insisting that, by releasing the Taurus to its owner, the Commonwealth prevented the defense from conducting testing that “could have disclosed evidence refuting the prosecution’s theory that gunshots were fired from the back seat area.” Id. at 42. As a result of the Commonwealth’s failure either to provide notice of its removal of the headrest or to preserve the Taurus for defense inspection, appellant contends, “[t]rial counsel chose his defense based on an incomplete discovery record, which ensured that he would be subject to trial by ambush.” Id. at 43. Appellant does not allege that he ever requested that the Taurus either be preserved, or made available, for defense inspection. In response, the Commonwealth contends that the instant claim of ineffective assistance of appellate counsel fails because appellant failed to raise either of the two underlying claims before the trial court, noting that appellant does not presently argue that trial counsel was ineffective for such failure. In any event, the Commonwealth argues, both the notice-of-removal claim and the car-preservation claim lack merit. With respect to the notice-of-removal claim, the Com monwealth denies that prejudice to appellant resulted and, in any case, notes that appellant never requested access to the items that the Commonwealth removed from the Taurus. As for appellant’s car-preservation claim, the Commonwealth emphasizes that the Taurus had no exculpatory value. Finally, although it is not helpful to the Commonwealth’s case, the Commonwealth laudably reminds us of Commonwealth v. Deans, 530 Pa. 514, 610 A.2d 32, 34 (1992), in which this Court ordered the suppression of evidence concerning an allegedly forged lottery ticket because the ticket constituted “the primary evidence” against the defendant and was destroyed before the defense could examine it. The Commonwealth urges us to reconsider Deans, contending that it is contrary to the U.S. Supreme Court’s subsequent decision in Illinois v. Fisher, 540 U.S. 544, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam) and was not decided on independent state grounds, and, in any event, is inapposite. In his reply brief, appellant denies that he waived his two underlying claims for failing to present them before the trial court. Appellant asserts that he could not have raised either claim before the trial court because the facts in support of the claims were known only to the Commonwealth and did not become available to him until the PCRA hearing. As for the merits of the claims, appellant does not address Commonwealth v. Deans or Illinois v. Fisher in his reply brief. After determining that appellant failed to prove that the police withheld exculpatory evidence or acted in bad faith, the PCRA court concluded that neither claim underlying the instant ineffectiveness claim had arguable merit. In particular, the court noted that the Commonwealth “turned over the results from the tests done on the car as soon as they became available,” thereby providing appellant with an opportunity to attack the reliability and accuracy of the test results. PCRA Ct. Op. at 49. The court further noted that the Taurus was released to its owner “[i]n accordance with standard police procedure.” Id. The central alleged facts forming the basis of appellant’s underlying due process claim are: (1) the Commonwealth’s failure to timely notify the defense of the removal of the headrest from the Taurus; and (2) the Commonwealth’s failure to preserve the Taurus for a defense inspection. Notwithstanding appellant’s assertion in his reply brief, the defense first became aware of these facts long before the PCRA hearing. In fact, as appellant notes in his initial brief, it was on May 5,1993, the second of three days of jury selection, that trial counsel learned of the removal of the items from the Taurus. See Appellant’s Brief at 39 (citing N.T., 5/7/93, at 103 (referencing trial counsel’s awareness of same two days pri- or)). Likewise, it was on May 10, 1993, the second day of appellant’s five-day trial, that trial counsel received a copy of the report of the lead residue test police conducted on the headrest. N.T., 5/10/93, at 345. Therefore, the record belies appellant’s bald assertion in his reply brief that “[t]he facts underlying his due process claim were not available to prior counsel” (Reply Brief at 17). Moreover, appellant’s theory depends upon an assumption that the defense was entitled to access to the Taurus in a relatively undisturbed state. That is a claim that trial counsel obviously could have forwarded by requesting such access, but he did not. Accordingly, to the extent it relies on the Commonwealth’s failure to notify the defense of the removal of the headrest, appellant’s claim that direct appeal counsel was ineffective for failing to raise the underlying due process claim fails because it does not address trial counsel’s ineffectiveness for failing to raise the due process claim before the trial court. Turning to appellant’s car-preservation claim, consistently with former Rule of Criminal Procedure 305(B) as it was numbered at the time of appellant’s trial, Rule 573(B) provides, in pertinent part as follows: Rule 573. Pretrial Discovery and Inspection (B) Disclosure by the Commonwealth. (1) Mandatory. In all court cases, on request by the defendant ... the Commonwealth shall disclose to the defendant’s attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the de fendant’s attorney to inspect and copy or photograph such items. (f) any tangible objects, including documents, photographs, fingerprints, or other tangible evidence; * * * * Pa.R.Crim.P. 573(B) (emphasis added). Appellant does not allege that he ever actually requested a defense inspection of the Taurus. Therefore, appellant failed to trigger any mandatory discovery obligation on the part of the Commonwealth with respect to the Taurus, and appellant’s car-preservation claim necessarily fails. Appellant’s reliance on California v. Trombetta, supra, is equally unavailing. Trombetta was an appeal from the conviction of two motorists for drunk driving. At trial, the State introduced the results of the defendants’ blood-alcohol content tests, and the defendants sought to suppress the test results, relying on the State’s failure to preserve the breath samples used in the test. After their convictions were overturned on appeal, the High Court reversed, citing three reasons. First, “the officers here were acting in good faith and in accord with their normal practice,” the Court determined, adding that “[the record contains no allegation of official animus towards] [the defendants] or of a conscious effort to suppress exculpatory evidence.” Trombetta, 467 U.S. at 488, 104 S.Ct. 2528. Second, the defendants failed to show that the evidence of their blood-alcohol content “possessed] an exculpatory value that was apparent before the evidence was destroyed.” Id. at 489, 104 S.Ct. 2528. And third, the defendants failed to show that they “would be unable to obtain comparable evidence by other reasonably available means.” Id. Although the Trombetta Court suggested that the defendants’ failure to show bad faith was less important than its failure to make the other two showings, see id. at 488-89, 104 S.Ct. 2528 four years later, in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), the High Court clarified that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58, 109 S.Ct. 333 (so phrasing its holding in the case); accord Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 676 (1999) (discussing Youngblood). Youngblood was reaffirmed only four years ago in Illinois v. Fisher, supra. Fisher presented the question of whether the “Due Process Clause required the dismissal of criminal charges because the police, acting in good faith and according to normal police procedures, destroyed evidence that [the defense] had requested more than 10 years earlier in a discovery motion.” Fisher, 540 U.S. at 545, 124 S.Ct. 1200. Fisher appealed his conviction of possession of cocaine after the trial court denied his motion to dismiss the charge based on the State’s destruction, “acting in accord with established procedures,” of the substance seized from him during his arrest. Id. at 546, 124 S.Ct. 1200. On appeal, the Appellate Court of Illinois reversed Fisher’s conviction, holding that the Due Process Clause required dismissal of the charge, even though there was “nothing in the record to indicate that the alleged cocaine was destroyed in bad faith.” Id. at 546-47, 124 S.Ct. 1200. In so holding, the Appellate Court acknowledged Youngblood’s bad-faith requirement but determined that Youngblood was not controlling “because, unlike in Youngblood, the destroyed evidence provided [Fisher]’s only hope for exoneration and was essential to and determinative of the outcome of the case.” Fisher, 540 U.S. at 547, 124 S.Ct. 1200 (citation and internal quotation marks omitted). After the Supreme Court of Illinois denied leave to appeal, the U.S. Supreme Court granted certiorari and summarily reversed, specifically disagreeing with the Illinois Appellate Court’s grounds for distinguishing Youngblood. Leaving little room for doubt, the High Court clarified that “the applicability of the bad-faith requirement in Youngblood depended not on the centrality of the contested evidence to the prosecution’s case or the defendant’s defense, but on the distinction between ‘material exculpatory’ evidence and ‘potentially useful’ evidence.” Fisher, 540 U.S. at 549, 124 S.Ct. 1200. As previously noted, this Court in Deans, supra, ordered the suppression of evidence concerning an allegedly forged lottery ticket based on “the specific facts” of that case. In so holding, although the Deans Court did mention that the lottery ticket was “the primary evidence” against the defendant, such was not our sole grounds for distinguishing the case from Arizona v. Youngblood. Rather, we noted that Deans “differfed] from most other cases regarding lost evidence in that Deans’ lottery ticket was lost before he was charged with committing an offense” and that, therefore, “fa]t no time did he or defense counsel have an opportunity to examine the allegedly forged ticket.” Deans, 610 A.2d at 35 (citing various other cases involving loss or destruction of evidence after a defendant had been arrested and charged, thus allowing defense opportunity to request expert examination of prosecution’s evidence while evidence was available). Moreover, the Deans Court noted that the due process inquiry depends also on the nature of the tests conducted on the evidence at issue. While some types of tests {e.g., chemical analyses) yield degrees of probability “sometimes amounting almost to a certainty,” others {e.g., psychiatric examinations) yield far more controversial results. Id. When viewed in these parameters, the authenticity of the lottery ticket in Deans “appearfed] to be at least somewhat subjective.” Id. It was for these reasons that we explicitly limited our holding in Deans to “the specific facts in this record.” Id. Instantly, appellant alleges in his Brief “a pattern of nondisclosure generally and particularly focused on evidence from the car.” Appellant’s Brief at 41. In particular, in addition to reiterating the allegations set forth above, appellant alleges that the police: (1) failed to test the items removed from the interior of the Taurus in a timely fashion; (2) failed to swab the interior of the Taurus for gunshot residue; and (3) lost certain witness statements. Appellant’s allegations do not amount to the kind of “official animus” or “conscious effort to suppress” that warrants a finding of bad faith on the part of the police within the meaning of Trombetta. Moreover, appellant fails to challenge the PCRA court’s finding that the Taurus was released to its owner “[i]n accordance with standard police procedure,” nor does he explain his failure to make an affirmative request for a defense inspection of the Taurus. Therefore, we agree with the Commonwealth that the instant case is readily distinguishable from Deans. More importantly, we find Fisher controlling and, accordingly, conclude that appellant’s underlying due process claim lacks arguable merit. Therefore, appellant’s derivative ineffectiveness claim necessarily fails. E. Discrimination in Jury Selection Appellant’s final ineffectiveness claim is that direct appeal counsel was ineffective for failing to argue that the trial prosecutor violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) by discriminating against African-Americans in jury selection. Appellant contends that the race-neutral reasons that the trial prosecutor gave at the PCRA hearing for striking African-American venirepersons were pretextual in nature. Appellant also complains that he was prejudiced by the Commonwealth’s allegedly untimely ' production of notes that the prosecutor took during voir dire. In response, the Commonwealth first argues that this claim fails because trial counsel failed to raise a Batson claim at trial and appellant does not now allege that trial counsel was ineffective for such failure. On the merits, the Commonwealth contends , that appellant’s claim fails for two independent reasons: (1) he failed to establish a prima facie case of racial discrimination; and, in any event, (2) the trial prosecutor offered race-neutral reasons at the PCRA hearing for his peremptory challenges, and the PCRA court credited those reasons. . In its opinion, the PCRA court first noted that both appellant and the victim were black, that the petit jury was majority-black, and that the fact that a majority of the jurors were of the same race as the Batson claimant weighed against granting relief. Without determining whether appellant had established a prima facie case of discrimination, the PCRA court proceeded to find that the trial prosecutor had offered race-neutral reasons for exercising all of his peremptory challenges and that appellant had failed to prove purposeful discrimination. In his reply brief, appellant denies that he failed to argue that trial counsel was ineffective for failing to raise a Batson claim at trial. “To the extent that there was any ambiguity whatsoever in the Initial Brief,” appellant summarily asserts: “(a) that the Batson claim itself is of arguable merit; (b) that trial counsel had no reasonable basis for failing to object to the prosecutor’s strikes; [and] (c) that it is reasonably likely that, had counsel objected, the outcome of his trial would have been different[.]” Reply Brief at 22. “[I]n order to succeed on an unpreserved claim of racial discrimination in jury selection ... a post-conviction petitioner may not rely on a prima facie case under Batson, but must prove actual, purposeful discrimination by a preponderance of the evidence in addition to all other requirements essential to overcome the waiver of the underlying claim.” Commonwealth v. Uderra, 580 Pa. 492, 862 A.2d 74, 87 (2004) (emphasis added) (citation omitted). A claim is waived if it is raised for the first time in a reply brief. Commonwealth v. Wharton, 571 Pa. 85, 811 A.2d 978, 990 (2002). “[T]he mere incantation of the magic words of counsel ineffectiveness is insufficient to overcome waiver.” Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 609 (2007). Appellant does not dispute that trial counsel could have raised a Batson claim at trial. Therefore, appellant’s failure to address trial counsel’s ineffectiveness in his initial brief is fatal to his claim. Even if appellant could cure such failure by inserting a previously absent claim of trial counsel ineffectiveness in his reply brief (which he cannot), appellant’s boilerplate recitation in his reply brief of the three prongs of the test for ineffective assistance of trial counsel falls far short of the requisite developed arguments that trial counsel lacked a reasonable basis for failing to raise a Batson claim at trial and that counsel’s failure in this regard resulted in prejudice to appellant’s case. Because appellant’s underlying Batson claim is waived, his derivative claim of ineffective assistance of direct appeal counsel necessarily fails. II. CLAIMS OF PCRA COURT ERROR A. PCRA Court’s Denial of Evidentiary Hearing on Certain Ineffectiveness Claims Appellant next claims that the PCRA court erred in denying an evidentiary hearing with respect to certain other claims of ineffective assistance of direct appeal counsel. In death penalty cases, a PCRA court is required to allow a petitioner to develop the record with respect to any “genuine issues concerning any material fact.” Pa.R.Crim.P. 909(B). “Where the PCRA court determines that a hearing is required as to some, but not all, of the issues raised in a petition, the hearing may be limited to those issues.” Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 899 (2004). 1. Police statement and preliminary hearing testimony of Kevin Cofer In his first underlying issue based on the PCRA court’s denial of an evidentiary hearing, appellant claims that the PCRA court should have allowed him to develop the record regarding prior counsel’s failure to challenge the trial court’s admission of a statement provided to the police by Kevin Cofer, as well as testimony Cofer gave at a preliminary hearing, both of which implicated appellant in Graves’ murder. Appellant argues that the police statement and preliminary hearing testimony were inadmissible at trial because appellant was deprived of the opportunity to cross-examine Cofer about them, either at the preliminary hearing or at trial, where, appellant states, after disavowing the prior statement and testimony, Cofer invoked his Fifth Amendment right not to testify further. Appellant contends that he was substantially prejudiced by the admission of Cofer’s prior statement and testimony because they comprised “the Commonwealth’s only evidence that directly implicated Mr. Collins.” Appellant’s Brief at 54. The Commonwealth responds that the instant claim is frivolous. Citing Crawford v. Washington, 541 U.S. 36, 60, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) for the proposition that “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements,” the Commonwealth first emphasizes that appellant was “free to face and cross-examine [Cofer] at [trial].” Commonwealth’s Brief at 58. The Commonwealth specifically disputes appellant’s representation that Cofer invoked his Fifth Amendment right not to testify, noting that Cofer merely attempted to invoke it, after which the trial court properly compelled him to continue to testify. As an independent reason why the instant underlying claim fails, the Commonwealth cites Pa.R.E. 803.1(1) (“Inconsistent statement of witness”), noting that Cofer’s preliminary hearing testimony was given under oath at a formal legal proceeding and that his police statement was reduced to a writing, which Cofer signed and adopted. The PCRA court determined that both Cofer’s preliminary hearing testimony and his police statement were admissible at trial. PCRA Ct. Op. at 25 (applying Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7 (1992)). Pennsylvania Rule of Evidence 803.1(1) provides as follows: Rule 803.1. Hearsay exceptions; testimony of declarant necessary The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement: (1) Inconsistent statement of witness. A statement by a declarant that is inconsistent with the declarant’s testimony, and (a) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (b) is a writing signed and adopted by the declarant, or (c) is a verbatim contemporaneous recording of an oral statement. Pa.R.E. 803.1(1). Although Rule 803:1 was adopted subsequent to appellant’s trial, it merely codifies decisions of this Court announced prior thereto. See, e.g., Lively, 610 A.2d at 10. On July 14, 1992, the day after Graves’ murder, Cofer was interviewed by homicide detectives. After initially denying that he was present at Graves’ murder, Cofer informed the detectives that he, in fact, witnessed the shooting and that appellant was the shooter. Cofer provided a written statement to the detectives to this effect and signed each page of the statement. On August 5, 1992, Cofer testified at a preliminary hearing consistently with his July 14th police statement. On Friday, May 7, 1993, the Commonwealth called Cofer to testify at appellant’s trial. Although Cofer acknowledged during direct examination that he had told the detectives all the details contained in the statement, N.T., 5/7/93, at 124-67, Cofer also testified at trial that the police statement was essentially untrue — i.e., that he did not witness Graves’ murder and was not even present at the time, id. at 137-46. Later during direct examination, Cofer acknowledged that his testimony at the preliminary hearing was under oath and in the presence of appellant and appellant’s trial counsel. Id. at 172-73. Cofer subsequently testified, however, that he had lied at the preliminary hearing when testifying that he saw appellant shoot Graves. Id. at 177-85. Cofer further testified at trial that both his police statement and his preliminary hearing testimony were coerced by detectives and that he feared he would be charged with Graves’ murder if he did not provide information inculpating appellant. Id. at 116-17, 163, 203, 218-19. Appellant’s trial recessed for the day before the end of Cofer’s direct examination. When the prosecutor resumed direct examination of Cofer on Monday, May 10, 1993, Cofer immediately attempted to invoke his Fifth Amendment right not to testify. N.T., 5/10/93, at 227. The trial court, however, instructed Cofer to continue testifying, which he did. Id. at 231. Cofer’s direct examination concluded shortly thereafter, whereupon defense counsel began cross-examination. Defense counsel questioned Cofer extensively concerning the nature and circumstances of Cofer’s July 14, 1992 police statement. For example, during cross-examination, defense counsel elicited the following testimony from Cofer: that he did not remember having been read his Miranda warnings before he was questioned by detectives, N.T., 5/10/93, at 253; that the detectives told him they were going to “give [him] a homicide,” id.; that he had initially told detectives that he was not present at Graves’ murder and that this initial version of events was true, id. at 254; and that the detectives told him that appellant “was in another room telling them that [Cofer] had killed [Graves]” and that “[Assistant District Attorney] David Webb and [then-judge] Lynn[e] Abraham would see to it that [Cofer] got the homicide if [Cofer] didn’t cooperate,” id. at 255. Defense counsel also cross-examined Cofer extensively concerning the nature and circumstances of Cofer’s August 5, 1992 preliminary hearing testimony. For example, defense counsel elicited testimony from Cofer that, shortly before the preliminary hearing, the trial prosecutor told Cofer, “Maybe you ought to tell them that you seen a gun,” id. at 257, and that Cofer had testified falsely at the preliminary hearing out of fear of “get[ting] the homicide [him]self” because the detectives who interviewed him “said they would get a homicide on [him] if [he] didn’t cooperate,” id. at 258. Therefore, the record thoroughly belies appellant’s contention that Cofer was not “subject to cross-examination concerning [his prior] statements]” as required by Pa.R.E. 803.1. As the PCRA court determined, the additional prerequisites for admitting Cofer’s July 14, 1992 police statement were clearly satisfied, see Pa.R.E. 803.1(1)(a); Lively, supra, as were the additional requirements for admitting his August 5, 1992 preliminary hearing testimony, see Pa.R.E. 803.1(1)(b); Lively. There was no basis for trial counsel to object. Accordingly, because there is no genuine issue of material fact with respect to this underlying claim of trial court error, appellant’s derivative ineffectiveness claim did not warrant an evidentiary hearing in the PCRA court. 2. Lack of compt source instruction Appellant claims that the PCRA court erred in refusing to hold a hearing on appellant’s claim that prior counsel were ineffective for failing to raise the trial court’s failure to issue a corrupt source instruction to the jury in connection with Cofer’s testimony. Appellant argues that the jury could have reasonably inferred that Cofer was an accomplice in Graves’ murder (or actually committed it) based on Cofer’s conduct at trial as well as his testimony that “the police considered him a suspect in the murder” (Appellant’s Brief at 56) and that detectives threatened to arrest him for the murder and told him that appellant had implicated him in the crime. Appellant contends that, had the trial court instructed the jury that Cofer was a corrupt and polluted source, there is a reasonable likelihood that appellant would have been acquitted. In response, the Commonwealth first argues that a corrupt source charge would have been inconsistent with appellant’s defense that he played no role in Graves’ killing. In any event, the Commonwealth adds, appellant would not have been entitled to a corrupt source charge in connection with Cofer’s testimony because there was no evidence at all that Cofer was an accomplice to Graves’ murder, much less sufficient evidence to warrant such a charge. The PCRA court determined that there was no arguable merit to the underlying corrupt source instruction claim, finding that “there was no evidence presented that Kevin Cofer participated in the murder of Andre Graves.” PCRA Ct. Op. at 12. A corrupt source instruction advises the jury that if it finds that a certain witness who testified against the defendant was an accomplice of the defendant in a crime for which he is being tried, then the jury should deem that witness a “corrupt and polluted source” whose testimony should be considered with caution. Commonwealth v.(Roy) Williams, 557 Pa. 207, 732 A.2d 1167, 1181 (1999); accord Commonwealth v. Hackett, 534 Pa. 210, 627 A.2d 719, 724 (1993). The instruction is warranted only in cases in which there is sufficient evidence to present a jury question with respect to whether the witness is an accomplice. (Roy) Williams, 732 A.2d at 1181; Hackett, 627 A.2d at 724. Section 306(c) of the Crimes Code defines accomplice liability as follows: (c) Accomplice defined. — A person is an accomplice of another person in the commission of an offense if: (1) with the intent of promoting or facilitating the commission of the offense, he: (1) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or (2) his conduct is expressly declared by law to establish his complicity. 18 Pa.C.S. § 306(c). Accordingly, accomplice liability requires evidence that the person: (1) intended to aid or promote the substantive offense; and (2) actively participated in that offense by soliciting, aiding, or agreeing to aid the principal. Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1014 (2007), cert. denied,-U.S.-, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008). One merely present at the crime scene is not an accomplice, id., nor is one who merely helps an offender try to escape arrest or punishment an accomplice, Commonwealth v. Spence, 534 Pa. 233, 627 A.2d 1176, 1183 (1993); Hackett, 627 A.2d at 725. As evidence that Cofer was an accomplice in Graves’ murder, appellant cites the following: (1) Cofer’s testimony “that the police considered him a suspect in the murder”; (2) Cofer’s claim that detectives told him that they would arrest him for the murder and that appellant had implicated him in the crime; (3) Cofer’s temporary refusal to continue testifying at trial; and (4) defense counsel’s argument at trial that Cofer was the shooter. Appellant’s Brief at 56. Appellant does no more than baldly assert that this “evidence” was sufficient for the jury to reasonably conclude that Cofer was an accomplice in Graves’ murder; in fact, appellant fails even to mention the definition of an accomplice. Appellant’s failure to even attempt to show that the requirements of accomplice liability were met by actual evidence here is not surprising. To begin with, notwithstanding appellant’s contention to the contrary, Cofer himself, in fact, testified that the detectives told him that they did not believe appellant’s out-of-court accusation that Cofer was the shooter, N.T., 5/7/93, at 120, and when asked whether Cofer was ever told by detectives that he was a suspect in the case, Cofer said, “No,” N.T., 5/10/93, at 253. The fact that, during the police investí gation, appellant attempted to shift the blame from himself to Cofer, the only person other than himself and Graves who was present in the Taurus when Graves was killed, was not evidence either that Cofer intended to aid in Graves’ murder or that Cofer actively participated in the crime. Cofer’s sudden refusal to continue testifying at the end of his direct examination when trial resumed on Monday, May 10, 1993 after a weekend recess reflects, at most, his own subjective fear of prosecution, but that conduct was not evidence of his participation in the murder. Moreover, appellant cites no evidence to suggest that such supposed fear was objectively reasonable. In fact, in light of Cofer’s recantation of his preliminary hearing testimony and his police statement implicating appellant, Cofer’s subjective fear was more likely of retaliation by appellant, or of prosecution for perjury. See N.T., 5/7/93, at 168-69 (Cofer’s testimony as to his current fear of being killed in prison); Commonwealth v. (Rodney) Collins, 549 Pa. 593, 702 A.2d 540, 543 (1997) (noting admission at trial of two letters written by appellant to Cofer “press[ing] Cofer to recant or risk being branded a ‘snitch’ ”). Finally, defense counsel’s attempt to cast suspicion on Cofer at trial is unhelpful to appellant’s underlying corrupt source instruction claim, as “it is well-settled that arguments of counsel are not evidence,” Commonwealth v. Puksar, 951 A.2d 267, 280 (Pa.2008). Therefore, appellant has failed to raise a genuine issue of material fact with respect to this underlying ineffectiveness claim, and the PCRA court did not err in denying a hearing thereon. S. Reasonable doubt instruction Appellant next claims that the PCRA court erred in denying a hearing on his claim that prior counsel were ineffective for failing to argue that the trial court improperly instructed the jury concerning reasonable doubt. Appellant contends that, by instructing the jury that a reasonable doubt is “the kind of doubt that would restrain a reasonable man or woman from acting in a matter of importance to himself” (Appellant’s Brief at 59 (quoting N.T., 5/17/93, at 797) (emphasis appellant’s)), the trial court “improperly diminished the Commonwealth’s burden of proof and infringed upon the presumption of innocence” (id. at 58). Appellant submits that the trial court was required to instruct, as per Pa. Standard Criminal Jury Instructions § 7.01(3), that “[a] reasonable doubt is a doubt that would cause a reasonably careful and sensible person to hesitate before acting upon a matter of importance in his own affairs.” Appellant’s Brief at 59. The Commonwealth briefly counterargues that this underlying claim is based on a merely “semantical” distinction and is identical to a claim this Court rejected in Commonwealth v. Porter, 556 Pa. 301, 728 A.2d 890 (1999). The PCRA court deemed the claim lacking in arguable merit, noting that this Court had repeatedly refused to require the word “hesitate” over “restrain” in reasonable doubt instructions. We rejected this identical claim as recently as last year in our decision in Commonwealth v. Rios, 591 Pa. 583, 920 A.2d 790 (2007). In Rios, in denying relief on the claim that a trial court’s “use of the word ‘restrain’ rather than ‘hesitate’ set[ ] the bar for reasonable doubt higher and infringed upon the presumption of innocence,” id. at 806, this Court quoted our holding in Porter, supra, that the distinction between “hesitate” and “restrain before acting” is “de minimis” and that “such a subtle variation in phrasing would not be an abuse of the trial court’s discretion,” 728 A.2d at 899 (deeming claim “hyper-technical” and “semantical”). See also Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 255 (2006) (quoting Porter holding in denying relief on identical claim); Commonwealth v. Brown, 470 Pa. 274, 368 A.2d 626, 634 (1976) (denying relief on identical claim); Commonwealth v. Banks, 454 Pa. 401, 311 A.2d 576, 581 (1973) (same). Moreover, beginning decades before appellant’s trial, we have repeatedly expressed our approval of definitions of reasonable doubt in terms of a doubt that would “restrain a reasonable man (or woman) from acting....” Commonwealth v. Donough, 377 Pa. 46, 103 A.2d 694, 697 (1954); Commonwealth v. Sauders, 390 Pa. 379, 134 A.2d 890, 895 (1957); Commonwealth v. Burns, 409 Pa. 619, 187 A.2d 552, 561 (1963); Commonwealth v. Butler, 442 Pa. 30, 272 A.2d 916, 920 (1971); Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258, 261-62 (1974); Commonwealth v. (Thomas) Hawkins, 567 Pa. 310, 787 A.2d 292, 301-02 (2001). In light of this copious authority in existence at the time of appellant’s trial, the notion that prior counsel were ineffective for failing to challenge the court’s approved reasonable doubt instruction is frivolous. Therefore, the PCRA court did not err in denying an evidentiary hearing on this claim. A Admission of appellant’s letters to Kevin Cofer Appellant next claims that the PCRA court erred in denying a hearing on his claim that direct appeal counsel was ineffective for failing to argue that the trial court erred in admitting, without properly authenticating, two letters that appellant wrote to Cofer, imploring Cofer not to testify against him. Appellant submits that, after the prosecution introduced the letters at trial, Cofer denied having read or received them and appellant provided a handwriting exemplar that allegedly confirmed that appellant was not the author of the letters. Citing Pa.R.E. 901, the Commonwealth counterargues that the letters were authenticated “by their distinctive characteristics, taken in conjunction with the circumstances of the case, as having been written by [appellant].” Commonwealth’s Brief at 64-65. In particular, the Commonwealth notes that the letters: were mailed from the prison in which appellant was incarcerated; contained appellant’s unique seven-digit prison identification number; urged a course of conduct that would benefit appellant and only appellant; and identified appellant’s trial counsel by name. Citing our direct appeal opinion in this case, the Commonwealth further argues that, in any event, the letters were admitted not as evidence of appellant’s consciousness of guilt but to explain Cofer’s recantation of his prior statements implicating appellant. Id. at 65-66 (citing (Rodney) Collins, 702 A.2d at 544). Thus, the Commonwealth explains, the letters did not need to be authenticated as actually written by appellant but, rather, merely as purporting to have been written by appellant because even the latter would serve as persuasive evidence to explain Cofer’s recantation. In denying relief on this claim, the PCRA court noted numerous circumstances that together served to authenticate the letters, including, inter alia: that appellant’s name and address were on the return address of both envelopes; that both letters addressed Cofer as “Kabir/Kev,” which Cofer testified were his nicknames; and that the contents of the letters mentioned appellant’s trial counsel by name and otherwise connected the letters to appellant. The admission of evidence is a matter committed to the sound discretion of the trial court, and the decision to admit certain evidence will not be overturned absent an abuse of that discretion. E.g., Commonwealth v. Edwards, 588 Pa. 151, 908 A.2d 1139, 1156 (2006), cert. denied, 549 U.S. 1344, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007). Pennsylvania Rule of Evidence 901 provides, in pertinent part, as follows: Rule 901. Requirement of authentication or identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: !]: * * * (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances. * * * * Pa.R.E. 901. Although Rule 901 had not yet been adopted at the time of appellant’s trial, it is consistent with the Pennsyl vania jurisprudence on authentication that existed prior to appellant’s trial. See, e.g., Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316, 318-20 (1986) (noting as relevant circumstances such as “information in the contents of the writing that is known by the purported sender and the recipient, events preceding or following the execution or delivery of the writing, other communications by the purported sender prior to or following the execution or delivery of the document, [and] the appearance of the purported sender’s name or letterhead on the document”); see also Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1, 10 (1992) (citing Brooks for proposition that “[a] document may be authenticated by circumstantial evidence”); Stotz v. Shields, 696 A.2d 806, 809 (Pa.Super.1997) (same and noting that such circumstances are “myriad” and include “appearance, contents, and substance”). We agree with the Commonwealth that the trial court’s decision to admit the two letters was well within its discretion. The circumstances cited by the PCRA court and the Commonwealth are more than sufficient, when considered in their totality, to authenticate the letters. We further note that the first letter mentioned trial counsel’s name in the context of the defense’s trial strategy of shifting suspicion for the murder away from appellant and toward Cofer, N.T., 5/10/93, at 374-75; that the second letter referred to the first one, id. at 378; and that the letters were dated within several weeks of Cofer’s July 14, 1992 police statement, which the first letter referenced, id. at 376-77. Because appellant’s underlying claim of trial court error lacks arguable merit, his derivative ineffectiveness claim did not warrant an evidentiary hearing. 5. Appellant’s boilerplate request for new trial counsel In his fifth and final underlying issue based on the PCRA court’s denial of an evidentiary hearing, appellant claims that direct appeal counsel was ineffective for failing to argue that the trial court erred in failing to grant a timely hearing on appellant’s pre-trial petition for new appointed trial counsel. Appellant argues that the trial court wrongly relied on appellant’s statement to the court that he was satisfied with counsel’s representation because he only meant that he was satisfied with trial counsel’s advice to waive a motion to suppress. The Commonwealth offers four independent reasons why the instant claim does not entitle appellant to relief. Specifically, the Commonwealth contends that: (1) the claim is presented on a second page of appellant’s Statement of Questions Involved, in violation of Pa.R.A.P. 2116; (2) appellant fails to present any affidavit or other offer of proof specifying what allegations he would have raised at a hearing on his petition for new counsel; (3) a hearing was unwarranted because “any putative error could still be corrected” since the case had not yet proceeded to trial (Commonwealth’s Brief at 68); and (4) a pre-trial colloquy conducted by the trial court sufficed to provide appellant an opportunity to raise any concern he had with his representation. This last argument forwarded by the Commonwealth was the PCRA court’s basis for denying relief on the instant claim. “The decision of whether to appoint new counsel lies within the sound discretion of the trial court.” Commonwealth v. Spotz, 562 Pa. 498, 756 A.2d 1139, 1150 (2000) (citing Commonwealth v. Segers, 460 Pa. 149, 331 A.2d 462, 465 (1975)). A hearing on a motion for new counsel is not required where the defendant provides only a general averment of inadequate representation. See, e.g., Commonwealth v. (Raymond) Williams, 514 Pa. 62, 522 A.2d 1058, 1061 (1987). On collateral appeal, an appellant “who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which an appellate court can conclude that trial counsel may have, in fact, been ineffective. This Court will no longer consider claims of ineffective assistance of counsel in the abstract.” Commonwealth v. Floyd, 506 Pa. 85, 484 A.2d 365, 368 (1984) (quoting Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332, 1335 (1981)). On October 30, 1992, more than six months before trial, appellant filed three standardized forms in the trial court, namely: a Motion for Bill of Particulars; a Motion to Quash the Issuing Authority’s Transcripts, Lack of Credibility; and a Petition for Withdrawal of Counsel and Appointment of New Counsel. The new counsel petition read, in its entirety, as follows: TO THE HONORABLE JUDGES OF THE AYOYE [sic] SAID COURT: I, RODNEY COLLINS, Pro-se Petitioner in the foregoing action respectfully represents [sic] the following: (1) On 7-14-92, Petitioner was arrested and charged with a series of offenses arising out ot [sic] an alleged MURDER, having occurred in the city and county of Philadelphia. (2) During the PRE-HEARING proceedings of this matter, Petitioner was represented by LOUIS SAVINO, Esq., at the time of the aforementioned proceedings said counsel was ineffective at PRE-HEARING, proceedings. Petition for Withdrawal of Counsel and Appointment of New Counsel (filed Oct. 30, 1992) (emphasis added to indicate appellant’s written responses in blank spaces on form). As set forth in his Brief to this Court, appellant’s supposed grounds for an entitlement to new counsel that he would have explored at a hearing are that trial counsel had inadequately prepared for trial and was burdened by a conflict of interest due to his prior representation of Aaron Montague. We have already determined that trial counsel’s appearance on behalf of Aaron Montague at a sentencing hearing in an unrelated drug case did not create a conflict of interest that could have compromised counsel’s representation of appellant at his trial. With respect to trial counsel’s allegedly inadequate preparation for trial, appellant asserts that the trial court should have inquired into whether trial counsel: had investigated the facts of the case; had interviewed witnesses; and had investigated other suspects, including Aaron Montague. Appellant, however, did not include these allegations in his petition for new counsel and apparently never raised them before the trial court at any time. We find this Court’s decision in (Raymond) Williams, supra, instructive here. In Williams, the capital defendant wrote a letter to the trial court shortly before jury selection requesting withdrawal of his counsel “for the reason that he felt he would ‘not get proper representation from [counsel].’ ” 522 A.2d at 1061. Counsel actually joined in the request, stating that he and the defendant “wouldn’t be able to enjoy any kind of cooperation” and noting that the defendant had filed suit against him in federal court. Id. The trial court summarily denied the defendant’s request on the grounds that he “failed to state ‘substantial reasons’ why new counsel should be appointed.” Id. On appeal, this Court affirmed the denial “[i]n view of [the defendant’s failure to supply any reasons, much less substantial ones, why new counsel should be appointed.” Id. Instantly, appellant’s new counsel petition included the solitary bald assertion that trial counsel “was ineffective at prehearing proceedings.” Not only did appellant’s petition assert inadequate representation in generic fashion, similar to the petition that was summarily denied in Williams, but, even now, appellant fails to specify any way in which trial counsel was ineffective when representing him at any pre-trial proceeding. The broad allegations of trial counsel’s inadequate trial preparation that appellant alleges in his Brief to this Court are simply irrelevant to counsel’s effectiveness at pretrial proceedings. In sum, appellant now claims that the trial court should have allowed him to explore a pre-trial ineffectiveness allegation, the basis of which he never specified and, in any event, one that he now abandons in favor of the many allegations raised herein of counsel’s inadequate preparation for trial and deficient performance during trial. Because there is no genuine issue of material fact with respect to this frivolous underlying claim of trial court error, appellant’s derivative ineffectiveness claim did not warrant a hearing in the PCRA court. B. PCRA Discovery and Evidentiary Rulings Appellant next presents four claims based on alleged errors made by the PCRA court in certain discovery and evidentiary matters that arose during the PCRA hearing. 1. Testimony of Dana Cook Appellant first claims that the PCRA court erred in excluding the testimony of Dana Cook, an investigator employed by the defense, in support of appellant’s claim that trial counsel Savino was burdened with a conflict of interest. Appellant alleges that Ms. Cook would have testified that inmate James Drayton told her in 2000 that he overheard a 1992 conversation between Attorney Savino and Aaron Montague during which Savino told Montague that “he [Montague] did not need to worry about being a potential suspect [in the Graves murder] because Savino had everything under control.” Appellant’s Brief at 65. Appellant argues that Cook’s testimony would not have constituted double hearsay because neither statement would have been inadmissible. First, appellant contends that Savino’s statement to Montague was not hearsay because it was not offered to show that Montague was a potential suspect (or that Savino indeed “had everything under control”) but, rather, to show that Savino was aware of Montague’s connection to appellant’s case. Second, appellant insists that Drayton’s statement to Cook would have been admissible as a statement against interest under Pa.R.E. 804(b)(3) because Drayton would have invoked his Fifth Amendment privilege if he had been called to testify at appellant’s PCRA hearing and the statement would have subjected him to conspiracy to obstruct justice charges. The Commonwealth counterargues that this claim is frivolous. The Commonwealth notes that Drayton’s statement to Cook was not a statement against interest under Rule 804(b)(3) because, inter alia, it did not indicate that he had conspired with anyone to keep the conversation secret; it did not suggest either affirmative interference with a government function on the part of Drayton or “force, violence, physical interference or obstacle, breach of official duty, or any other unlawful act,” as required by the obstruction of justice statute, 18 Pa.C.S. § 5101; and, in any event, the statute of limitations for obstruction of justice had expired three years before Drayton’s alleged statement to Cook, see 42 Pa.C.S. § 5552(b). The PCRA court addressed this claim in a Supplemental Opinion filed on July 29, 2005. In determining that Drayton’s statement to Cook did not constitute a statement against interest, the court noted, inter alia, that the statement did not subject Drayton to criminal liability and that Cook was not a person of authority or a person whose interests were adverse to Drayton’s. Pennsylvania Rule of Evidence 804(b) provides, in pertinent part, as follows: (b) Hearsay Exceptions. The following statements, as hereinafter defined, are not excluded by the hearsay rule if the declarant is unavailable as a witness: * * * =!: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. In a criminal ease, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. -1: * * * Pa.R.E. 804(b). The statute of limitations for obstruction of justice is five years. 42 Pa.C.S. § 5552(b)(1). The instant claim is indeed frivolous. Laying aside appellant’s failure to address the statute of limitations for obstruction of justice and to attempt to do more than baldly assert Drayton’s potential liability for such offense, appellant suggests no “corroborating circumstances clearly indicat[ing] the trustworthiness of [Drayton’s alleged] statement.” Because Drayton’s alleged statement to Cook clearly would have been inadmissible, we need not address the admissibility of Savino’s alleged statement to Cook. The PCRA court did not err in excluding Cook’s testimony. 2. Testimony of Kevin Cofer regarding identity of “Little Man ” Appellant next claims that the PCRA court erred in sustaining the Commonwealth’s objections, on hearsay grounds, to questions posed by defense counsel while examining Kevin Cofer at appellant’s PCRA hearing designed to elicit testimony that the individual known as “Little Man” was Aaron Montague. Appellant contends that such testimony would have been admissible under Pa.R.E. 803(19) because Cofer’s personal knowledge of the identity of “Little Man” was based on Montague’s reputation in the community. The Commonwealth responds that Rule 803(19) is inapplicable because a person’s nickname is not among the facts enumerated in the Rule, nor is it a “similar fact of personal or family history.” In any event, the Commonwealth contends, Cofer’s personal knowledge as to Montague’s nickname would have been cumulative of trial counsel’s PCRA testimony that he knew Montague to go by the name “Little Man.” In explaining its exclusion of Cofer’s testimony as to Montague’s nickname, the PCRA court relied upon Pa.R.E. 602 (“Lack of personal knowledge”). The court noted that Cofer testified that he did not know Montague personally and learned that Montague was called “Little Man” only from newspapers and people in the community. Pennsylvania Rule of Evidence 803 provides, in pertinent part, as follows: Rule 803. Hearsay exceptions; availability of declarant immaterial The following statements, as hereinafter defined, are not excluded by the hearsay rule, even though the declarant is available as a witness: * * * * (19) Reputation concerning personal or family history. Reputation among members of a person’s family by blood, adoption, or marriage, or among a person’s associates, or in the community, concerning a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. * * * * Pa.R.E. 803. Rule 803(19) refers to “fact[s] of personal or family history” that, due to their historical nature, are often very difficult to ascertain. Moreover, the pool of persons who have personal knowledge of an individual’s birth, death, adoption, etc., is typically quite small, and some or all of such persons may no longer be living at the time proof is sought. See 5 Wigmore on Evidence § 1481. Reputations among family members or in the community as to such facts are considered inherently trustworthy in light of “the ‘natural effusions’ ... of those who talk over family affairs when no special reason for bias or passion exists.” Id. at § 1482. It is for these reasons that reputation evidence of facts of personal or family history is allowed. We agree with the Commonwealth that a person’s reputed nickname is not a “fact of personal or family history” that is similar to one’s birth, adoption, marriage, divorce, death, legitimacy, or relationship. Neither the necessity for, nor the inherent trastworthiness of, reputation evidence inheres in a mere acquaintance’s testimony as to a person’s reputed nickname. Therefore, the PCRA court did not abuse its discretion in requiring Cofer to have personal knowledge of Montague’s nickname in order to testify with respect thereto. 3. Appellant’s request to inspect property receipt Appellant next claims that the PCRA court erred in failing to allow the defense to inspect “with expert assistance” the date recorded on a property receipt as to the timing of a chemical test preformed on the passenger seat headrest of the Taurus. Appellant’s Brief at 70. Appellant alleges that although Ronald McCoy, the forensic analyst who filled out the receipt, testified that the test was performed on May 5, 1993, the receipt plainly records the test date as “8/5” and therefore confirms that the Commonwealth “had no excuse for waiting to produce the[ ] [test results] until the second day of trial.” Id. at 69. In response, the Commonwealth offers four independent reasons why this claim fails: (1) appellant fails to cite any authority to support it; (2) the PCRA court was able to read the date and determine McCoy’s credibility without “specialized knowledge beyond that possessed by a layperson,” Pa. R.E. 702; (3) appellant fails to address the fact that the receipt plainly recorded the year as 1993, not 1992; and, in any event, (4) the relevant date for discovery purposes was not the date of the test but, rather, the date or dates the test results were provided to the prosecutor and defense counsel. The PCRA court determined that appellant failed to develop this claim because he did not cite the notes of testimony to support his assertions that defense counsel requested an inspection of the receipt and that the PCRA court denied the request. At the PCRA hearing, counsel for the Commonwealth asked Mr. McCoy to read aloud entries he had made on the property receipt in his handwriting. When asked to read the date and time when McCoy began performing the test on the headrest, McCoy testified: “It says 5/5/93, 8:15 a.m.” N.T., 10/6/04, at 131; see also id. at 128 (McCoy testifying that he performed the test in May 1993). After McCoy read aloud other entries on the receipt, the prosecutor returned to the date and time when the test was begun: Q. Mr. McCoy, can I direct your attention to the date, first date listed where you performed the exam? A. Yes., Q. You testified that you did the exam on May 5th, 1993? A. Yes, I did. Q. When I read that date, it looks like an eight. You know your handwriting better than I do. Is that an eight or five? . A. It’s a five. Id. at 136. The above PCRA testimony of McCoy is consistent with testimony McCoy gave as to the timing of the test on the third day of trial, just six days after he performed the test. See N.T., 5/11/93, at 506. Instantly, appellant fails to note that there was no dispute in the PCRA court that the property receipt recorded the year as “[’]93,” see N.T., 10/7/04 (p.m.), at 11. Although not explained in his Brief to this Court, the purpose of appellant’s request for an expert inspection of the receipt was, in the words of appellant’s PCRA counsel, “to subject it to infrared and/or ultraviolet testing ... [t]o see whether the three was at one point a two.” Id. at 12. The PCRA court rejected the request as untimely, as appellant did not raise a challenge to the year McCoy performed the test until the day after McCoy testified. Id. at 6-12. Appellant’s failures to develop this claim consistently with the challenge as raised to the PCRA court and to address the court’s timeliness determination preclude meaningful appellate review of the court’s denial of appellant’s request for an expert inspection of the receipt. In any event, even assuming the timeliness of the request, and even assuming that the test was actually conducted in August 1992 rather than May 1993, the instant claim ignores the PCRA court’s determination that the Commonwealth “turned over [McCoy’s] report as soon as it became available,” PCRA Ct. Op. at 42. In reaching this determination, the trial court cited McCoy’s trial testimony that he prepared the report on May 10, 1993, id. at 40 (citing N.T., 5/11/93, at 499-507), as well as defense counsel’s representation to the court that he was provided with a copy of the report on that same date, id. (citing N.T., 5/10/93, at 345-47). Instantly, appellant does not dispute either that the report was prepared on May 10,1993 or that it was provided to both parties later that same day. Therefore, because the timing of the chemical test on the headrest is irrelevant to whether the Commonwealth failed to timely disclose the results of the test, the instant claim is unavailing. k. Appellant’s requests for Commonwealth’s complete files Finally, appellant claims that the PCRA court erred in failing to grant his sweeping requests for production of the complete files of the police investigation into Graves’ murder as well as all non-privileged information in the Commonwealth’s files. Appellant contends that such an order was warranted given alleged “unexplained gaps” in the discovery provided by the Commonwealth as set forth in the context of appellant’s discovery claims. Appellant’s Brief at 70. The Commonwealth responds that appellant is not entitled to relief on this claim both because he fails to cite any authority to support it and because his discovery request was overbroad. As support for its contention that the discovery request was overbroad, the Commonwealth notes that the request was made without regard to whether any particular item had exculpatory value, could be relevant to a PCRA claim, or was already in the possession of the defense. In any event, the Commonwealth argues, the discovery request was premised entirely on allegations of discovery violations on the part of the Commonwealth that were utterly meritless. In denying relief on this claim, the PCRA court noted that appellant’s discovery request was premised on the mere speculation that possible trial court errors or potential exculpatory evidence could be discovered. Accordingly, the court determined that appellant failed to satisfy the “good cause” requirement of Pa.R.Crim.P. 902(E)(2). This Court reviews a PCRA court’s denial of a discovery request for an abuse of discretion. Commonwealth v. Bryant, 579 Pa. 119, 855 A.2d 726, 749-50 (2004). “On the first counseled petition in a death penalty case, no discovery shall be permitted at any stage of the proceedings, except upon leave of court after a showing of good cause.” Pa. R.Crim.P. 902(E)(2). “A showing of good cause requires more than just a generic demand for potentially exculpatory evidence.” Bryant, 855 A.2d at 750 (quoting Commonwealth v. Chambers, 570 Pa. 3, 807 A.2d 872, 889 (2002)). Appellant’s PCRA discovery request was the same sort of generic plea for hypothetical evidence that we have rejected as falling far short of the “good cause” requirement of Rule 902(E)(2). See, e.g., Bryant, 855 A.2d at 750 (rejecting discovery request of petitioner who “merely speculate[] as to possible trial court errors, or potentially exculpatory evidence”); Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 261 (2006) (rejecting “fishing expedition for possible exculpatory evidence”). The PCRA court acted well within its discretion in refusing to order such all-encompassing discovery upon mere generic demand. III. CONCLUSION For the foregoing reasons, we affirm that part of the order of the PCRA court denying appellant a new trial. Justice SAYLOR, EAKIN and BAER, Justice TODD, Justice McCAFFERY and Justice GREENSPAN join the opinion. ■ This case was reassigned to this author. . Appellant was represented at trial by Louis T. Savino, Jr., Esquire. . The facts underlying appellant's convictions are set forth in detail in Commonwealth v. (Rodney) Collins, 549 Pa. 593, 702 A.2d 540 (1997). . The two aggravating circumstances that the jury found were: (1) appellant knowingly created a grave risk of death to another person in addition to the victim, 42 Pa.C.S. § 9711(d)(7); and (2) appellant had a significant history of violent felony convictions, 42 Pa.C.S. § 9711(d)(9). The two mitigating circumstances that the jury found were: (1) appellant's age at the time of the murder, 42 Pa.C.S. § 9711(e)(4); and (2) appellant’s troubled childhood, i.e., any other mitigation evidence concerning appellant’s character and record, 42 Pa.C.S. § 9711(e)(8). . Appellant's direct appeal counsel was James Bruno, Esquire. . Appellant’s PCRA counsel were, and remain, Kimberly M. Dolan, Esquire, and Michael H. Malin, Esquire. . Although Pennsylvania’s Pierce test divides the performance element into separate prongs for arguable merit and reasonable basis, it does so only for ease of application. As this Court has repeatedly noted, the Pierce and Strickland standards themselves are coextensive. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 594 n. 8 (2007); Commonwealth v. (Brian) Hawkins, 586 Pa. 366, 894 A.2d 716, 721 n.10 (2006); Commonwealth v. Spotz, 582 Pa. 207, 870 A.2d 822, 829 (2005); Commonwealth v. Edmiston, 578 Pa. 284, 851 A.2d 883, 890 (2004); Commonwealth v. Busanet, 572 Pa. 535, 817 A.2d 1060, 1066 nn. 10, 11 (2002). . Although the McGill Court cited the 2001 Pierce case in explaining the availability of relief on a layered claim, the seminal case in our ineffectiveness jurisprudence is, of course, the 1987 case that bears the same name. See (Charles) Pierce, supra. . Pa.R.Crim.P. 305 was renumbered Rule 573 in 2000. . We need not address appellant's remaining arguments in support of the instant claim, as they rest upon the erroneous premise that the Commonwealth’s failure to disclose the lead residue test results before the second day of trial violated Rule 573. . As further support for its waiver argument with respect to the notice-of-removal claim, the Commonwealth argues that appellant failed to plead this claim in his PCRA petition. In response, appellant in his reply brief cites Claim V of his first counseled PCRA petition, which alleged that chemical testing of the headrest should not have been admitted at trial because the Commonwealth belatedly produced that evidence. Acknowledging the Commonwealth’s position that the instant underlying notice-of-removal claim is obviously distinct from Claim V, appellant nonetheless contends that the Commonwealth’s waiver argument is "based on nothing more than inconsequential variations between the way in which the claims were pled below and the way they have been presented here." Reply Brief at 17. Because we find, for the reasons explained below, that appellant waived the instant notice-of-removal claim for failing to raise it before the trial court, we need not address the Commonwealth's alternate contention that appellant waived the claim for failing to plead it in his PCRA petition. . For this reason, we postpone revisiting Deans in light of Fisher until we are presented with a case that squarely presents the continuing vitality of Deans. . The Commonwealth argues that these claims are waived for appellant’s failure to include a signed certification from both trial and direct appeal counsel as to their testimony at the hearing, as required by 42 Pa.C.S. § 9545(d)(1). Appellant responds in his reply brief that the Commonwealth’s waiver argument is waived because it was not raised before the PCRA court, which did not dismiss any of the claims on the basis of the absence of signed certifications. Appellant further notes that, if the Commonwealth had raised his failure to include the signed certifications before the PCRA court, he would have been entitled to the opportunity to cure the deficiency pursuant to Pa.R.Crim.P. 905(B) (allowing PCRA court to order amendment of PCRA petition that is defective as originally filed). Because we find, for the reasons explained below, that each of the claims that the PCRA court denied without a hearing lacks merit, we decline to address the Commonwealth's waiver argument. . In the course of setting forth this claim, appellant asserts that, because the trial court did not give a limiting instruction, the jury was free to consider Cofer’s prior statement and testimony implicating appellant as substantive evidence of appellant’s guilt rather than simply as evidence to impeach Cofer. Appellant, however, does not present this as a separate underlying claim of trial court error and provides no authority in support of it. While it is worth noting that the relevant authority would seem contrary to such a claim, see Commonwealth v. Lively, 530 Pa. 464, 610 A.2d 7, 10 (1992) (holding that prior inconsistent statements may be used as substantive evidence when, e.g., given under oath at formal legal proceeding or reduced to writing signed and adopted by witness), we are precluded from rendering meaningful appellate review of the lack of a limiting instruction at appellant’s trial due to his failure to develop a stand-alone claim on this basis. . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). . The Commonwealth argues that appellant waived these claims by presenting them on a second page of appellant’s Statement of Questions Involved, in violation of Pa.R.A.P. 2116. Because we find that the claims lack merit, we do not address the Commonwealth's alternative waiver argument.

ORDER PER CURIAM. AND NOW, this 12th day of June, 2008, the Petition for Review is hereby DENIED.

ORDER PER CURIAM. AND NOW, this 27th day of August, 2008, the Application for Extraordinary Relief Under King’s Bench Jurisdiction is DENIED. Justice GREENSPAN did not participate in the consideration or decision of this matter.

OPINION Justice SAYLOR. Our present review is of a retrial of a product liability action arising out of chemical contamination at the former Transportation and Safety Building in the Capitol Complex in Harrisburg. The background is set forth at length in the Court’s initial decision in Pennsylvania Department of General Services, v. U.S. Mineral Products Corp., 587 Pa. 236, 898 A.2d 590 (2006) (“DGS I”). Briefly, DGS and other state agencies (“Appellants”) sued Monsanto Corporation for chemical contamination in the Transportation and Safety Building (the “T & S Building”) from the release of polychlorinated biphenyls (“PCBs”) alleged to have been manufactured by Monsanto. Appellants limited their liability theory to strict liability and initially secured a $90 million verdict at the conclusion of a lengthy jury trial in the Commonwealth Court. This Court reversed, however, holding that judgment notwithstanding the verdict should have been awarded on various claims, and a new trial was required as to others. See id. One of the grounds supporting the award of a new trial resulted from the conflict in the evidence concerning whether PCBs were distributed to surfaces throughout the T & S Building in the ordinary use of PCB-containing products, or whether the chemical was spread in smoke and soot during a severe fire occurring in June 1994, after which PCBs were first detected on the surfaces. The trial court, however, had erroneously failed to issue instructions requested by Monsanto to distinguish between fire- and non-fire related contamination. See DGS I, 587 Pa. at 252-59, 898 A.2d at 600-04 (explaining that strict liability is available only for harm that occurs in connection with a product’s intended use by an intended user, and that the incineration of building materials is not an intended use). The Honorable Robert Simpson, Jr. presided over the retrial, in which an appropriate instruction was issued to the jurors. This trial culminated in a defense verdict, upon a jury finding that Monsanto’s product was not defective. Appellants filed timely post-trial motions, which were denied by a three-judge panel of the Commonwealth Court. See Department of General Services v. U.S. Mineral Products Corp., 927 A.2d 717 (Pa.Cmwlth.2007) (“DGS II ”). This direct appeal ensued, in which Appellants challenge the verdict as against the weight of the evidence, contending that the evidence was undisputed that Monsanto’s product was unsafe for its intended use, and therefore, defective; the trial court erred in admitting evidence regarding the absence of sprinklers and other fire-safety features, thus facilitating Monsanto’s efforts to advance what was essentially an impermissible contributory negligence defense; the trial court erred in admitting evidence regarding costs to repair the T & S Building that Appellants did not seek to recover, thereby inappropriately suggesting to the jurors that the claimed damages were caused by negligent maintenance as opposed to product defect; and the trial court inappropriately curtailed voir dire, depriving Appellants of a full and fair opportunity to explore disqualification matters. Appellants seek a new trial. The governing review principles require the award of a new trial only where a trial court has committed an error of law or abuse of discretion which may have affected the verdict. See Harman ex rel. Harman v. Borah, 562 Pa. 455, 467, 756 A.2d 1116, 1122 (2000). I. The Against-The-Weight-Of-The-Evidence Claim In addressing Appellants’ claim that the jury finding of no defect was against the weight of the evidence, the Commonwealth Court initially summarized Appellants’ evidence of product defect, including testimony that PCBs are harmful to human health and were unintentionally disbursed throughout the T & S Building through the ordinary course of the operation of the building’s heating and ventilation system. See DGS II, 927 A.2d at 726. The Commonwealth Court, however, catalogued the following evidence that PCBs were safe when used as intended, including: Appellants’ representations to employees and the public that the T & S Building was safe for human occupation after the fire, see id. at 726-27; testimony from a former division director for the Pennsylvania Department of Health that PCB levels in the building were negligible and that he did not expect any long-term health effects for employees or visitors, see id. at 727; the absence of personal injury claims arising from PCB contamination of the building, see id. at 727-28; and expansive technical and expert evidence regarding the levels of PCBs in the T & S Building, both pre- and post-fire, see id. at 728-30. The court observed that the evidence suggested that only long-term exposure to PCBs at concentrated or accumulated levels may potentially prove harmful to human health. See id. at 730. Further, the court highlighted that PCB levels in the T & S Building before the fire were lower than those approved by the Environmental Protection Agency and found in other buildings. See id. Upon such review, the court concluded that the evidence was such that reasonable persons could disagree as to product defect, and therefore, a new trial was not warranted. See id. Presently, Appellants contend that it was undisputed at trial that PCBs are susceptible to dispersal; tend to accumulate in humans subject to multiple exposures; are capable of causing human illness; and, indeed, represent the only substance ever to have been banned by Congress, see 15 U.S.C. § 2605(e). Appellants point to Monsanto’s own documents characterizing PCBs as a “worldwide ecological problem” and indicating that “Monsanto is most probably responsible for the U.S. contamination.” N.T., February 8, 2007, at 1405-1406. Appellants also reference testimony from Dr. James Melius, an epidemiologist, who indicated, inter alia, that PCBs are carcinogens and have other known adverse health effects, including liver damage, immune system damage, and neurological effects on developing children. See N.T., February 2, 2007, at 798-802. Further, Appellants rely on testimony from Dr. Richard Le-men, a former director of the National Institute for Occupational Safety and Health, discussing such health effects, see N.T., February 7, 2007, at 1095, and the agency’s recommendation that PCB presence in buildings be limited to the lowest feasible limit (one microgram per one-hundred centimeters squared for surfaces), see id. at 1103-1105, as distinguished from a higher risk-based threshold generally maintained by the Environmental Protection Agency. Appellants stress that Monsanto offered no evidence to challenge the testimony of Drs. Melius or Lemon regarding the overall health effects related to PCB exposure; to the contrary, they assert that Monsanto made multiple admissions regarding the toxicity of the substance. As to the spread of PCBs throughout the T & S Building, Appellants contend that at least a significant amount, if not all, occurred as a result of PCB-containing building materials used as intended. Appellants support this conclusion by reference to the testimony of industrial hygienists John Kominsky and William Ewing, who opined that PCBs used as a component of glue in the building’s ductwork were released as vapor into the air stream during the ordinary use of the heating and ventilation system. See N.T., February 1, 2007, at 598; N.T., February 12, 2007, at 1569, 1643-44. Mr. Kominsky also testified that PCBs were disbursed when the ductwork was fabricated through the process of sealing the assembled segments with a hot iron. See id. at 1647. Appellants observe that samples of building materials taken from the T & S Building prior to the fire were contaminated with the type of PCB used in the ductwork, which they contend negates Monsanto’s theory that the migration occurred solely on account of the fire. Appellants also develop that there were PCBs in other building products, including PCB-containing caulking material which migrated to pre-cast concrete panels on the exterior of the building, see N.T., February 13, 2007, at 1825, 1850-52, and mastic used to attach floor tile, which they assert contaminated the concrete deck, see id. at 1893-1894. With regard to the Commonwealth Court’s reasoning supporting the denial of a new trial, Appellants argue that the court overemphasized the absence of immediate bodily injury in disregard of DGS I, which recognized the significance of an increased risk to human health in a property-damage case. See DGS /, 587 Pa. at 260, 898 A.2d at 605. Finally, Appellants contend that the refusal to grant post-trial relief on against-the-weight-of-the-evidence grounds may be explained by the trial judge’s displeasure with Appellant’s trial counsel for commissioning post-verdict interviews with jurors. See N.T., April 16, 2007, at 51-55. For its part, Monsanto defends the Commonwealth Court’s rationale, characterizing Appellants’ evidence of harmfulness as abstract from any assessment of the nominal levels of PCBs found in the T & S Building resulting from ordinary use of PCBs in the building materials. Monsanto highlights this Court’s holding in DGS I that Appellants were required to establish that the presence of PCBs, unrelated to the fire, rendered the building unsafe. See DGS I, 587 Pa. at 260-62, 898 A.2d at 605-06. Further, it argues that the Commonwealth Court’s conclusion that the mere presence of PCBs does not give rise to strict liability is consistent with DGS I and testimony of Appellants’ representatives; representatives of the Department of Health; and Appellant’s own litigation experts, who conceded that there are safe levels. Indeed, Monsanto emphasizes, as did the Commonwealth Court, that documents and testimony of officials from DGS, the Department of Health, and the Department of Transportation demonstrated that PCB levels found in the building, even after the fire, were “well within the acceptable health standards,” “negligible,” and “pose[d] no health risk.” DGS II, 927 A.2d at 726-27 (citations omitted). Monsanto argues that the jury was free to credit Appellants’ pre-litigation statements over the contradictory opinions offered by Appellants’ litigation experts at trial. Monsanto also points to substantial evidence to the effect that the PCBs found on surfaces within the T & S Building were not reposited during the intended use of the building materials, but were spread by smoke and soot during the fire. In this regard, it explains that tests commissioned by its expert on pre-fire building materials showed only nominal PCB bulk-sample levels (measured in parts per million) that were five times lower than those found in similar building materials after the fire. See N.T., February 21, 2007, at 2589. Monsanto notes that, at trial, Appellants vigorously disputed that smoke and soot from the fire spread beyond the sixth floor, but were contradicted by a DGS engineer; a DGS deputy secretary; a DGS environmental consultant; and Harrisburg’s fire chief, who described having seen smoke and soot throughout the Building during the fire and/or having witnessed the products of combustion in the aftermath. See N.T., February 7, 2007, at 1148-1149; N.T., February 16, 2007, at 2213; N.T., February 20, 2007, at 2547; N.T., February 28, 2007, at 3663. Moreover, Monsanto observes that the jurors viewed two videotapes of the fire, providing visual confirmation of its impact. Additionally, Monsanto develops that its fire expert and the fire chief described the various mechanisms by which the products of combustion spread vertically and horizontally throughout the building, such as through unsealed shafts housing cables. See N.T., February 16, 2007, at 2244-2245. Thus, Monsanto asserts, there was ample evidence from which the jury could conclude that PCBs found on building surfaces following the fire did not derive from the intended use of building products such as would be necessary to support Appellants’ defect theories under DGSI. Monsanto also catalogues its evidence contradicting Appellants’ experts’ theories of dissemination through ductwork operation and fabrication, which it contends were without credible scientific or evidentiary foundation. See, e.g., Brief for Appellee at 17 (“In order to prove that PCB contamination pre-dated the fire, Plaintiffs contrived a theory through their experts ... that PCBs evaporated out of the solid glue matrix (of which PCBs were one of 12 constituents) that affixed the aluminum backing of the HVAC ductboard to its fiberglass interior, traveled through a dense one-inch mat of fiberglass, and flew from the surface of the fiberglass into the occupied areas of the Building during the winter heating season.”). Monsanto points to the evidence that PCBs evaporate 100 million times more slowly than water, see N.T., February 21, 2007, at 2607-2608, and that very few of over 5,000 air tests conducted in the T & S Building after the fire indicated any presence of PCBs, see id. at 2608-2612. Further, Monsanto details various criticisms of tests performed on ductwork segments by Appellants’ expert, since he utilized pieces taken from the building after the fire; subjected them to conditions not found in the building; and was unable to maintain even the designed controls. See N.T., February 21, 2007, at 2627-2631. With regard to Appellants’ theory that PCBs were released in the fabrication of the ductwork, again, Monsanto refers to evidence that the PCB-containing glue was trapped between three layers of aluminum and a one-inch thick layer of fiberglass insulation, thus preventing any escape. See N.T., February 12, 2007, at 2623-2627. Concerning the presence of PCBs from caulk, Monsanto notes that the jury heard testimony that, under prevailing federal regulations, the caulking material did not have to be removed, nor if removed, disposed of in a special landfill designated under the Toxic Substances Control Act. See N.T., February 21, 2007, at 2634-2635. Further, according to Monsanto, none of Appellants’ experts established a pathway of exposure of Building occupants to the caulk, and thus, any actual health risk. Monsanto’s expert also testified that the mastic under the carpeting did not require remediation. See N.T., February 21, 2007, at 2590-2595. Finally, Monsanto highlights its expert’s testimony that PCBs escape into the environment for reasons principally related to the disposal practices of users, see N.T., February 31, 2007, at 2682-2683, and his unequivocal opinion that, because of their stability, PCBs did not volatilize and escape from the building products found in the T & S Building. See N.T., February 21, 2007, at 2606-2608, 2617-2627. In accordance with the foregoing, Monsanto observes that, without objection and consistent with DGS I, the trial court instructed the jurors to decide whether Monsanto’s product was unsafe for its intended use in the T & S Building. Since there was substantial evidence that the product, used as intended, did not create a health risk, Monsanto concludes that the jury could reasonably find (and found) that its product was not defective. In evaluating a claim that a verdict is against the weight of the evidence, Pennsylvania courts employ a shocks-the-conscience litmus. See Armbruster v. Horowitz, 572 Pa. 1, 9-10, 813 A.2d 698, 703 (2002) (explaining that “a new trial should be granted only in truly extraordinary circumstances, ie., ‘when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail’ ” (quoting Thompson v. City of Philadelphia, 507 Pa. 592, 598, 493 A.2d 669, 672 (1985))). The trial judge’s authority to award a new trial on weight-of-the-evidence grounds is narrowly circumscribed on account of the principle that credibility ’ questions are exclusively for the fact finder. See id. (explaining that “[a] trial judge cannot grant a new trial ‘because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion’ ”). The matter is couched as discretionary in the trial court, with its role in the assessment being afforded primacy in view of its substantially closer vantage to the evidentiary presentation as compared to that of an appellate court. See id. (“ ‘Whereas a trial court’s decision to grant or deny a new trial is aided by an on-the-scene evaluation of the evidence, an appellate court’s review rests solely upon the cold record.’ ”). Relief is available in an appellate court only if it can be said that the trial court acted capriciously or palpably abused its discretion. See id. We agree with Monsanto that the Commonwealth Court did not abuse its discretion in denying a new trial on product-defect grounds. As previously noted, DGS I established that the jury could not base a finding of defect on fire-related contamination, as incineration of Monsanto’s product was not an intended use. See DGS I, 587 Pa. at 252-60, 898 A.2d at 600-04. Accordingly, the trial court, after instructing the jurors that Monsanto was responsible to provide its product “with every element necessary to make it safe for its intended use and without any condition that makes it unsafe for its intended use,” explained that: the incineration of building products is not a use intended by the manufacturer. Under Pennsylvania law, damages in this case are unavailable for fire-related PCB contamination. As jurors, you are required to distinguish between any PCB contamination that existed before the fire and PCB contamination spread by the fire. N.T., March 1, 2007, at 4011. While there were various samplings of PCBs found on surfaces in the T & S Building above the level recommended by the National Institute for Occupational Safety and Health, and some above the ceiling established by the Environmental Protection Agency, the parties vigorously contested whether these derived from ordinary use of building products or from the fire. Moreover, as developed above, substantial evidence was presented to support both positions. Monsanto’s evidence included the testimony of a registered professional engineer specializing in PCBs, which proceeded as follows: Q. Based upon your investigation, and your 30 years of experience on working on PCB projects, can you tell us where the PCBs that were found after the fire, where they came from? A. The materials that burned in this situation in the fire within the T & S Building were the ductboard containing the PCB adhesive, and the light fixtures that contained PCB capacitors. Those were the two sources. Q. Okay. The answer to my question though is, the PCBs that were found on surfaces after the fire, where did they come from? A. They came — they came from those sources. They were exactly the same [types of PCBs].... So you could trace it very easily with the fingerprint of the type of PCB. Q. And what is it that caused them to be released? A. They simply were distributed by the smoke and fire. Q. Of the what, as a result of what? A. As a result of the fire and the burning of these products. N.T., February 21, 2007, at 2583-84. Based on this and other items of Monsanto’s evidence, the jurors reasonably may have concluded that it was the fire, and not any intended use of PCBs, that was the vehicle by which PCBs were distributed to surfaces throughout the Building. Further, as Monsanto develops, its expert also testified that the PCBs deriving from the outside caulk and floor mastic did not pose any risk to human health and did not need to be remediated. See N.T., February 21, 2007, at 2590-2595. While Appellants certainly are free to disagree with the verdict, we do not find it to be of the variety that shocks the conscience. Thus, we conclude that there is insufficient basis to disturb the trial court’s decision to deny Appellants’ request for a new trial. II. Fire-Safety Features/ Repair Costs The Commonwealth Court next addressed Appellants’ argument that the trial court erred in permitting Monsanto to introduce evidence that the T & S Building lacked a sprinkler system and other fire-safety features, and evidence regarding repair costs that Appellants did not seek to recover, thus purportedly suggesting negligence on Appellants’ part in the maintenance of the building. The court explained that the admission or exclusion of evidence lies within the sound discretion of the trial court. See DGS II, 927 A.2d at 731 (citing McManamon v. Washko, 906 A.2d 1259, 1268-69 (Pa.Super.2006), appeal denied, 591 Pa. 736, 921 A.2d 497 (2007)). Initially, the court noted that the evidentiary rulings in issue bore no relevance to the only issue reached by the jury (product defect), and therefore, it reasoned that any error in the evidentiary rulings would be harmless. See id. On the merits, the Commonwealth Court explained that, although evidence of negligence has no place in strict liability actions, see DGS II, 927 A.2d at 731 (citing Kimco Development Corp. v. Michael D’s Carpet Outlets, 536 Pa. 1, 7-9, 637 A.2d 603, 607 (1993)), evidence which is inadmissible for one purpose may be admissible for another. See id. (citing Spino v. John S. Tilley Ladder Co., 548 Pa. 286, 298, 696 A.2d 1169, 1174-75 (1997)). In this regard, the court observed that a plaintiff in a strict liability action must show the product was defective, and the defect was the proximate cause of his injury. See id. (citing Madonna v. Harley Davidson, Inc., 708 A.2d 507, 508 (Pa.Super.1998)). Consequently, the court indicated, “ ‘[ijnquiry into the plaintiffs use of the product may be relevant as it relates to causation.’ ” Id. at 509. In the present case, the court determined that the contested evidence was relevant primarily to rebut Appellants’ damage claims. According to the court, the evidence of lack of a sprinkler system and other safety features was admitted to show the condition of the Building prior to the 1994 fire and detection of PCBs. See DGS II, 927 A.2d at 731. Further, the court explained that “[t]his evidence tends to deflate the Building’s pre-fire market value, and it was necessary to refute Plaintiffs’ claims that the Building was a ‘showcase.’ ” Id. The court concluded: We thoroughly examined Defendant’s use of the evidence throughout the trial, including closing argument, and find it respected the use for which the evidence was offered. Moreover, we fail to see how introduction of the Building’s lack of safety features could affect the jury’s decision that Defendant’s product was not safe for its intended use. Plaintiffs’ argument that the jury may have found Defendant’s product not defective based on evidence the Building lacked certain safety features is pure speculation, which, if accepted, necessitates the conclusion the jury disregarded the trial judge’s limiting instructions. We presume, however, the jury followed the instructions. Mt. Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263 (Pa.Super.2001), aff'd, 571 Pa. 60, 811 A.2d 565 (2002). Where there is no evidence to support such an argument, a new trial is not warranted. Id. at 732. In a footnote, the Commonwealth Court also addressed Appellants’ argument that the jury may have improperly considered Appellants to have been responsible for the fire, because the trial court failed to repeat the limiting instruction when the jury requested an additional charge regarding product defect. The court emphasized that the trial court provided the parties with the opportunity to correct any errors or insufficiencies before the jury returned to deliberations, and that neither party requested further clarification. See DGS II, 927 A.2d at 732-33 n. 8 (citing N.T., March 2, 2007, at 4057). Presently, Appellants argue in general terms that the trial court erred in the first instance in admitting the evidence of lack of fire-safety features and costs of repair. The thrust of their argument, however, goes to Monsanto’s use of the evidence. In this regard, Appellants stress that the trial court admitted the evidence for limited purposes, clearly ruling that it could not be used to prove negligence on their part. According to Appellants, however, Monsanto blatantly ignored such limitation, particularly in its counsel’s closing argument to the jury. See, e.g., Brief for Appellants at 36-37 (delineating examples of such asserted excesses, including Monsanto’s counsel’s statement: “And don’t you think the Commonwealth knew that after the fire, after they had egg on their face because they didn’t sprinkler the building, when they announced, we’re out of there in a year, put in sprinklers, and take out asbestos.” (quoting N.T., March 1, 2007, at 3946-3947)). Further, Appellants maintain their criticism that, when the jury requested that the instruction regarding product defect be reread, the limiting instruction concerning sprinklers, other safety features, and costs of repair was not included. We agree with the Commonwealth Court that the trial court’s decision to admit evidence of a lack of fire-safety features and costs of repair was within its discretion. In the damages portion of the jury charge, without objection, the trial judge instructed the jurors that: “In thinking about market value, you may consider depreciation, including physical deterioration, design, and other deficiencies of the structure ...” N.T., March 1, 2007, at 4020; accord DGS I, 587 Pa. at 251-52, 898 A.2d at 599-600. The complained-of evidence was directly relevant in this regard. Indeed, at least with regard to absence of fire-safety features, Appellants concede that the evidence was “arguably relevant to the issues of causation and damages.” Brief for Appellants at 41. There is at least colorable merit to the thrust of Appellants’ argument, namely, that Monsanto’s counsel exceeded the bounds of the limited purposes for which the fire-safety and cost-of-repair evidence was admitted in his closing argument. However, Appellants failed to lodge an objection to the closing to afford the trial judge the contemporaneous opportunity to take corrective action. In the circumstances, the present claim is waived. See Harman ex rel. Harman v. Borah, 562 Pa. 455, 475, 756 A.2d 1116, 1127 (2000) (explaining that “[fjailure to raise a prompt objection is a valid reason for the trial court to deny a motion for a new trial”); Craley v. Jet Equipment & Tools, Inc., 778 A.2d 701, 706-07 (Pa.Super.2001) (holding that a moving party waived objections to remarks in opponent’s closing argument by failing to object and could not assert error for the first time in post-trial motions); Richardson v. LaBuz, 81 Pa.Cmwlth. 436, 451, 474 A.2d 1181, 1192-93 (1984). Similarly, as the Commonwealth Court indicated, Appellants did not request that the limiting instruction be repeated when the jury asked for supplemental instructions concerning product defect. Thus, this aspect of Appellants’ claim is also waived. See id. III. Limits on Voir Dire In response to Appellants’ claim that they were provided insufficient opportunity for voir dire, the Commonwealth Court observed that the trial judge conducted preliminary voir dire to address threshold issues of venireperson availability and hardship and distributed a written questionnaire to the remaining venire panel to secure additional information. The court noted that both parties were afforded an opportunity to examine and comment upon the questionnaire, and neither party objected to the form. See DGS II, 927 A.2d at 732. It explained- that the purpose of voir dire is to empanel a competent, fair, impartial, and unprejudiced jury, see id. at 733 (citing Williams v. SEPTA 741 A.2d 848, 854 (Pa.Cmwlth.1999)), and the scope of voir dire is within the sound discretion of the trial judge, see id. The court explained that Appellants’ counsel was able to inquire whether the panel members had any financial connection to the Commonwealth; contact with the government generally; information regarding the T & S Building; negative impressions of lawsuits generally; membership in organizations to reform the legal system; involvement in any issues regarding chemicals; concerns regarding liability for products sold in the distant past; experiences involving asbestos; or reasons why they could not serve fairly and impartially. Additionally, the court indicated that the trial court neither restricted nor interfered with Appellants’ thorough explanation of the venirepersons’ responsibilities. The Commonwealth Court also noted that the trial judge granted a request by Appellants for additional time for voir dire, explaining as follows: After several hours of preliminary questions relating to the length of trial, Plaintiffs’ counsel reviewed the jury questionnaires and embarked on general oral voir dire. After approximately 50 minutes of questioning by Plaintiffs’ counsel, the trial judge inquired how much longer he intended to continue. At side-bar, the following colloquy occurred: [Plaintiffs counsel:] I don’t know how much [Defendant’s counsel] feels, but a bunch of these questionnaires have people that said they can’t be fair about — maybe 10 of them, THE COURT: There are two people who said they can’t be fair. I don’t know how much time that’s going to take. Look, tell me what you need. This is an important part of trial, I understand that. But I’d like to get this done if we can. And you were certainly schmoozing and spending your time freely for a while.... THE COURT: So this is my opportunity to focus you. How much time do you need? [Plaintiffs counsel]: 30 minutes. THE COURT: [Defendant’s counsel] gets the same amount of time. Okay. DGS II, 927 A.2d at 734 (quoting N.T., January 29, 2007, at 159). According to the Commonwealth Court, counsel was given all the time he requested and made no further requests. See id. In a footnote, it expressed the conclusion that any challenge to the voir dire proceedings was waived on account of counsel’s failure to object. See DGS II, 927 A.2d at 734 n. 11 (explaining “one must object to errors, improprieties or irregularities at the earliest possible stage of the adjudicatory process to afford the jurist hearing the case the first occasion to remedy the wrong and possibly avoid an unnecessary appeal” (citing McManamon, 906 A.2d at 1268-69)). Appellants’ present arguments fail to address the Commonwealth Court’s express finding of waiver, with which we can find no fault. Accordingly, this claim provides no basis for relief. The order of the Commonwealth Court is affirmed. Chief Justice CASTILLE, and Justice EAKIN and BAER, Justice TODD and Justice McCAFFERY join the opinion. . There was no dispute that PCB-containing building materials were consumed by fire during the event. . In this regard, Monsanto explains that the studies relied on by Appellants' experts were primarily high-dose animal studies and assessments of workers having substantial levels of occupational exposure. See, e.g., N.T., February 6, 2007, at 857, 981-984. . Monsanto also offered evidence that even if there had been some escape during the installation process, because of the stability of PCBs, the amount that could have volatilized throughout the T & S Building would have been only one-hundredth of an ounce, or less than a drop. See N.T., February 21, 2007, at 2627. . Although in this case post-trial motions were resolved by a three-judge panel, notably, the trial judge was a member and, indeed, authored the panel opinion. . We also find Appellants' claim arising out of the trial judge's displeasure with post-verdict juror interviews, which amounts to an assertion of bias, to be without foundation. Whatever the merits of the criticisms of Appellant's counsel, there is nothing to connect the trial judge's perspective on this subject with the Commonwealth Court's developed reasoning concerning the unrelated weight-of-the-evidence claim. . Appellants reference no portion of the record other than the closing argument of Monsanto's counsel where they contend that the limited > purposes for which the evidence was admitted were exceeded.

ORDER PER CURIAM. AND NOW, this 24th day of September, 2008, the Application for Leave to File Original Process is GRANTED, and the Petition for Writ of Habeas Corpus is DENIED.

OPINION Chief Justice CASTILLE. Appellant Donald Tedford appeals from the order of the Court of Common Pleas of Butler County (“PCRA court”) denying his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546. For the reasons set forth below, we hold that appellant is not entitled to relief and, accordingly, affirm the order of the PCRA court. On February 6, 1987, a jury sitting before the Honorable Floyd A. Rauschenberger convicted appellant, who was represented by counsel, of first-degree murder and rape. The convictions arose from an incident occurring in Cranberry Township, Butler County, in which appellant, who was on work-release from the State Correctional Institution at Greensburg, lured the twenty-two-year-old victim, Jeanine Revak, to his place of employment, raped her, and then strangled her to death to prevent her from notifying the police of the rape. Following a penalty hearing at which appellant elected to present no mitigation evidence, the same jury found two aggravating circumstances and no mitigating circumstances, and accordingly returned a sentence of death. See 42 Pa.C.S. § 9711(c)(iv) (verdict must be sentence of death if jury unanimously finds at least one aggravating circumstance and no mitigating circumstance). The two aggravating circumstances found by the jury were: (1) appellant committed the killing while in the perpetration of a felony (rape), 42 Pa.C.S. § 9711(d)(6); and (2) appellant had a significant history of felony convictions involving the use or threat of violence to the person, 42 Pa.C.S. § 9711(d)(9). On March 20, 1987, the trial court formally imposed the death sentence for the first-degree murder conviction, and a consecutive term of imprisonment of 8/£ to 17 years for the rape conviction. Subsequently, appellant was permitted to file post-verdict motions nunc pro tunc. The trial court then appointed new counsel to represent appellant, and amended post-verdict motions were filed. The motions raised multiple issues of trial court error and over 80 claims of trial counsel ineffectiveness, including trial counsel’s alleged failure to investigate and call witnesses, recall certain prosecution witnesses, impeach prosecution -witnesses, present scientific evidence, challenge the prosecution’s forensic evidence, and present mitigating circumstances. On April 29, 1988, the trial court, after a hearing, denied appellant’s post-trial motions. On direct appeal, this Court unanimously affirmed appellant’s convictions and sentences. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989) (“Tedford 7”) (relating facts underlying appellant’s convictions). In so holding, this Court considered various claims raised by appellant, including claims of trial counsel ineffectiveness. Our disposition of the ineffectiveness claims was brief. After noting that appellant had presented both counseled and pro se claims of ineffectiveness below, the Court ruled as follows: Essentially, the appellant, in his allegations of ineffective assistance of counsel, takes a “shotgun” approach and attempts to challenge every decision trial counsel made with respect to his failure to call or recall certain witnesses and the questioning of the witnesses who were called and did testify. We have reviewed the entire record in this case, including the evidentiary hearing of February 1, 2 and 3, 1988 and appellant’s pro se amended and corrected motions filed on February 19, 1988, and conclude that the claims of ineffectiveness of trial counsel raised by the appellant are merit-less. We find no error in the lower court’s order in dismissing all of appellant’s ineffectiveness claims. Id. at 626. Appellant did not petition for a writ of certiorari in the U.S. Supreme Court. On July 12,1995, appellant filed a pro se PCRA petition and new counsel was appointed (“PCRA counsel”). On August 2, 1995, the PCRA court entered an order dismissing appellant’s pro se PCRA petition without prejudice and directing appellant to file a new PCRA petition with counsel’s assistance within 30 days. After being granted several time extensions, on January 15, 1997, appellant filed his new petition. On January 28, 2000, the PCRA court dismissed the PCRA petition, determining that it was untimely because it was appellant’s second PCRA petition and had not been filed within one year of December 13, 1989, the date this Court issued Tedford I. On appeal, this Court reversed the PCRA court and remanded the case for consideration of the merits of the claims raised in appellant’s January 15, 1997 PCRA petition. Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167 (2001) (“Tedford II”). This Court held that the 1997 PCRA petition merely amended appellant’s pro se PCRA petition filed on July 12, 1995, and thus was not a second petition. Moreover, this Court held that the amended PCRA petition was timely under 42 Pa.C.S. § 9545(b)(1), having been filed within one year of the effective date of the 1995 amendments to the PCRA, i.e., by January 16, 1997. See Act of Nov. 17, 1995, P.L. 1118, No. 32. Following this Court’s remand, the PCRA court, per the Honorable Thomas J. Doerr, denied appellant’s renewed request for discovery, but permitted the filing of another amended PCRA petition. Thereafter, on March 5, 2004, the PCRA court dismissed all but one of appellant’s claims. The remaining claim alleged that appellant’s appellate counsel, an attorney in the Butler County Public Defender’s Office, possessed a conflict of interest at the time of his representation. On May 18, 2004, the PCRA court held an evidentiary hearing solely on the conflict of interest claim. Appellant requested that Judge Doerr recuse himself from the case on the basis that he was a member of the Butler County Public Defender’s Office at the time of appellant’s trial and the time relevant to the conflict of interest claim. Judge Doerr denied appellant’s request. On July 16, 2004, the PCRA court entered an order denying relief on the conflict of interest claim. This appeal followed. At the outset, we note that because appellant filed his pro se petition prior to the PCRA’s 1995 amendment and this Court has already held that PCRA counsel’s 1997 PCRA petition merely amends appellant’s pro se petition, this case is gov erned by the pre-amendment PCRA. See Commonwealth v. Boyd, 547 Pa. 111, 688 A.2d 1172, 1174 n. 2 (1997) (“Appellant filed his PCRA petition before the 1995 amendments to the Act became effective in January of 1996. Therefore, [the preamendment PCRA] applies to this case.”). With the exception of Section 9453(a)(2)(v), which was deleted, the differences between the amended and pre-amendment PCRA do not affect the present appeal. Under the pre-amendment PCRA, a petitioner may be eligible for relief if, by a preponderance of the evidence, he proves the following: (2) That the conviction or sentence resulted from one or more of the following: (i) A violation of the Constitution of Pennsylvania or laws of this Commonwealth or the Constitution of the United States which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. (ii) Ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. * * * * (v) A violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner. (vi) The unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced. (vii) The imposition of a sentence greater than the lawful maximum. (viii) A proceeding in a tribunal without jurisdiction. (3) That the allegation of error has not been previously litigated and one of the following applies: (i) The allegation of error has not been waived. (ii) If the allegation of error has been waived, the alleged error has resulted in the conviction or affirmance of sentence of an innocent individual. (iii) If the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief. (4) That the failure to litigate the issue prior to or during trial or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel. 42 Pa.C.S. § 9543(a)(2)-(4) (amended 1995). Before turning to appellant’s individual claims, some discussion of the framework for our review is helpful. Most of appellant’s claims sound in ineffective assistance of counsel. To obtain relief on a claim of ineffective assistance of counsel, a petitioner must demonstrate that counsel’s performance was deficient and that such deficiencies prejudiced the petitioner. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A petitioner establishes prejudice when he demonstrates “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052; see also Commonwealth v. Mallory, 596 Pa. 172, 941 A.2d 686, 702-04 (2008), petition for cert. filed, 77 USLW 3058, -- U.S.-, 129 S.Ct. 257, 172 L.Ed.2d 146 (2008) (“result of the proceeding” is stage of proceeding at which error occurred). A properly pled claim of ineffectiveness posits that: (1) the underlying legal issue has arguable merit; (2) counsel’s actions lacked an objective reasonable basis; and (3) actual prejudice befell petitioner from counsel’s act or omission. Commonwealth v. Carson, 590 Pa. 501, 913 A.2d 220, 233 (2006), cert. denied,-U.S.-, 128 S.Ct. 384, 169 L.Ed.2d 270 (2007) (citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987) (adopting U.S. Supreme Court’s holding in Strickland)). A claim that has been waived is not cognizable under the PCRA. The pre-amendment PCRA stated that “an issue is waived if the petitioner failed to raise it and if it could have been raised before the trial, at the trial, on appeal, in a habeas corpus proceeding or other proceeding actually conducted or in a prior proceeding actually initiated under this subchapter.” 42 Pa.C.S. § 9544(b) (amended 1995). Because appellant was represented by new counsel on direct appeal at a time when counsel could (and did) raise claims of trial counsel ineffectiveness, any claim that appellant would now make sounding in trial court error or ineffective assistance of trial counsel is waived under the PCRA. See 42 Pa.C.S. § 9543(a)(3) (amended 1995). Any such defaulted claim could be an aspect of a cognizable claim under the PCRA only to the extent it is posed and developed as a “layered” claim of ineffectiveness focusing on appellate counsel. In Commonwealth v. McGill, 574 Pa. 574, 832 A.2d 1014 (2003), this Court set forth a framework for consideration of layered ineffectiveness claims, as follows: [A] petitioner must plead in his PCRA petition that his prior counsel, whose alleged ineffectiveness is at issue, was ineffective for failing to raise the claim that the counsel who preceded him was ineffective in taking or omitting some action. In addition, a petitioner must present argument ... on the three prongs of the Pierce test as to each relevant layer of representation. McGill, 832 A.2d at 1023. “[T]he inability of a petitioner to prove each prong of the Pierce test in respect to trial counsel’s purported ineffectiveness alone will be fatal to his layered ineffectiveness claim.” Carson, 913 A.2d at 233. Conversely, with layered claims, establishing trial counsel’s ineffective assistance will demonstrate that prior appellate counsel’s fail ure to raise the former’s ineffectiveness suggests a claim possessing arguable merit. Id. (citing Commonwealth v. Rush, 576 Pa. 3, 838 A.2d 651, 656 (2003)). In such instances, the petitioner will be entitled to relief if he demonstrates that appellate counsel’s actions lacked a reasonable basis and prejudiced the petitioner. Id. In cases where layered claims are at issue, a PCRA petitioner who fails to properly layer his claims of ineffectiveness before the PCRA court should not have his petition dismissed on that ground without first being provided the opportunity to amend his pleading to address these substantive points. Id. (citing Commonwealth v. Washington, 583 Pa. 566, 880 A.2d 536, 540 (2005); Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 513 (2004); Rush, 838 A.2d at 651). When a petitioner has not been afforded the opportunity by the PCRA court to so amend his pleading, this Court may, but will not necessarily, remand the matter: “remand is not necessary where the petitioner ‘has not carried his Pierce burden in relation to the underlying claim of trial counsel’s ineffectiveness, since even if the petitioner were able to craft a perfectly layered argument in support of his claim [with respect to appellate counsel], the petitioner’s claim would not entitle him to relief.’ ” Commonwealth v. Harris, 578 Pa. 377, 852 A.2d 1168, 1173 (2004) (quoting Rush, 838 A.2d at 657-58) (alteration in original). Because appellant in the present case had new counsel on direct appeal, all claims of counsel ineffectiveness relating to trial matters are layered claims, making it necessary for appellant to comply with McGill. To the extent this Opinion discusses underlying claims of alleged trial court error or trial counsel ineffectiveness, it does so purely for purposes of analyzing appellant’s derivative and cognizable claims of layered ineffectiveness. In addition to considerations of waiver and layering, the merits of a PCRA claim will not be reviewed if the claim was previously litigated. 42 Pa.C.S. § 9543(a)(3) (amended 1995). Under the pre-amendment version of the PCRA, an issue has been previously litigated if: (1) it has been raised in the trial court, the trial court has ruled on the merits of the issue and the petitioner did not appeal; (2) the highest appellate court in which the petitioner could have had review as a matter of right has ruled on the merits of the issue;, or (8) it has been raised and decided in a proceeding collaterally attacking the conviction or sentence. 42 Pa.C.S. § 9544(a)(1)-(3) (amended 1995); see also Carson, 913 A.2d at 234. The word “issue” refers to the “discrete legal ground that was forwarded on direct appeal and would have entitled the defendant to relief.” Commonwealth v. Collins, 585 Pa. 45, 888 A.2d 564, 570 (2005); see also Commonwealth v. Gwynn, 596 Pa. 398, 943 A.2d 940, 944 (2008) (noting that, in Collins, we defined “issue” within meaning of Section 9543(a)(3)). This Court had previously held that a PCRA petitioner cannot obtain post-conviction review of previously litigated claims by alleging ineffective assistance of prior counsel and presenting new theories of relief on the same facts. See Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121, 123 (1994) (citing Commonwealth v. Wilson, 452 Pa. 376, 305 A.2d 9 (1973)). Following this Court’s decision in Collins, supra, however, a reviewing court must “consider and substantively analyze an ineffectiveness claim as a ‘distinct legal ground’ for PCRA review” because “while an ineffectiveness claim may fail for the same reasons that the underlying claim faltered on direct review, the Sixth Amendment basis for ineffectiveness claims technically creates a separate issue for review under the PCRA.” Carson, 913 A.2d at 234 (discussing Collins, 888 A.2d at 573) (internal quotation marks omitted). When a PCRA court has disposed of a number of claims as previously litigated prior to our decision in Collins, and without touching on the separate Sixth Amendment merits of the claim, this Court may remand those claims for further analysis consistent with Collins. Carson, 913 A.2d at 234. Remand, however, is not required when the claims are obviously deficient for other reasons. See id. Appellant raises multiple claims arising from the guilt and penalty phases of his trial, as well as one claim alleging conflict of interest maintained by appellate counsel, two alleging PCRA court error, and one summarily alleging that the cumulative effect of the previous claims warrants relief. In an effort to avoid waiver and the previous litigation bar, appellant makes a number of broad introductory declarations in his opening “umbrella claim.” We will first dispose of these overarching procedural claims. First, appellant asserts that this Court should grant relief on the merits because, under the pre-amendment PCRA, a petitioner is entitled to relief for any claim “which would require the granting of Federal habeas corpus relief to a State prisoner.” See 42 Pa.C.S. § 9543(a)(2)(v) (repealed effective January 16, 1996). This provision was deleted when the PCRA was amended in 1995 for reasons which are not hard to imagine, as it is difficult, and oftentimes impossible, for this Court to predict which state-defaulted claims would later be deemed both reviewable and meritorious on federal habeas corpus review. Appellant’s boilerplate umbrella argument identifies no controlling U.S. Supreme Court authority which would require federal habeas merits relief on any of his claims in particular. Under either the pre-amendment or the amended PCRA, appellant must still prove the cognizability and merit of his claims. Second, appellant claims that none of his claims can be deemed waived because the pre-amendment PCRA had an exception to waiver that contained a similar ping-ponging reference to federal habeas review. Specifically, the preamendment PCRA provided an exception to waiver, as follows: “if the allegation of error has been waived, the waiver of the allegation of error during pretrial, trial, post-trial or direct appeal proceedings does not constitute a State procedural default barring Federal habeas corpus relief.” See 42 Pa.C.S. § 9543(a)(3)(iii) (repealed effective January 16, 1996). Citing Jacobs v. Horn, 395 F.3d 92, 117-18 (3d Cir.2005), appellant contends that federal habeas law in the Third Circuit does not recognize “procedural default” for Pennsylvania capital cases where any alleged waiver occurred prior to this Court’s decision in Commonwealth v. Albrecht, 554 Pa. 31, 720 A.2d 693 (1998), which abrogated relaxed waiver on PCRA review. The Commonwealth counters that Albrecht’s abrogation of relaxed waiver applies to the present case because this Court has previously applied Albrecht to PCRA petitions pending when Albrecht was decided. Furthermore, according to the Commonwealth, the application of Albrecht’s invalidation of relaxed waiver to pending PCRA appeal has survived constitutional challenge. The Commonwealth’s point is well-taken. See Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 726 (2000); Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 303 (1999). We decline to ignore the PCRA and reinstate the discretionary relaxed waiver doctrine. The unpredictability inherent in Section 9543(a)(2)(v) is equally implicated with Section 9543(a)(3)(iii). The fact that a Third Circuit panel says that a salutary state procedural default, such as the PCRA’s statutory waiver provision, will not be respected and the fact that the Circuit misconstrues the scope of the former relaxed waiver doctrine cannot control our interpretation and enforcement of the PCRA. Finally, this Court is bound by decisions of the U.S. Supreme Court, not the opinions of the inferior federal courts. The PCRA provision speaks in terms of absolutes (“does not constitute”); the holdings of inferior federal courts, in instances where the High Court has not spoken, are, by definition, tentative. Thus, we reject the notion that the PCRA waiver provision does not apply to appellant’s claims because the Third Circuit allegedly believes that no capital claim is waivable. Third, citing Commonwealth v. Miller, 560 Pa. 500, 746 A.2d 592, 602 n. 9 (2000) for the proposition that merits review is warranted when a claim does not rest solely on previously litigated evidence, appellant contends that, because he is presenting evidence that was not considered on direct appeal, none of his claims can be found to be “previously litigated” within the meaning of 42 Pa.C.S. § 9543(a)(3). Appellant also submits that this Court’s doctrine precluding review of previously litigated claims conflicts with federal constitutional standards regarding effective assistance of counsel. Appellant, however, proffers little, if any, “new” evidence that would trigger Miller. Moreover, the intervening decision in Collins will guide our consideration of previous litigation issues. Despite these broad introductory assertions, appellant consistently treats his averments of trial and appellate counsel ineffectiveness as reasons why the underlying claims should not be considered waived or previously litigated, rather than developing his ineffectiveness claims under Strickland. As stated above, under Collins we will distinguish a previously litigated underlying claim from a derivative ineffectiveness claim raised on collateral review. The manner of the dismissal of the previously litigated underlying claim, however, will often render the derivative ineffectiveness claim lacking in arguable merit. See, e.g., Commonwealth v. Dennis, 950 A.2d 945, 970-71 (Pa.2008) (claim that trial counsel was ineffective for failing to object to prosecution testimony regarding clothing allegedly seized from home of defendant’s father’s had been previously litigated on direct appeal, and thus, defendant/PCRA petitioner could not satisfy arguable merit prong of Pierce with regard to appellate counsel’s ineffectiveness). In his over 20-claim brief, appellant reproves appellate counsel for his “shotgun approach” to his claims of trial counsel’s ineffectiveness on direct appeal, and then ironically follows a similar approach to his layered claims here. Given the posture and disposition on direct appeal, the only substantive ineffectiveness claims we may reach are layered claims of ineffectiveness or stand-alone claims of appellate counsel ineffectiveness. But, despite submission of this matter postMcGill, appellant often argues his claims primarily as sounding in trial counsel ineffectiveness (claims which themselves have been either previously litigated or waived), with only a cursory sentence or two declaring that appellate counsel was ineffective as well. Moreover, appellant has failed to show which of the trial counsel ineffectiveness claims “nested” within his present layered ineffectiveness claims were previously litigated on direct appeal and which were waived. Such a distinction is important because, if a trial counsel ineffectiveness claim was already litigated, appellant must show that appellate codnsel was ineffective in the manner in which he litigated the claim; and if the claim was waived, on the other hand, appellant must demonstrate that appellate counsel was ineffective for failing to raise the claim on direct appeal. Throughout his Brief, however, appellant often only offers a boilerplate “appellate counsel failed to raise this issue” declaration. Although appellant’s failure to adequately present his claims could require remand, we ultimately determine that remand is unnecessary because appellant has not carried his Strickland/Pierce burden in relation to any of his claims. See Harris, supra. With the above overarching concerns in mind, we now turn to appellant’s individual claims. I. GUILT PHASE CLAIMS A. Juror Knowledge of Prior Record Appellant first claims that juror knowledge of his prior criminal record violated his due process rights and his right to an impartial jury. A brief discussion of the underlying facts and procedure is helpful. During voir dire, the court, trial counsel, and the prosecution learned of jury room discussions regarding the basic facts of the victim’s murder and appellant’s prior criminal record. First, many of the jurors stated that they had read newspaper accounts of the victim’s murder shortly after it occurred. Second, a potential juror mentioned that, when he went out to lunch, he began to read a newsletter discussing the basic facts of the case and the trial schedule, but stopped upon recalling the court’s instructions. See Tedford I, 567 A.2d at 620 n. 3 (describing newsletter). Third, another juror informed the court that he saw the newsletter in or around the jury room, though he stated that no one who had been selected had read it. Fourth, another prospective juror mentioned that in the jury room prospective jurors were discussing the facts of the case which they learned from the trial court during individual voir dire. Fifth, other potential jurors informed the court that many of the prospective jurors had learned “that twelve years ago that [sic] he beat up a nurse.” Notes of Testimony (“N.T.”), 1/31/87, at 983 (voir dire of prospective juror Perko). Upon hearing this information, trial counsel immediately moved for a mistrial and to strike all the jurors who had been empaneled. Following a brief recess where trial counsel and the prosecutor questioned prospective juror Perko further and discussed the situation, both counsel reached an agreement, which the trial court accepted, whereby they would continue the voir dire process keeping these facts in mind and would allow trial counsel wide latitude in his examinations of potential juror taint. For its part, the trial court informed the parties that it was “not concerned with the impressions or the attitudes of the jurors unless they know something of his past record or they are not going to follow the court’s instructions.” Id. at 993-94. Trial counsel again moved for a mistrial, and also moved for a change of venue; both motions were denied. Jury selection proceeded and all potential jurors were questioned extensively regarding their outside knowledge of the victim’s murder, appellant’s prior criminal record, and of any other jury room conversations. Toward the end of jury selection, trial counsel challenged the seating of a juror who had been present in the jury room on the day other potential jurors informed the court that discussions of appellant’s prior assault had taken place. Trial counsel challenged the juror for cause and, acknowledging that the jury would then not be properly empaneled, renewed his motions for a mistiial and/or change of venue. Finding that the particular juror had been questioned and had not displayed any bias, the trial court denied trial counsel’s motions and the jury was empaneled. On direct appeal, appellate counsel claimed that the pre-trial publicity surrounding the case was so extensive and pervasive in the community that it was impossible to empanel a fair and impartial jury, and that the trial court erred in refusing to grant trial counsel’s motions for a mistrial and/or change of venue for the above-described reasons. In Tedford I, this Court considered the above-recounted facts and determined that “[a]ll of the jurors selected and seated unequivocally stated that they were able to decide the case solely on the basis of the evidence presented[.]” 567 A.2d at 620. In dismissing the claim, the Court added that: [o]ur review of the record indicates that the steps taken by Judge Rauschenberger in the instant ease: (a) in summarily striking jurors who indicated they recently had read a prejudicial account of the crime; (b) in granting appellant great leeway in questioning prospective jurors; and (c) in immediately sequestering the jurors who were selected, adequately served, under circumstances here, to insure the selection of a fair, impartial and untainted jury. Id. at 621. Now on PCRA review, appellant cites the above-described voir dire testimony, as well as what he calls “affidavits” of potential and seated jurors that were secured by new counsel for purposes of PCRA review, and claims that trial counsel was ineffective. Appellant argues that, although the parties agreed to excuse for cause any selected jurors who admitted to reading the newsletter or newspaper articles, trial counsel never requested that previously selected jurors be recalled and questioned regarding the articles that supposedly circulated in the jury room. Appellant contends that subsequent out-of-court questioning of potential jurors demonstrated that they had been exposed to prejudicial information about appellant’s prior criminal record. Appellant acknowledges that trial counsel moved for a mistrial and that the trial court promised to remove any tainted juror, but he asserts that trial counsel was nevertheless ineffective for failing to ascertain and place on the record the full extent of the alleged jury taint by questioning every panel member about the distribution of newspapers and/or newsletters and about any speculation on appellant’s prior criminal history. Appellant also claims that appellate counsel was ineffective for failing to investigate the full extent of the jury taint, call jurors to testify at post-verdict evidentiary hearings, and raise this issue, in this fashion, on direct appeal. Citing Miller, supra, which concluded that a claim was not previously litigated when it did not rest solely upon previously litigated evidence, appellant further alleges that this claim concerning trial counsel cannot be considered previously litigated because he proffers evidence— the unsworn “affidavits” of actual jurors — that was absent from the direct appeal claim. The Commonwealth responds that this claim was previously litigated on direct appeal. The Commonwealth states that the evidence appellant currently proffers is not substantially different from the evidence submitted on direct appeal, where this Court concluded that the trial court had taken substantial and adequate steps to insure the selection of an impartial jury. The Commonwealth further states that, even if there were any error, given the overwhelming evidence of appellant’s guilt, such error was harmless. The PCRA court, which operated without the benefit of this Court’s Collins decision, found that this claim had been previously litigated on direct appeal. The PCRA court noted that Miller did not involve evidence obtained following the conclusion of trial, such as the juror “affidavits” proffered here. Accordingly, the PCRA court dismissed this claim as previously litigated. The court also opined that, even if the claim were not previously litigated, appellant failed to a state a cognizable claim under the McGill and Pierce standards. The PCRA court and the Commonwealth correctly note that the underlying tainted jury claim was previously litigated on direct appeal and is thus not cognizable as such under the PCRA. For the purpose of ineffectiveness review, we also agree with the Commonwealth that appellant’s new “evidence” is not substantially different from the evidence cited on direct appeal. More importantly, it appears that appellant mischaracterizes the declarations. In his Brief, appellant interweaves the declarant-jurors’ knowledge of appellant’s prior criminal record with references to the jury room discussions during voir dire. For example, appellant submits in his Brief: Review of the voir dire reveals that, while the potential jurors were waiting to be questioned by the court and counsel, newspapers and newsletters were distributed in the jury room. The record also reveals that jurors discussed the case and the 1972 arrest and conviction more and more as jury selection began and progressed, and they speculated as to the nature of the prior offense, enhancing the prejudice to Mr. Tedford. Three seated jurors — Perry Ray, Shirley Pickerd and Ronald Stitt — have given affidavits [sic] stating that they were aware of information and misinformation about Mr. Tedford’s previous arrest and conviction. The affidavits and the voir dire testimony make it clear that information about the 1972 offense circulated freely among the jury venire. The information contained in the affidavits was not disclosed at trial or sentencing and was prejudicial. Appellant’s Brief at 12 (citation and footnote omitted). Following this characterization, appellant concludes that “[a]s the affidavits clearly demonstrate, prohibited information reached the jurors who found [a]ppellant guilty and sentenced him to death.” Id. at 17. Review of the three declarations, however, demonstrates that the declarant-jurors appear to be referring to learning of appellant’s prior record at the penalty phase when the Commonwealth presented evidence to prove the significant-history-of-felony-convictions aggravator, and not from any jury room discussions during voir dire. For example, declarant-juror Pickerd stated in her declaration: “I remember that second part of the trial when we were given information about Mr. Tedford’s criminal history to take back to the jury room with us.” Declaration of Shirley Pickerd, Amended PCRA Petition, Exhibit C, at 1 (unnumbered). Thus, to the extent appellant claims that he has new facts regarding the previously litigated jury taint claim, facts which prove trial and appellate counsel to have been ineffective, the declarations he attached to his PCRA petition do not provide support. These subsequently-produced declarations do not prove counsel ineffective. Properly framed, appellant’s current claim is that appellate counsel was ineffective for failing to investigate and raise trial counsel’s ineffective performance in the manner in which he preserved and developed the claim concerning alleged juror knowledge of appellant’s prior convictions. Appellant fails to carry his Strickland/Pierce burden respecting the trial counsel ineffectiveness aspect of his claim. Appellant claims that trial counsel was ineffective for failing “to adequately place upon the record the full extent of this juror misconduct.” Appellant’s Brief at 18. As noted, appellant’s declarations do not support his predicate accusation. More fundamentally, appellant’s claim depends upon an assumption that appellate counsel had a constitutional duty to interview jurors to properly present the jury taint claim. Appellant cites no case to support this assumption and, contrary to appellant’s assertion, there is no general recognized duty to interview jurors. In fact, the practice is condemned. See Commonwealth ex rel. Darcy v. Claudy,. 367 Pa. 130, 79 A.2d 785, 786 (1951) (“The practice of interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court[.]”). Moreover, review of the record and Tedford I readily demonstrates that previous counsel were diligent in addressing any potential juror impartiality. Therefore, appellant’s layered claim of ineffective assistance of counsel lacks arguable merit. See Carson, 913 A.2d at 233. Appellant has also failed to demonstrate that he suffered prejudice. “The purpose of voir dire is to ensure the empanelling of a fair and impartial jury capable of following the instructions of the trial court.” Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 519 (2005) (internal quotation marks omitted); see also Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 256 (1988) (“The purpose of the voir dire examination is not to provide a better basis upon which a defendant can exercise his peremptory challenges, but to determine whether any venireman has formed a fixed opinion as to the accused’s guilt or innocence.”). Even exposure to outside information does not ineluctably mean that a jury is unfair and partial. As this Court noted on direct appeal, in the present case, the trial court ensured the jury’s impartiality and fairness by: (1) summarily striking jurors who indicated that they had recently read a prejudicial account of the crime or appellant’s criminal history; (2) granting trial counsel a great degree of leeway in questioning prospective jurors; and (3) immediately sequestering the jurors who were selected to ensure that the selection was fair, impartial, and untainted. See Tedford I, 567 A.2d at 621. Appellant has failed to rebut the evidence that the jury was fair and impartial, and he has failed to demonstrate that he was prejudiced by alleged juror knowledge of his prior criminal record. B. Transcript Alterations & Deletions Appellant next claims that he was denied meaningful appellate review and effective assistance of appellate counsel because the trial transcript is inaccurate. In his Brief, appellant describes a number of transcript alterations and deletions which, he asserts, constituted a denial of meaningful appellate review. Appellant alleges that the audio recording of trial was edited and reveals substantial alterations to the testimony upon which this Court relied when finding the evidence sufficient to prove his guilt on direct review. Similarly, appellant asserts that he is entitled to an accurate and complete record as a fundamental prerequisite for the adjudication of his PCRA claims. Appellant further contends that he was denied effective assistance of counsel on direct review because appellate counsel could not have provided effective assistance in the absence of a complete trial record. Appellant asserts that appellate counsel’s failure to obtain the audiotapes of the trial proceedings demonstrates ineffectiveness because he failed to take basic investigatory steps to pursue an appeal. Appellant acknowledges that appellate counsel filed objections to the transcript, but he still argues that appellate counsel was nevertheless ineffective for failing to obtain the audiotapes and brief or argue the issue of alterations on direct appeal. Finally, appellant claims that the PCRA court erred in denying his request for expert funds for a thorough analysis of the audiotapes of the trial proceedings. The Commonwealth responds that this claim is cognizable only as one sounding in the ineffective assistance of appellate counsel. The Commonwealth states that the first prong of Pierce could potentially be satisfied by appellate counsel’s failure to address the alteration issue in his appeal brief. The Commonwealth notes, however, that the issue was addressed by appellate counsel in post-verdict motions and ruled upon by the trial court. The failure to renew the claim in the appellate brief, the Commonwealth submits, must have been because appellate counsel reasonably believed, following the trial court’s ruling, that the claim lacked merit. The Commonwealth further asserts that, because the trial court reviewed the transcripts individually and denied most of appellant’s proposed changes, no prejudice resulted from appellate counsel’s decision not to pursue the issue on direct appeal. The PCRA court concluded that the ineffectiveness claim lacked arguable merit because appellant’s proposed alterations would not have affected the substance of the testimony presented. Additionally, the PCRA court found that appellant was not prejudiced by the alterations and that the judge, who heard the actual testimony, ordered appropriate changes to be made to the transcript. A defendant has a right to a complete and accurate transcript of trial. See Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (due process and equal protection requires that indigent defendant be provided transcript); see also Mayer v. City of Chicago, 404 U.S. 189, 195, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971) (state must provide full, verbatim record). Appellant’s underlying claim that he was denied meaningful appellate review due to alleged alterations to the trial transcript is waived because it was not raised on direct review. Appellant’s only cognizable claims based on the underlying transcript alteration claim are: (1) that appellate counsel was ineffective for failing to investigate the alleged transcript alterations and obtain audiotapes of the trial proceedings; and (2) that the PCRA court erred in denying appellant’s request for expert funds. First, we see no error in the PCRA court’s rejection of appellant’s claim sounding in the ineffective assistance of appellate counsel. Following trial, newly-appointed appellate counsel filed objections to the trial and evidentiary hearing transcripts. In March 1988, the trial court dismissed all but three of appellate counsel’s objections. Thereafter, appellate counsel filed exceptions to the trial court’s orders dismissing his objections to the transcripts. In its April 29, 1988 memo randum opinion and order responding to appellant’s post-verdict motions, the trial court stated that it had gone through the record with each court reporter and made the necessary corrections. Thus, the court concluded, the record was now correct as to what had occurred at trial. In light of the extensive post-verdict consideration of this issue, appellant has not proven that appellate counsel’s decision not to pursue this claim on direct appeal lacked a reasonable basis. Additionally, the alterations appellant now alleges in his Brief — assuming, for purposes of decision, that they exist — are not of such moment as to prove appellate counsel ineffectiveness. Appellant’s claim of alterations is premised upon comparing the written transcript with an audiotape. Most of the alleged alterations cited in appellant’s brief constitute little more than the un-transcribable “urns” and “ers” and other linguistic stumblings of the witnesses at trial, while other allegations of transcript alterations are used by appellant to suggest deception and a scheme or design to the pattern of alterations. For instance, appellant claims that the following alleged alterations created a false impression that alibi witness Dr. Timothy McCormick was not sure when appellant arrived at his home: [McCormick]: The most, the way I remember it was I think Johnny Carson was on and there was a theme song, and that’s elevemthirty to twelve:thirty, and so I can’t [can] tell you that when I hear [heard] the theme song that I would assume [it] elevemthirty in my head, but I know [I] that I wa... (E) looked at a [the] watch or clock, you know probably many times throughout that time and was of cognizant at [of] the time, that’s all. [Commonwealth]: So you’re saying elevemthirty the theme song was on? [McCormick]: That’s the way I remember it. Okay? . [Commonwealth]: That’s fíne. That’s what you said [say], elevemthirty till [because] you heard the theme song of Johnny Carson— [McCormick]: Right. [Commonwealth]: — when he [Donnie] came to the door— [McCormick]: [Right.] [Commonwealth]: —he woke you up though, coming in? [McCormick]: Well, he came [there], yeah. [Commonwealth]: Was it his custom to, ah, Doctor, to make plans prior to the day [date] he would show up, and I realize you say he (E) you never knew when he was going to come over [coming in] or whatever... (fade)... (E) Had had you made plans with him at least by phone that week to get together [on] Friday? , [McCormick]: Yes, we had. N.T., 2/5/87, 489-90; Appellant’s Brief at 26. Contrary to appellant’s assertion, the difference between “hear” and “heard” or “said” and “say,” or the deletion of an “ah” and the addition of an “of,” does not support appellant’s contention that the alleged alterations give a false impression that McCormick was unsure of the time when appellant arrived, and in such a way as to diminish his testimony. In fact, the alleged alteration from “can’t” to “can” actually would make it seem as if McCormick were more certain of when appellant arrived at his home. Moreover, the jury’s consideration of witness testimony was obviously unaffected by these ■ alleged transcript alterations. Any instance of witness misspeaking or stumbling implicating witness credibility was weighed by the jury at trial. Even supposing that these transcription errors occurred, they are de minimis and would not have affected this Court’s review of the sufficiency of the evidence to such an extent as to deny appellant meaningful appellate review, such that counsel could be deemed ineffective. There are some other alleged alterations, however, which are more weighty. For example, appellant submits that Trooper Bernard Stanek’s rebuttal testimony during the defense’s case was altered as follows: “Well, the victim’s car was I believe eight and about eight tenths of a mile from the scene of the Finishing Touch,” appellant’s place of employment and the scene of the rape and murder. See N.T., 2/4/87, at 437-38; Appellant’s Brief at 29 (appellant’s emphasis indicating text that was allegedly removed from the transcript). Appellant argues that such an alteration — the difference between 0.8 miles and 8.8 miles — could have affected this Court’s sufficiency review because the alteration makes it appear that the prosecution’s theory is consistent with the timeline and tends to rebut any claim that trial counsel was ineffective for failing to use the timeline to prove appellant’s innocence. Such a claim, however, falters because prior to this alleged alteration, Trooper Edward Peters clearly stated that the victim’s car was found “eight point eight tenths miles” and “twelve to seventeen minutes” from The Finishing Touch. N.T., 2/3/87, at 121. This testimony, presented during the Commonwealth’s case-in-chief (as opposed to Trooper Stanek’s rebuttal testimony), would have remained available to this Court on direct review. Therefore, appellant’s allegations of prejudice arising from the alleged alteration fails. Second, we see no error in the PCRA court’s denial of appellant’s request for expert funds to examine audiotapes of trial proceedings to determine the accuracy of the transcript. Appellant essentially argues that the denial of expert funds violates Ake v. Oklahoma, 470 U.S. 68, 83, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) (due process requires state to provide psychiatric assistance when defendant makes preliminary showing that sanity at time of offense is likely to be at issue), and that the trial court could not have properly found that his claim lacks arguable merit without knowing whether the claim was supported by expert findings. Ake is inapposite: Ake’s requirement to provide state-paid expert assistance applies to psychiatric assistance at trial, not audiotape forensic experts on PCRA review to try to prove appellate counsel ineffectiveness. Moreover, no matter what appellant amasses now on collateral attack, he still falters in the face of the presumption that appellate counsel was effective. Appellate counsel had to proceed in the face of a finding by the trial judge that the transcript was accurate and complete, and appellant has cited no authority for the proposition that newly appointed appellate counsel are obliged to order audiotapes and compare them to the transcript in search of deviations. For the foregoing reasons, appellant’s ineffectiveness claims based on the alleged “alterations” to the transcript are without merit. C. Trial Counsel Ineffectiveness Appellant raises two claims deriving from alleged trial counsel ineffectiveness at the guilt phase, arguing that trial counsel was ineffective for failing to: (1) adequately investigate and develop certain issues; and (2) challenge the evidence supporting the rape convictions. Appellant presents these claims primarily as claims of trial counsel ineffectiveness, with only a cursory attempt to layer them. Having reviewed the record, we conclude that the trial counsel ineffectiveness claims have been waived or previously litigated, rendering the cognizable, derivative claims of appellate counsel ineffectiveness meritless. See McGill, supra. 1. Failure to Adequately Investigate and Develop Certain Claims Appellant first claims that appellate counsel was ineffective for failing to raise trial counsel’s failure to call, or recall, certain witnesses, and investigate and/or develop specific points. We approach appellant’s laundry list of claims mindful of Strickland’s teaching to avoid hindsight evaluations of counsel’s conduct. See Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Specifically, appellant claims that trial counsel failed to investigate and/or better develop: (1) the alleged cancellation of appellant’s meeting with a friend, Susan Blackburn; (2) the alleged meeting with the victim away from The Finishing Touch; (3) possible evidence with which to impeach the Commonwealth’s jailhouse informant Michael Ferry; (4) an alibi defense; (5) evidence challenging the Commonwealth’s theory that twine from The Finishing Touch was used to strangle the victim; and (6) evidence that another person could have been the murderer. Without apparent awareness of the irony in his sincere flattery, appellant cites this Court’s criticism of appellate counsel’s “shotgun approach” to challenging trial counsel’s performance as proof of appellate counsel’s own ineffectiveness. Appellant declares that, although appellate counsel attempted to raise claims of trial counsel ineffectiveness in post-verdict motions and on direct appeal, appellate counsel failed to take the necessary steps to develop and litigate the claims. Appellant also declares without elaboration that his current claims have not been previously litigated because they supposedly rely on facts other than those presented on direct appeal. And, as with all of his claims, appellant attempts to satisfy Strickland and McGill with a mere boilerplate statement that any waiver is “overcome by the ineffective assistance of all prior counsel.” Appellant’s Brief at 46. The Commonwealth counters that these claims have been previously litigated because the same issues were raised on direct appeal and, after reviewing the entire record, this Court held all of appellant’s claims of trial counsel ineffectiveness to be meritless. See Tedford I, 567 A.2d at 626. Assuming, arguendo, that the claims concerning trial counsel ineffectiveness are new, continues the Commonwealth, then they are waived precisely because they were not pursued on direct appeal, when trial counsel no longer represented appellant. The Commonwealth also asserts that appellant cannot present new theories concerning the same claims by simply framing them as claims of ineffective assistance of appellate counsel. The PCRA court determined that these claims were previously litigated on direct appeal and, citing Commonwealth v. Senk, 496 Pa. 630, 437 A.2d 1218 (1981), concluded that appellant is attempting to relitigate these issues under the guise of ineffective assistance of appellate counsel. The PCRA court also found this Court’s comment regarding appel late counsel’s “shotgun approach” insufficient on its own to prove appellate counsel ineffective. Because appellant was represented by counsel other than trial counsel in post-verdict motions and on direct appeal, and because appellant’s direct appeal was litigated under the Hubbard rule, which obliged new counsel to promptly raise claims of trial counsel ineffectiveness, appellant presently forwards the sort of collateral, layered claims described in McGill — ie., claims that appellate counsel was ineffective for failing to raise a claim or claims sounding in trial counsel ineffectiveness. However, as we have noted earlier, it is important to remember that there may be claims that sound purely in appellate counsel ineffectiveness, unrelated to accusations against trial counsel. For example, trial counsel may have preserved a claim by objection, which appellate counsel did not pursue on appeal. Or there may be an extra-record claim — factual or case-law related — which arose after the trial. Or there could be a claim respecting the manner in which appellate counsel litigated a claim. In this case, it cannot be disputed that direct appeal counsel in fact litigated dozens of claims of trial counsel ineffectiveness. Given this record, and given the procedural restrictions of the PCRA which oblige appellant to plead' and prove that his current claims are neither previously litigated nor waived, in order to prevail appellant has to account for what occurred on direct appeal. It is not this Court’s duty to cull the direct appeal record and determine which of appellant’s current claims, premised upon supposed deficiencies in trial counsel, are mere repeats of, or variations of, claims of trial counsel ineffectiveness which were actually litigated on direct appeal. And, of course, if any of those claims of trial counsel ineffectiveness were in fact litigated on direct appeal, then today’s derivative layered claim necessarily fails — unless appellant proves deficiency in the manner in which appellate counsel litigated the claim on direct appeal. Appellant’s Brief does not append, summarize, or reference the over 50 pages of trial counsel ineffectiveness claims raised on direct appeal by incorporation. Because appellant has not satisfied his burden of distinguishing between claims which were waived and claims which were previously litigated, he has failed to take the necessary first step in proving appellate counsel to have been ineffective. Appellant instead makes generic assertions that appellate counsel was ineffective for either failing to raise claims or, less often, for the manner in which he litigated the claims he in fact raised. Appellant, however, has not attempted to demonstrate why appellate counsel was ineffective for failing to litigate the claims he declined to raise on direct appeal or how appellate counsel’s performance on direct appeal was defective pursuant to the requirements of Strickland/Pierce. Appellant merely attaches a boilerplate layered ineffectiveness assertion to a nested trial counsel ineffectiveness claim. Therefore, appellant has failed to prove appellate counsel ineffective. In any event, mindful of McGill, we look to these claims, and reject them on the merits. a. Susan Blackburn Appellant argues that trial counsel was ineffective for failing to interview Susan Blackburn and discover that appellant’s date with Blackburn had first been changed from a dinner date to a lunch date and that it was Blackburn, not appellant, who had cancelled their January 10th (day of the murder) date. Blackburn, however, testified both at trial and at the post-verdict hearing, and each time stated that it was appellant who cancelled their January 10th engagement. Trial counsel also testified at the post-verdict hearing and stated that he did indeed interview Blackburn. Any further “investigation” on counsel’s part would have been fruitless. Therefore, this claim lacks arguable merit. b. Meeting Away from The Finishing Touch Next, appellant argues that trial counsel was ineffective for failing to obtain a copy of a UPS log that would have shown that a delivery was made to The Finishing Touch, which appellant signed for, on the morning of the rape and murder. If obtained, argues appellant, the log, along with telephone records, would have demonstrated that appellant could not have had time to meet the victim' away from The Finishing Touch, where her car was found. Appellant, however, fails to explain the significance of such information. At trial, appellant stated that the victim was in The Finishing Touch on the day of the murder and that he had consensual sexual intercourse with her on that date. Appellant also stated that the UPS delivery was made at approximately 10:00 a.m. While the introduction of the UPS log may have disrupted the Commonwealth’s timeline of events preceding the rape and murder, it would not call into question the Commonwealth’s overall theory of the case. Furthermore, at the post-verdict hearing, trial counsel stated that he drove the distance in question and did not believe that that aspect of the timeline was an issue. Trial counsel is not obliged to argue every quibble, or pursue every triviality associated with human memory. This claim is without merit. c. Jailhouse Informant Next, appellant asserts that trial counsel was ineffective for failing to impeach Michael Ferry, a fellow inmate. Ferry stated that appellant admitted, on multiple occasions, to raping and murdering the victim, providing a great deal of detail concerning the crimes. Appellant contends that trial counsel should have further discredited Ferry’s version of events and should have called Timothy Sunday as a witness at trial to discredit Ferry. Appellant maintains that Sunday would have testified that Ferry provided false testimony in exchange for a “deal” on his pending sentence with the Commonwealth. This issue is discussed and rejected infra. d. Alibi Defense Next, appellant maintains that “[tjrial counsel should have used available testimony and evidence to explain for the jurors how the known locations and distances, and the established time-line of [appellant’s] alibi, demonstrated his innocence.” Appellant’s Brief at 42. Such is the extent to which appellant briefs this claim. It fails for lack of explication. e. Murder Weapon Next, appellant contends that trial counsel was ineffective for failing to challenge the prosecution’s theory that twine found in The Finishing Touch was the murder “weapon” (the victim was killed by strangulation). Appellant argues that trial counsel should have investigated to determine if the Commonwealth’s striation analysis and report had ruled out twine as the murder weapon. Appellant also argues that trial counsel could have accounted tor the twine fibers found on the victim by explaining that the fibers could have come from something elsewhere in the shop. In making this claim, however, appellant ignores that, at trial, the forensic pathologist testified that the ligature marks on the victim’s neck could have been made by the twine in question. Appellant also ignores the fact that no testimony was offered by either trial counsel or the prosecution regarding a striation analysis and that trial counsel did indeed challenge the twine-murder weapon theory at trial. Without more, appellant’s speculation fails to establish a predicate to call into question trial counsel’s effectiveness. f. Other Murderer Theory Next and finally, appellant maintains that reasonable counsel would have investigated and presented evidence that the victim was killed by another person. Appellant believes that that effort should have focused on the victim’s husband, James Revak, as the most logical suspect. However, besides generally opining that James Revak behaved suspiciously, appellant merely argues that “[cjompetent counsel would have investigated these facts in order to make a reasoned decision whether or not to introduce such evidence in support of [appellant’s] defense.” Appellant’s Brief at 44. This is utter speculation. Appellant’s argument fails to specifically describe how trial counsel was ineffective in this regard. Furthermore, appellant ignores the fact that trial counsel did in fact present evidence to suggest that James Revak was his wife’s murderer. Accordingly, this claim lacks arguable merit. For the foregoing reasons, appellant’s skeletal claims of trial counsel ineffectiveness are without merit. 2. Failure to Challenge the Evidence Supporting the Rape Conviction Appellant next argues that the murder and rape charges were so intertwined that challenging one would have the effect of weakening the prosecution’s case on the other. Appellant asserts that, given the lack of physical evidence, the only evidence supporting the rape charge was the testimony of Ferry, and that trial counsel did not adequately develop the point. Appellant also claims that appellate counsel was ineffective for failing to raise this issue in post-verdict proceedings or on direct appeal. The Commonwealth responds that this issue was previously litigated on direct appeal. The Commonwealth notes that this Court held that there was compelling physical and circumstantial evidence supporting the rape conviction, including the presence of sperm and seminal fluid consistent with appellant’s blood groupings and genetic characteristics on the victim’s clothing and in her vagina, as well as appellant’s admissions to Ferry and White that he raped and then murdered the victim to prevent her from reporting the rape to the police. See Tedford I, 567 A.2d at 618. The PCRA court agreed, finding that appellant was attempting to relitigate this sufficiency issue under the guise of ineffective assistance of counsel. The current claim lacks arguable merit. At the hearing on appellant’s post-verdict motions, appellant alleged that trial counsel was ineffective for failing to challenge the evidence supporting the rape conviction. Trial counsel testified that he did not consider it important to attempt to contradict the circumstantial evidence of rape because appellant was going to admit to sexual contact, albeit consensual, when taking the stand. Trial counsel was also questioned regarding his decision not to offer testimony impeaching the testimony of Ferry, who had testified that, while in jail, appellant admitted to raping and then murdering the victim so as to prevent her from reporting the rape to the police. Trial counsel stated that Timothy Sunday, the witness who supposedly would have impeached Ferry, declined to testify; and furthermore, trial counsel noted, as appellant’s accomplice in a failed escape attempt, Sunday would have been easily impeached by the Commonwealth. Based on the foregoing, trial counsel’s decision not to mount a further or different challenge to the Commonwealth’s rape evidence was reasonable. Thus, appellant’s derivative appellate counsel ineffectiveness claim lacks arguable merit. Moreover, contrary to appellant’s claim, appellate counsel did indeed address this claim in his post-verdict motions and at the February 1988 evidentiary hearing, so any decision on appellate counsel’s part not to pursue this claim on direct appeal also appears to have been reasonably based. D. Prosecutorial “Misconduct” Appellant next presents three claims derived from waived objections to alleged prosecutorial misconduct at the guilt phase, including supposed: (1) suppression and manipulation of evidence; (2) improper bolstering and discrediting of key witness testimony; and (3) improper comments on appellant’s right to remain silent, the defense’s receipt of discovery, and the credibility of a Commonwealth witnesses. Appellant asserts that, as constitutional violations, these claims have arguable merit and trial counsel’s failure to object constituted ineffective assistance of counsel. Appellant then appends his customary declaration that appellate counsel was ineffective for failing to raise related claims of trial counsel ineffectiveness on direct appeal. As with his claims above, appellant has failed to identify and distinguish which claims have been previously litigated and which of these claims were waived. That lapse alone permits rejection of the underlying claims, which in turn, eviscerates the cognizable layered claims. The phrase “prosecutorial misconduct” has been so abused as to lose any particular meaning. The claim either sounds in a specific constitutional provision that the prosecutor allegedly violated or, more frequently, like most trial issues, it implicates the narrow review available under Fourteenth Amendment due process. See Greer v. Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (“To constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.”) (internal quotation marks omitted); Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974) (“When specific guarantees of the Bill of Rights are involved, this Court has taken special care to assure that prosecutorial conduct in no way impermissibly infringes them.”). However, “[t]he Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.” Mabry v. Johnson, 467 U.S. 504, 511, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). The touchstone is the fairness of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982). If the defendant thinks the prosecutor has done something objectionable, he may object, the trial court rules, and the ruling — not the underlying conduct — is what is reviewed on appeal. Where, as here, no objection was raised, there is no claim of “prosecu-' torial misconduct” as such available. There is, instead, a claim of ineffectiveness for failing to object, so as to permit the trial court to rule. Cf id. Moreover, ineffectiveness claims stemming from a failure to object to a prosecutor’s conduct may succeed when the petitioner demonstrates that the prosecutor’s actions violated a constitutionally or statutorily protected right, such as the Fifth Amendment privilege against compulsory self-incrimination or the Sixth Amendment right to a fair trial, or a constitutional interest such as due process. Cf. Carson, 913 A.2d at 236 (“In order to obtain relief for alleged prosecutorial ‘misconduct/ a petitioner must first demonstrate that the prosecutor’s action violated some statutorily or constitutionally protected right.”). With this background in mind, we turn to appellant’s layered claims of ineffective assistance of counsel based on the underlying claims of objectionable prosecutorial conduct. As detailed below, the underlying claims lack arguable merit. 1. Suppression and Manipulation of Evidence Appellant first claims that the prosecution suppressed material, exculpatory evidence in violation of due process under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Reloading his accusatorial shotgun, appellant alleges that the prosecution failed to disclose: (1) results of the striation analysis; (2) audiotapes of interviews with witnesses James Revak and Liz Manuel; (3) an interview of alibi witness Dr. Timothy McCormick; (4) reports of the further investigation referred to in affidavits of probable cause which placed appellant in his place of employment, from 9:00 a.m. to 9:00 p.m.; (5) UPS logs showing a delivery to The Finishing Touch on the morning of January 10th, the day of the rape and murder; (6) photographs and drawings of the crime scene; (7) laboratory drawings; (8) a police report regarding the victim’s car; and (9) evidence of the plea agreements made with prosecution witnesses Ferry and Christopher White. Appellant states that “[bjecause none of these items were ever provided to the defense, [ajppellant cannot demonstrate precisely how they will undermine confidence in the outcome of the trial when produced.” Appellant’s Brief at 52. Appellant never states the basis for his belief that these particular items that he has never seen even exist. Notwithstanding this confession that he cannot make out his claims, appellant maintains that the “potentially” exculpatory value of the undisclosed evidence is readily apparent. Focusing on the alleged “deals” between the Commonwealth and White and Ferry, appellant also argues that evidence of such agreements would implicate the witnesses’ credibility and should have been made available to trial counsel for impeachment purposes. Appellant also states that he has “affidavits” supporting the claims that Ferry and White testified falsely. The Commonwealth responds that none of the items appellant complains of not receiving is exculpatory, and states that these issues, as well as their presentation as ineffectiveness claims, were previously litigated and held by this Court to be meritless in Tedford I. Regarding evidence of alleged agreements with prosecution witnesses, the Commonwealth asserts that this claim is only cognizable as a layered ineffectiveness claim, but lacks arguable merit because the record demonstrates that Ferry and White had no established “deals” with the Commonwealth, but were only hoping for some positive consideration in exchange for their testimony. Prior to issuing its opinion, the PCRA court denied appellant’s request for discovery on these claims, finding that appellant had failed to show that good cause existed to allow discovery. In its discovery opinion, the PCRA court found appellant’s many discovery requests to be broad and improper. Far from showing any specific basis or necessity for the requested evidence, review of the PCRA court’s discovery opinion demonstrates that appellant’s only basis for requesting PCRA discovery often was that the evidence may be exculpatory depending on its content. In its PCRA opinion, the court incorporated its discovery denial and dismissed this claim because appellant did not demonstrate that the evidence was exculpatory or that the failure to disclose was prejudicial. A Brady violation consists of three elements: (1) suppression by the prosecution (2) of evidence, whether exculpatory or impeaching, favorable to the defendant, (3) to the prejudice of the defendant. Commonwealth v. Paddy, 569 Pa. 47, 800 A.2d 294, 305 (2002). No violation occurs if the evidence at issue is available to the defense from non-governmental sources. More importantly, a Brady violation only exists when the evidence is material to guilt or punishment, i.e., when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id. Similar to appellant’s original discovery request, which was overbroad, improper, and lacking in good cause, his current prosecutorial “misconduct” claim fails to set forth any basis that the allegedly suppressed evidence is exculpatory or favorable to the defense, and that he was prejudiced by its alleged suppression. Appellant merely states that: [t]he potentially exculpatory value of these items ... is readily apparent. For example, any favorable evidence that was not disclosed with respect to [the striation analysis] would tend to discredit the prosecution theory that twine from [T]he Finishing Touch was the murder weapon. Moreover, any favorable evidence with respect to [reports of “further investigation” referred to in the affidavit of probable cause and the UPS log] would rebut the prosecution theory as to how the crime took place and create doubts about [a]ppellant’s guilt. Appellant’s Brief at 52. Appellant’s claim is comprised entirely of conjecture. Appellant must affirmatively demonstrate exculpability; asserting the “potential exculpatory value” of “any favorable evidence” is insufficient. Moreover, appellant has not even proven the existence of some of the evidence, such as alleged undisclosed crime scene drawings, striation analysis, and the UPS log. As for the alleged agreements between the Commonwealth and prosecution witnesses Ferry and White, the record indicates that no such agreements existed. Ferry testified that he only hoped that the prosecution would mention his assistance to the Parole Board, and when questioned by trial counsel, White testified that he had never heard of inmates at his prison making deals with the authorities to help themselves. Because appellant has not satisfied any of the Paddy elements with regard to any of his Brady claims, the underlying claims fail. Respecting appellant’s alternative couching of his Brady claims in boilerplate terms of ineffective assistance of counsel, we note that because the underlying Brady claims fail, any derivative ineffective assistance of counsel claim lacks arguable merit. 2. Witness Credibility Appellant’s second claim involves the alleged improper bolstering of a Commonwealth witness and the discrediting of the defense alibi witness. Appellant maintains that his fair trial rights were violated when the prosecution recalled Trooper Stanek to recount the information Ferry had offered the police. Appellant asserts that this rebuttal constituted inadmissible hearsay, was neither relevant nor proper rehabilitation, and impermissibly vouched for Ferry’s credibility. Appellant also contends that Trooper Peters’ testimony was improperly offered to demonstrate that the police did not believe the testimony of McCormick, appellant’s alibi witness, regarding when appellant arrived at and departed from his home. Appellant argues that appellate counsel was ineffective for failing to raise tidal counsel’s failure to object to the alleged improper bolstering of Ferry and alleged improper discrediting of McCormick. The Commonwealth counters that Trooper Stanek’s rebuttal testimony was clearly admissible to rehabilitate Ferry, who had been impeached by trial counsel on cross-examination. The Commonwealth further notes that Trooper Stanek did not vouch for Ferry’s truthfulness or refer to evidence not of record, as disapproved by Commonwealth v. Reed, 300 Pa.Super. 224, 446 A.2d 311, 314 (1982). Additionally, the Commonwealth asserts that Trooper Peters’ rebuttal testimony permis sibly cast doubt on McCormick’s memory of the night in question. The Commonwealth thus argues that trial and appellate counsel cannot be ineffective for failing to make meritless objections or baseless claims. The PCRA court dismissed this claim, finding that neither instance could give rise to ineffective assistance because: (1) the underlying claims of misconduct lack arguable merit; (2) trial counsel had no reasonable basis for objecting to the testimony; and (3) appellant was not prejudiced. It is well established that the prosecution may not inject a “highly prejudicial personal opinion of [an] appellant’s credibility into evidence, thereby clearly and improperly intruding upon the jury’s exclusive function of evaluating the credibility of witnesses.” Commonwealth v. Kuebler, 484 Pa. 358, 399 A.2d 116, 118 (1979) (quoting Commonwealth v. Potter, 445 Pa. 284, 285 A.2d 492, 493 (1971)). However, “as long as a prosecutor does not assert his personal opinions, he or she may, within reasonable limits, comment on the credibility of a Commonwealth witness. This is especially true when the credibility of the witness has been previously attacked by the defense.” Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621, 639 (1995) (citation omitted). This stems from the general principle that the prosecutor is permitted to respond to the arguments of the defense and “is free to present his or her case with logical force and vigor.” Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 240 (1999). Of course, improper commentary on a witness’ credibility may be achieved through means other than the prosecutor’s own statements, such as eliciting improper comments from a Commonwealth witness, see Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322, 328 (1983), or by admitting the plea agreements of Commonwealth witnesses into evidence to vouch for their credibility, see Commonwealth v. Bricker, 525 Pa. 362, 581 A.2d 147, 154-55 (1990) (“[B]y admitting into evidence [the plea] agreements that vouch for their credibility, the government was testifying sub silentio that ‘just this once’ these lowlife witnesses should be believed; that ‘during this trial’ they are crowned with the governmental halo of ‘being on the right side’ and are therefore credible.”) (emphasis omitted). Presently, we see no error in the PCRA court’s ruling that the underlying claims lack merit. As a witness for the Commonwealth, Ferry testified to details of appellant’s crimes as confessed to him by appellant while the two were in jail. On cross-examination, trial counsel impeached Ferry by implying that he could have learned the details of the crime from newspaper and television reports. In an effort to rehabilitate Ferry’s testimony, the prosecution offered rebuttal evidence in the form of Trooper Stanek’s testimony. Trooper Stanek’s testimony was intended to' demonstrate that Ferry possessed information known only to the murderer. Moreover, Trooper Stanek did not offer his own personal opinion of Ferry’s testimony; indeed, he merely described how Ferry’s testimony affected the State Police investigation. The prosecutor did not inject a personal opinion on a particular witness’ credibility, nor did he improperly elicit testimony vouching for the credibility of a witness. Here, trial counsel cannot be deemed ineffective for failing to object. Respecting the testimony of Trooper Peters, appellant claims this testimony was offered to show that the police did not believe McCormick, appellant’s alibi witness. Contrary to appellant’s assertion, Trooper Peters was properly called as a rebuttal witness. Trooper Peters’ testimony was intended to cast doubt on McCormick’s memory of the evening in question and merely recounted the Trooper’s exchange with McCormick regarding the time appellant arrived at McCormick’s residence and the fact that McCormick had been drinking alcohol. Neither of these two instances constituted a situation where the prosecution, either personally or through a witness, vouched for or discredited, through opinion, the credibility of a witness. Therefore, as no misconduct occurred, appellant’s underlying claims of prosecutorial misconduct are baseless, and thus, any derivative layered claim of ineffective assistance of counsel lacks arguable merit. 3. Other Claims of Misconduct Finally, appellant claims that the prosecutor improperly commented on his right to remain silent, the defense’s receipt of discovery, and the credibility of Commonwealth witnesses. The disputed comments are, respectively, as follows: (1) a comment the prosecutor made during his opening statement to the jury: “So I ask you to listen as closely as you can to the evidence. All the evidence, both the Commonwealth evidence and the defense evidenee[,]” N.T., 2/2/87, at 28; (2) the prosecutor’s comment during his closing statement that the defense “had all the evidence,” N.T., 2/6/87, at 669-70; and (3) other closing comments regarding “how much time and effort the police had put in this case,” and that just because Ferry and White had bad criminal records did not mean that appellant did not confide in them, id. at 673, 706. Appellant declares that any potential waiver in failing to object to the remarks is overcome by the ineffectiveness of all prior counsel. The Commonwealth responds that the PCRA court properly found each of these claims to be without merit. The Commonwealth asserts that, as with appellant’s other claims, these claims are waived as to trial counsel’s representation and only cognizable as claims of ineffective assistance of appellate counsel. The PCRA court concluded that the claims lacked arguable merit after finding that the comments did not have the unavoidable effect of prejudicing the jury. “Comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and render a fair verdict.” Miller, 746 A.2d at 601-02. The prosecution’s statements are unobjectionable if they are based on the evidence or proper inferences therefrom, or represent mere oratorical flair. See Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1006 (2002). Additionally, the prosecution must be permitted to respond to arguments made by the defense. Carson, 913 A.2d at 237. Review of the record demonstrates that these “nested” claims of trial counsel ineffectiveness were addressed in post-trial motions, though they were not necessarily renewed on direct appeal. We see no error in the PCRA court’s finding that the comments were not so objectionable and prejudicial that appellate counsel was unreasonable for declining to pursue the claims on direct appeal. First, appellate counsel was not obliged to view the innocuous remark requesting the jurors “to listen as closely as [they] can to the evidence” of both sides as “misconduct” designed to implicate and burden appellant’s right to remain silent. Indeed, moments before making the now-disputed comment, the prosecutor added the proviso “if the defense elects to present any.” N.T., 2/2/87, at 26. In addition, the defense did in fact present evidence, including the testimony of appellant himself. And, finally, a reference to defense evidence is broader than a specific reference to evidence from the defendant’s own mouth. We note also that this claim fails as’ one sounding in ineffectiveness because trial counsel did in fact request a mistrial in response to these comments, but the motion was denied. See id. at 29-31. Furthermore, and in any event, we agree with the PCRA court that the remark was not prejudicial. Second, respecting the comments in closing that the defense “had all the evidence,” we again agree with the PCRA court that there was no prejudice. The allegedly improper comments were as follows: The evidence the defendant heard was no surprise. The defense had all the police records in this ease. You perhaps noticed the slip of the tongue the defendant made today when [one of the prosecutors] was asking him a question about something: Did he remember something or the other? He said: Well, I’m not sure if I know that from my memory or from reading a police report. That gives you an understanding of exactly what happens in this case. Defendant’s testimony yesterday was designed to weave its way through the evidence. He had all the evidence. He knew what the Commonwealth had and what it didn’t. He attempted yet to weave his way through the evidence explaining away what we proved and ignoring what we could not prove. N.T., 2/6/87, at 669-70 (emphasis added). Appellant argues that such a comment attempts to “penalize the defense for exercising it rights to discovery” and could be generally used to impeach the credibility of every witness who testifies in his own defense. Appellant’s Brief at 70. Appellant’s contentions, however, are not supported by the cited text. The prosecutor was merely commenting upon the way in which appellant’s testimony attempted to respond to the Commonwealth’s evidence. Moreover, the prosecutor’s point is accurate: the defendant in a criminal case is not subject to sequestration like other witnesses, and so is uniquely positioned to tailor his testimony to try to account for whatever damning evidence the jury has heard. Highlighting that reality is not improper. We fail to see how such fair comment burdens a defendant’s discovery rights; certainly, appellant cites no governing authority for such a proposition, and appellate counsel cannot be faulted for failing to forward an argument unsupported by existing law. Third, appellant claims that the following statements improperly vouched for the thoroughness of the police investigation and credibility of the Commonwealth’s case: The defendant made no effort to try to help the police with their investigation if what he is telling you is the truth and someone else murdered Jeanine Revak. You have seen how much time and effort the police had put in this case. If we assume for a minute what the defense was telling us yesterday was true, you can imagine how much help it would have been to the police.... But the defendant didn’t cooperate with the police. And, yet, on the stand he couldn’t even try to counterfeit an emotion of concern for her death. N.T., 2/6/87, at 678-74 (emphasis added). Trial counsel did not object. Taken in context, these comments were not improper and prejudicial. The jury had before it evidence of the extent of the police investigation. The prosecutor merely commented upon appellant’s lack of concern for the police investigation into the victim’s rape and murder, which seemed to- contradict appellant’s claim that he had a friendship, as well as recurring romantic encounters, with the victim. We fail to see how such commentary amounts to improper vouching, such that counsel was constitutionally obliged to object, and appellate counsel was obliged to pursue the claim. Appellant also claims that the following comments in closing constituted the prosecutor’s improper vouching for witness credibility: Now Ferry and White both have bad records. Worse than bad. They got horrible records. That is no secret. We told you that.... No secrets. It doesn’t necessarily mean that the defendant didn’t confide in them. N.T., 2/6/87, at 706. Again, it is not self-evident why these comments should be deemed objectionable as a matter of law. The prosecutor merely made the unexceptional observation that the fact that Ferry and White had criminal records did not mean that appellant would not have confided in them. The prosecutor did not thereby improperly bolster or vouch for the credibility of the two witnesses. Therefore, this claim of prosecutorial misconduct, and all derivative ineffectiveness claims lacks arguable merit. Finally, appellant asserts that the Miller “unavoidable effect” standard employed by the PCRA court is inconsistent with the standards applied by the U.S. Supreme Court to evaluate prosecutorial misconduct claims. Citing Donnelly, supra, appellant states that the High Court recognizes two types of prosecutorial misconduct claims: (1) generalized claims of misconduct, which are reviewed to determine if the error “so infected the trial with unfairness as to make the resulting conviction a denial of due process”; and (2) claims implicating specific guarantees of the Bill of Rights. See Donnelly, 416 U.S. at 643, 94 S.Ct. 1868. Appellant contends that the “unavoidable effect” standard is inconsistent even with Donnelly’s generalized claims standard. Appellant’s argument, however, is empty. The Miller “standard” is merely another way of stating the proposition that for a prosecutor’s comments to be a basis for reversible trial court error, they must affect the defendant’s right to a fair trial or deny him due process. Appellant’s legal argument is therefore without merit. And, just as importantly, this side argument does not operate to advance appellant’s cognizable claim, which must satisfy Strickland prejudice at two levels. E. Jury Consideration of Work-Release Status Appellant’s next claim stems from evidence of his work-release status. Over trial counsel’s continuing objection, the prosecutor mentioned appellant’s work-release status in his opening statement and later presented the testimony of the record supervisor at the State Correctional Institution at Greensburg who testified that appellant was on work release and was granted a furlough from the morning of Friday, January 10th to the evening of Monday, January 13, 1986. The record supervisor also testified that appellant did not arrive by his January 13th, 9:00 p.m. deadline. Susan Blackburn, appellant’s friend who had dinner arrangements with appellant for that January 10th, the day of the rape and murder, testified that during the week preceding January 10th, appellant had told her that he would not be able to meet her for dinner because his furlough had not been approved. Additionally, appellant himself testified to his work-release status, noting that “status on work release is very sensitive” and easy to lose. N.T., 2/5/87, at 554. In the following exchange, appellant admitted to lying to Susan Blackburn about losing his furlough so that he could avoid seeing her: [Trial Counsel]: What had you told [Susan Blackburn] earlier in the week about your status over the week end [sic] and your ability to see her? Tell what you told her. [Appellant]: I had told Susan that I had to return to Greensburg. [Trial Counsel]: Why? [Appellant]: I had promised Liz [Manual] earlier to see her. I had promised Tim [McCormick] that I would spend some time with him, because he had been awarded his license. I wanted to see Diane. It was very confusing. And I simply didn’t need any more of this. I lied to cover these things up and that the he had snowballed and that’s what’s put me here today. Id. at 551. In its guilt phase charge, the trial court instructed the jury on its consideration of this evidence as follows: There was evidence tending to prove that the defendant was on work release. I’m speaking of the evidence introduced by the Commonwealth and the testimony of the defendant as [to] the defendant’s work release from Greensburg. This evidence is not evidence of the defendant’s guilt. You must not infer guilt from the evidence of work release. This evidence may be considered by you for one purpose only, that is, to help you judge the credibility and weight of the testimony given by the defendant as a witness in this trial. N.T., 2/6/87, at 749-50. Trial counsel did not object to the charge. On direct appeal, appellant claimed that the trial court erred in permitting the introduction of evidence relating to appellant’s work-release status because it served no compelling purpose and was inherently prejudicial. This Court held that the trial court properly allowed the admission of appellant’s work-release status for three purposes: (1) to establish his motive for the murder; (2) to demonstrate premeditation in his planning of the rape and murder; and (3) to prove consciousness of guilt through appellant’s failure to return to the prison at the conclusion of his furlough. Tedford I, 567 A.2d at 621. Appellant currently claims that the trial court’s cautionary instruction was erroneous because appellant’s work release situation was irrelevant to his credibility. Appellant maintains that he does not seek to relitigate the admissibility of the work-release evidence, a claim which was previously litigated on direct appeal, but rather contends that appellate counsel was ineffective for failing to raise trial counsel’s failure to request a limiting instruction when the evidence was initially admitted and trial counsel’s failure to object to the court’s closing charge. The Commonwealth responds that this issue was previously litigated on direct appeal. The Commonwealth asserts that appellant is attempting to repackage the admissibility issue into a challenge to the cognate jury instructions. The PCRA court agreed, considering this claim to be previously litigated and finding that appellant was attempting to relitigate this issue under an ineffectiveness of counsel theory. The PCRA court concluded that the jury instruction appellant presently faults was related to the three reasons this Court held that evidence of appellant’s work-release status was admissible. As this Court discussed in Tedford I, because appellant’s work-release status gave rise to relevant circumstantial evidence of his guilt in this matter, we rejected appellate counsel’s challenge to its admissibility. Appellant’s current claim relates to trial counsel’s failure to raise a related, but distinct, challenge focusing on the adequacy of the trial court’s instruction. Contrary to the PCRA court’s conclusion that this claim was previously litigated, this Court’s opinion in Collins requires that such a Sixth Amendment claim be considered separate and distinct from the underlying claim of trial error. Collins ’ mandate, however, does not save appellant’s derivative ineffectiveness claim because it is lacking in arguable merit. Evidence of a defendant’s prior crimes is generally not admissible solely to show his bad character or propensity for committing criminal acts. See Pa.R.E. 404(b)(1); Commonwealth. v. Billa, 521 Pa. 168, 555 A.2d 835, 840 (1989). Evidence of other crimes may be admitted for other relevant purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident,” though it should only be admitted if the probative value of the evidence outweighs its potential for prejudice. Pa.R.E. 404(b)(2)-(3); see also Billa, 555 A.2d at 840. When such evidence is admitted, however, the defendant is entitled upon request to a jury instruction explaining to the jury that the specific evidence is only admissible for one or more of the above-described limited purposes. Billa, 555 A.2d at 841-42. “An instruction will be upheld if it clearly, adequately and accurately reflects the law.” Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1287 (2000) (citing Commonwealth v. Hawkins, 549 Pa. 352, 701 A.2d 492, 511 (1997)). Additionally, the trial court is permitted to use its own form of expression to explain difficult legal concepts to the jury. Id. Finally, the jury is presumed to follow the court’s instructions. Commonwealth v. Speight, 578 Pa. 520, 854 A.2d 450, 458 (2004). Presently, we cannot find counsel ineffective for failing to object to the instruction in this case. As we noted on direct appeal, this work-release-related evidence in fact was admissible for multiple purposes: motive, premeditation, and consciousness of guilt. But, as our quotation of the court’s charge above reveals, the trial court in fact gave an instruction which limited consideration of the evidence to a different and narrower point: credibility arising from the fact that appellant lied to a friend about his work-release status. Contrary to appellant’s current argument, the lie respecting work release and furlough was relevant to the motive and premeditation points. Appellant’s work-release status was, in general terms, relevant to judging the weight and credibility of appellant’s entire account of the weekend of January 10th against the Commonwealth’s theory of the case, which naturally relied upon appellant’s circumstances, including his work-release status and furlough from prison. The charge was favorable to the defense to the extent that it narrowed the jury’s consideration of the evidence, and an objection would have risked a broader charge encompassing all relevant purposes. Furthermore, it must be emphasized, the trial court’s charge addressed head-on the only potential for unfair prejudice arising from the evidence, squarely telling the jury that it should not infer guilt from the evidence of appellant’s work release and that it was admitted for the limited purpose of gauging the weight and credibility of appellant’s testimony. The jury is presumed to have followed the court’s charge, see Speight, supra, and the charge here removed the prospect of prejudice. In light of trial counsel’s continuing objection and the trial court’s favorable narrow limiting instruction, we find that trial counsel was not ineffective. Because the trial court’s instruction was not in error and trial counsel was not ineffective, any derivative layered claim of ineffective assistance of counsel lacks arguable merit. F. Jury Relied on Ecclesiastical Law— Guilt & Penalty Phases Appellant’s next claim implicates both the guilt and the penalty phases. Appellant maintains that, in reaching their verdict and sentence, jurors relied upon ecclesiastical law rather than solely upon the law of the Commonwealth, which, if true, would constitute a violation of appellant’s rights under the First, Sixth, and Eighth Amendments of the U.S. Constitution and the corresponding provisions of the Pennsylvania Constitution. Specifically, appellant contends that unsworn juror declarations his counsel gathered some nine or ten years after trial describe how one juror always carried the Bible, would lead the jury in prayer, and read verses from the Bible during deliberation. Appellant claims that appellate counsel was ineffective for failing to investigate and develop this issue in post-verdict motions and raise it on direct appeal. Appellant maintains that relief is not precluded by the fact that appellate counsel did not know that the jurors allegedly relied upon ecclesiastical law because his failure to investigate was unreasonable. Appellant seems to imply that appellate counsel’s awareness of prior juror exposure to potentially prejudicial newspaper information at voir dire gave rise to a duty to interview jurors. He then speculates that, by interrogating jurors, counsel may have stumbled across their exposure to other improper and/or prejudicial information during deliberation, including the information he includes in the juror declarations he attaches. The Commonwealth counters that the claim is waived because the allegations forming the basis for relief were unknown until 1996, well after the conclusion of the direct appeal in 1989. It is ludicrous, argues the Commonwealth, to suggest that counsel can be ineffective for failing to raise a claim which he had no reason to know existed. The Commonwealth notes that allegations of prayer in the jury room only became known after present PCRA counsel’s organization (the Federal Court Division of the Defender Association of Philadelphia) entered its appearance on behalf of appellant. The Commonwealth also asserts that it is improper for attorneys to elicit post-verdict declarations or evidence from jurors for the purpose of impeaching the verdict and, citing Commonwealth v. Zlatovich, 440 Pa. 388, 269 A.2d 469, 473 (1970), states that Pennsylvania law prohibits jurors from recounting their mental process in reaching their verdict. The PCRA court concluded that this ineffectiveness claim is waived and, based on reasoning similar to that put forth by the Commonwealth, lacks arguable merit. The court found consideration of the juror declarations to be improper and, after reviewing the declarations, concluded that, even if proper, the declarations do not provide support for appellant’s claim because they do not demonstrate that the jurors read the Bible and considered biblical verses during deliberations. The PCRA court also noted that the declarations were obtained in late 1996 and early 1997, well after both trial and appellate counsel’s representation had ended. It is a general rule of law that a juror may not impeach the jury’s verdict after the jury has been discharged, though an exception to this rule is made in situations where the jury was exposed to an ex parte influence which possesses a reasonable likelihood of prejudice. Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 451 (1999) (quoting Commonwealth v. Laird, 555 Pa. 629, 726 A.2d 346, 356 (1999)). Although they may testify to the existence of an outside influence, jurors are prohibited “from testifying as to the effect which these extra-evidentiary influences had upon the jurors in reaching a decision,” just as jurors are prohibited from recounting the mental processes by which they arrived at their verdict. Zlatovich, 269 A.2d at 473 (emphasis omitted). Additionally, we reiterate, this Court long ago noted that “interviewing jurors after a verdict and obtaining from them ex parte, unsworn statements in answer to undisclosed questions and representations by the interviewers is highly unethical and improper and was long ago condemned by this court.” Commonwealth ex rel. Darcy v. Claudy, 367 Pa. 130, 79 A.2d 785, 786 (1951). Assuming, for purposes of decision, the legitimacy of appellant’s juror declarations, we reject the notion that appellate counsel was obliged to interview jurors to prepare the direct appeal. • “Counsel has a duty to undertake reason-' able investigations or to make reasonable decisions that render particular investigations unnecessary.” Commonwealth v. Basemore, 560 Pa. 258, 744 A.2d 717, 735 (2000) (citing Strickland, 466 U.S. at 691, 104 S.Ct. 2052) (emphasis added); accord Wiggins, 539 U.S. at 521-23, 123 S.Ct. 2527 (analysis of ineffectiveness claim for failure to investigate must “focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable”). Thus, counsel cannot be deemed ineffective for failing to investigate and introduce information he could not possibly have known about, so long as counsel’s decision not to investigate was reasonable. See Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1083 (2006) (“[Cjounsel cannot be deemed ineffective for not introducing information uniquely within the knowledge of the defendant and his family which is not supplied to counsel.”); Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 788 (2004) (counsel cannot be ineffective for failing to pursue particular mitigating evidence where counsel had no notice of such evidence). However, “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Wiggins, 539 U.S. at 528, 123 S.Ct. 2527 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). The circumstances of Sneed and Malloy, as well as the U.S. Supreme Court cases cited by appellant, are inapposite to appellant’s present claim. In those cases, counsel failed to conduct even the most cursory of investigations into his client’s background for the purpose of presenting mitigation evidence at sentencing. Capital counsel obviously have a duty to conduct reasonable investigations into mitigation evidence. But counsel do not have a recognized duty to interview jurors in the hopes of uncovering a collateral claim by which to undo the verdict. Furthermore, the fact that there was an issue in voir dire concerning juror exposure to media accounts does not give rise to a duty to go on a post-verdict fishing expedition into other, distinct, unrelated, speculative “jury influences.” As the PCRA court recognized, there is no evidence that counsel knew that the Bible was present in the jury room and was being relied upon for an improper purpose. Additionally, given that post-verdict questioning of jurors is strongly discouraged and that jurors generally may not impeach their verdict, appellate counsel’s “failure” to question jurors in search of such a claim was perfectly reasonable. Finally, we agree with the trial court that the alleged presence of the Bible in the jury room and the occasional prayer do not prove improper use of the Bible as was at issue in Chambers. The presence of the Bible, and of prayer, do not mean that it was a factor in the jury’s deliberation, much less that the jury somehow substituted biblical teachings for the governing law, and those substitute teachings were somehow harmful to appellant’s case. For the foregoing reasons, this claim of ineffective assistance of counsel is without merit. G. Improper Victim Impact Evidence— Guilt & Penalty Phases Appellant argues that his next claim also implicates both the guilt and penalty phases of trial. Appellant alleges that the Commonwealth was improperly permitted to introduce victim-impact evidence at trial, i.e., evidence of the victim’s attrac tiveness. Over trial counsel’s objection, the trial court permitted the Commonwealth to introduce evidence regarding the victim’s appearance through testimony, but prohibited admission of a photograph of the victim. James Revak, the victim’s husband, testified as follows: [Commonwealth]: Mr. Revak, would you describe your wife to us, please? [Revak]: She was around five six, five seven, brown hair, brown eyes, and she was beautiful in my opinion. [Commonwealth]: And everyone else’s? [Revak]: Very much so. N.T., 2/3/87, at 164. Appellant contends that this testimony was irrelevant, inflammatory, and prejudicial, and was not elicited to show motive for rape because there is no motive element to rape. Appellant also states that the Commonwealth had the photograph of the victim in the courtroom and speculates that, although it was not admitted, it was still seen by the jury. Appellant claims that: (1) trial counsel was ineffective for supposedly failing to object; and (2) appellate counsel was ineffective for failing to raise this issue on direct appeal. Appellant also maintains that, although the evidence was presented at the guilt phase, the evidence affected the penalty phase because the trial court instructed the jury to consider “all” the evidence heard in the case-in-chief. The Commonwealth responds that the testimony regarding the victim’s beauty was not victim-impact testimony because it was admitted, and properly so, only to show motive based on appellant’s statements to fellow prisoners that he was attracted to the victim. Thus, asserts the Commonwealth, appellant’s claim lacks arguable merit. The Commonwealth also contends that appellant cannot demonstrate that he was prejudiced by this passing reference to the victim’s appearance and that any possibility that the testimony tainted the penalty phase is improbable. The PCRA court concluded that this claim lacks arguable merit. The court found that the testimony was appropriate to establish motive and noted that the alleged victim-impact testimony was presented at the guilt stage, whereas in Fisher and Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253, 1259-60 (1996), the presentation of the victim-impact evidence, which was deemed to require a new penalty phase, was introduced at sentencing. Appellant’s claim that trial counsel was ineffective clearly lacks arguable merit because trial counsel did in fact object to the presentation of evidence on the victim’s attractiveness. In fact, the sidebar conference addressing trial counsel’s objection takes up over eight pages of the transcript and trial counsel’s objection to the admission of the photograph of the victim was sustained. Therefore, appellant’s claim that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on appeal also lacks arguable merit. To the extent appellant’s claim sounds only in appellate counsel ineffectiveness, it also fails because the trial court’s ruling was proper. For one thing, James Revak’s testimony did not implicate “victim impact.” He did not testify to the devastation he or family members suffered after his wife was brutally raped and murdered. He testified to her looks. See 42 Pa.C.S. § 9711(a)(2) (describing victim-impact evidence as “evidence concerning the victim and the impact that the death of the victim has had on the family of the victim”). Evidence of the victim’s attractiveness was admissible in this case to explain appellant’s reason for targeting this particular victim. As Ferry described, appellant himself had stated that he was attracted to the victim. Although motive is not an element of the crime of rape, such evidence may be relevant. Evidence to prove motive, intent, plan, design, ill will, or malice is always relevant in criminal cases. Commonwealth v. Gwaltney, 497 Pa. 505, 442 A.2d 236, 241 (1982). Here, appellant’s motive was relevant to show that he was the one who committed the crime. The victim of a murder is not merely a prop, and references to her humanity are not inherently and unfairly prejudicial. In this case, as Ferry’s testimony made clear, appellant’s focus on the victim was not generic or arbitrary. He focused on her precisely because of her looks. Finally, as the PCRA court noted, at the time of trial the capital sentencing scheme precluded victim-impact evidence at the penalty phase, and, unlike Fisher and McNeil, the testimony sub judice was admitted at the guilt phase for a valid purpose and it was never argued as victim impact at the penalty phase. Therefore, appellant’s underlying claim is not cognizable under the prior capital sentencing scheme’s prohibition on victim-impact evidence as described in Fisher and McNeil. Accordingly, appellant’s claim that appellate counsel was ineffective for failing to raise this meritless claim on direct appeal lacks arguable merit. II. PENALTY PHASE CLAIMS A. Waiver of Right to Present Mitigation Evidence Turning to the penalty phase, appellant first argues that his waiver of his right to present mitigating evidence was invalid because it was not knowing, intelligent, and voluntary. Appellant argues that the record shows that he was not told and did not understand that he would face an “automatic” death sentence without the presentation of mitigating evidence. Appellant asserts that a death sentence would be “automatic” in the absence of mitigation because the jury had already found one of the aggravators. This is so, appellant says, because the jury allegedly found him guilty of killing the victim during the course of the rape. Further, appellant contends that, although trial counsel conducted a record waiver colloquy and appellant said he “understood” the nature of capital sentencing proceedings, his responses and explanations to trial counsel’s questions demonstrate that he supposedly did not understand the proceeding. Appellant also maintains that his waiver was the result of trial counsel’s ineffectiveness because trial counsel failed to investigate and inform appellant of available mitigating evidence. Counsel’s duty to protect a defendant’s rights, asserts appellant, is increased when the defendant is mentally or emotionally impaired, as appellant claims he was in the present case. Further, appellant contends that appellate counsel was ineffective for failing to raise this issue on direct appeal. Appellant maintains that prejudice is demonstrated because appellant was sentenced to death as the result of the defective waiver and because, but for counsel’s ineffectiveness, appellant could have presented a compelling case for a life sentence. Responding to the PCRA court’s conclusion that this issue was previously litigated in Tedford I, appellant argues that this Court’s conclusion that appellant could not be compelled to present mitigating evidence did not depend on the validity of his waiver and, therefore, the waiver issue was not previously litigated. The Commonwealth counters that this issue was previously litigated on direct appeal, where this Court concluded that appellant’s mitigation waiver was valid and that the waiver colloquy was free from error. The PCRA court also concluded that this claim was previously litigated and that appellant is presently attempting to relitigate this issue under a new theory based on ineffectiveness. In the alternative, continued the PCRA court, appellant’s ineffectiveness claim lacks arguable merit because it is clear from the record that appellant’s waiver was knowing, intelligent, and voluntary. The circumstances surrounding appellant’s waiver are as follows. After the conclusion of the guilt phase of trial, at a conference in chambers, trial counsel stated, as he had previously advised the court, that weeks before trial appellant instructed trial counsel not to prepare for the sentencing phase. Trial counsel also stated that he urged appellant to meet with his mother and sister, who were present at trial, to discuss the issue of mitigation, but appellant declined. Trial counsel then stated that, against his advice, appellant was formally waiving his right to present mitigating evidence. Trial counsel requested leave to conduct a colloquy to ensure that appellant knowingly understood what he was waiving. Thereafter, counsel conducted a record colloquy with appellant, the relevant portions of which appear below: [Trial Counsel]: So knowing at what stage we are and knowing what the Commonwealth intends to present, and knowing my desire, willingness and ability to go forward and present mitigating factors for you, is it your desire to give up that right and to not present any mitigating factors on your behalf right now? [Appellant]: One more question: How does this affect the possible appeal? [Trial Counsel]: I don’t know the answer to that, because I never had this situation. [Appellant]: Okay. Yes, I give up those rights. * * * * [The Court]: ... Mr. Tedford knows the difference between the burden of proof on aggravating and mitigating? [Trial counsel]: You understand the difference on the burden of proof? [Appellant]: No. [Trial counsel]: The Commonwealth has the burden of proving this beyond a reasonable doubt, that is, they have the burden of proving aggravating circumstances beyond a reasonable doubt. We only have to prove mitigating factors by a preponderance of the evidence. [Appellant]: We only have to prove mitigating factors? [Trial counsel]: We only have to prove those by a lesser standard than the Commonwealth has to prove the aggravating factors. [Appellant]: I understand. Obviously, once again I’m trying to deal with something I feel inside rather than the law. I’m looking back at the court situation and we didn’t have to prove anything there, and it didn’t do any good. Now, we have to prove something. I really don’t have any hope. I understand though this, I understand what you’re saying. [Trial counsel]: Okay, is it your desire to waive the presentation of mitigating factors? [Appellant]: Yes. Why prolong it? Yes. Why waste time with it? [Trial counsel]: All right.... N.T., 2/6/87, at 762-65. The prosecutor then described to appellant what aggravators the Commonwealth would present. Afterwards, trial counsel stated that appellant could present mitigating evidence in the form of testimony from family members, to which appellant replied, “I don’t want to put them through that. I think there’s been enough of that.” Id. at 767. Appellant even requested leave not to attend the penalty phase, but the trial court stated that he was required by law to be present. Later, appellant again firmly stated, “[t]here won’t be any mitigating circumstances.” Id. at 771. In his nunc pro tunc motion for a new trial and arrest of judgment prepared by appellate counsel, appellant claimed that trial counsel was ineffective for failing to present mitigation evidence. Subsequently, on direct appeal, appellant abandoned that version of the claim and converted it into a claim alleging that the trial court had a duty of its own to compel the production of mitigating factors and that it had erred by failing to do so. This Court disagreed and held that a trial court does not have a sua sponte duty to compel the presentation of mitigating evidence against a defendant’s will. Tedford I, 567 A.2d at 626-27. Properly framed, appellant’s current claims can only be that appellate counsel was ineffective for failing to argue that appellant’s waiver was invalid because it was a product of trial counsel ineffectiveness for failing to investigate and adequately explain the available mitigating evidence to appellant, a lapse which supposedly caused appellant’s waiver. With respect to the nested claim concerning trial counsel, we reiterate that, “[c]ounsel has a duty to undertake reasonable investigations or to make reasonable decisions that render particular investigations unnecessary.” Basemore, 744 A.2d at 735. Consideration of a claim of ineffectiveness for failure to investigate must “focus on whether the investigation supporting counsel’s decision not to introduce mitigating evidence of [the defendant’s] background was itself reasonable.” Wiggins, 539 U.S. at 523, 123 S.Ct. 2527 (emphasis omitted); see also Williams, 529 U.S. at 395-99, 120 S.Ct. 1495 (holding counsel ineffective for failing to investigate and present substantial mitigating evidence); Rompilla, 545 U.S. at 393, 125 S.Ct. 2456 (same). However, as the U.S. Supreme Court has recently stressed, where a capital defendant instructs his trial counsel not to offer mitigating evidence, counsel’s failure to investigate mitigation evidence may not be prejudicial under Strickland. Schriro v. Landrigan, 550 U.S. 465, -, 127 S.Ct. 1933, 1941, 167 L.Ed.2d 836 (2007). This Court addressed a similar situation where a defendant directed his attorney not to present mitigating evidence in Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), and stated: A criminal defendant has the right to decide whether mitigating evidence will be presented on his behalf. We will not remove that right and compel admission of such evidence. Defense counsel has no duty to introduce and argue evidence of mitigating circumstances where his client has specifically directed otherwise. Id. at 611-12. In recent years, this Court has held that a properly preserved challenge to the validity of a waiver of mitigating evidence is generally assessed by examining the thoroughness of the colloquy to ensure that the defendant fully understood the nature of the right and the consequences of waiving the right. See Commonwealth v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1282 (2005); see also, e.g., Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997, 1027-29 (2007), cert. denied, -U.S. -, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008); Rega, 933 A.2d at 1034 (Castille, J., joined by Saylor, J., concurring). This Court has assumed in these cases, decided long after the mitigation waiver here, that the waiver of mitigating evidence must proceed according to the constitutional standard of knowing, intelligent and voluntary. See Rega, 933 A.2d at 1028 (discussing Commonwealth v. Wilson, 580 Pa. 439, 861 A.2d 919, 934 (2004) and stating that Pennsylvania demands only that defendant’s waiver be knowing, intelligent, and voluntary); see also Commonwealth v. Puksar, 951 A.2d 267, 288-89 (Pa.2008); Randolph, 873 A.2d at 1282. However, the U.S. Supreme Court has more recently noted that there is, as yet, no constitutional requirement that a defendant’s decision not to introduce evidence be “informed and knowing.” Schriro, 550 U.S. at-, 127 S.Ct. at 1942. Additionally, there is, as yet, no constitutional requirement for “a specific colloquy to ensure that a defendant knowingly and intelligently refused to present mitigating evidence.” Id. at-, 127 S.Ct. at 1943; see also Puksar, 951 A.2d at 288 nn. 10-11. More to the point, there was no requirement of a specific colloquy in 1987, when appellant’s waiver occurred, or in the ensuing two years while appellant’s direct appeal was litigated. Furthermore, a claim alleging that a waiver was constitutionally deficient due to some record-based error obviously is distinct from a collateral claim that the previously unchallenged waiver was invalid due to an external influence, such as the ineffective assistance of counsel. See Mallory, 941 A.2d at 697-98 (jury waiver context) (the “not uncommon my-record-waiver-was-my-lawyer’s-fault claim is far removed from the ‘constitutional, structural’ error that would be at issue if a timely jury demand was wrongly denied”). “[L]awyers have an obligation to counsel their clients in conjunction with the waiver of basic rights” and “[w]hen a presumptively-valid waiver is collaterally attacked under the guise of ineffec tiveness of counsel, it must be analyzed like any other ineffectiveness claim,” and must focus on the totality of relevant circumstances. Id. at 698. For example, in Sam, this Court concluded that the defendant’s waiver of the right to present mitigation evidence was knowing, intelligent, and voluntary where it was clear from the record that the defendant understood the consequences of his waiver after the trial court engaged in an extensive colloquy with the defendant and trial counsel stated for the record the mitigating circumstances he would have argued. Sam, 635 A.2d at 611-12. In any event, what must be controlling here, as it was in Sam, is that the absence of mitigation evidence was at appellant’s specific and unequivocal direction. That decision was first made by appellant weeks before trial. Appellant maintained his stance despite counsel urging him to authorize a mitigation defense. Moreover, as this Court noted on direct appeal, the record colloquy that counsel conducted made clear that appellant understood the nature of the penalty proceeding, his right to present mitigation evidence, the aggravating circumstances the Commonwealth was to pursue, and the differing burdens of proof. Appellant was adamant that trial counsel not pursue any mitigation. Indeed, ignoring the advice of counsel, appellant here refused to allow counsel to call family members to testify on his behalf. Appellant now suggests that, if only counsel would have found other arguments to convince him to change his mind, he might have authorized counsel to present a mitigation defense. That, of course, is pure speculation. Moreover, there was no existing check-list or paradigm for counsel to consult in 1987— certainly appellant has cited none — in order to dissuade a mentally competent client from this decision. Appellant also suggests that counsel in 1987 was obliged to tell him that a failure to present mitigation evidence would certainly lead to a sentence of death because the jury had already found, at the guilt phase, that he killed the victim during the perpetration of a felony — rape. See 42 Pa.C.S. § 9711(d)(6). But, appellant’s assumption is not correct as a matter of fact and as a matter of law. As a matter of fact, the guilty verdict on rape — a charge vigorously contested — did not require the penalty jury to find a specific temporal relationship between the murder and the rape. The penalty phase issue was thus distinct. Moreover, the jury still had to find the specific aggravating circumstance, unanimously and beyond a reasonable doubt. Additionally, there was the ever-present prospect of jury nullification, and all it would have taken was one juror. As a matter of law, the claim fails because appellant can cite no authority, in existence at the time trial and appellate counsel were acting, that required a mitigation waiver to include advice from the defendant’s lawyer that waiver would “certainly” lead to death. Indeed, as Schriro makes clear, to this day there is no such authority. In any event, in the wake of cases such as Schriro and Sam, appellant’s unequivocal direction to counsel is enough to re quire rejection of this ineffectiveness claim. Furthermore, this case cannot be likened to the unreasonable-failure-to-investigate-mitigation cases such as Williams v. Taylor, supra, Wiggins, supra, and Rompilla, supra. In those eases, counsel failed to conduct even the most cursory investigation into apparently readily available mitigating evidence. Here, in contrast, trial counsel did not “decide” not to investigate and decline to present mitigating evidence. Rather, he was instructed not to do so by appellant, notwithstanding counsel’s existing investigation and counsel’s avowed “desire, willingness and ability to go forward” with mitigation evidence. In fact, trial counsel advised appellant to present mitigation, urged him to discuss the matter with his family members who could have presented certain mitigating evidence, notified the court that he had mitigating evidence in the form of family member testimony, and repeatedly informed the court that appellant was proceeding against the advice of counsel. Even assuming the truth of appellant’s facile current allegation — that his waiver reflected a misunderstanding of the sentencing procedure or was caused by mental impairment— that fact would not prove counsel ineffective absent proof that counsel knew or should have known of the misunderstanding or impairment, and knew or should have known that, under the law, that fact authorized him to ignore his client’s direction. Given the circumstances on the record, appellant’s claim that trial counsel was ineffective respecting the mitigation waiver, for failing to investigate and inform appellant about potential mitigating evidence, and/or for failing to realize that appellant’s waiver was infirm lacks arguable merit. The corresponding claim that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal necessarily fails. B. Trial Counsel Ineffectiveness Appellant raises two claims of trial counsel ineffectiveness at the penalty phase. Appellant claims that trial counsel was ineffective for: (1) failing to investigate and present mitigating evidence; and (2) failing to “life-qualify” the jury. Like the guilt phase trial counsel ineffectiveness claims we have addressed above, appellant has not shown that these claims were not previously litigated on direct appeal. In any event, because these nested claims of trial counsel ineffectiveness lack merit, any layered claim of ineffectiveness similarly fails. 1. Failure to Investigate & Present Mitigating Evidence Appellant claims that trial counsel was ineffective for failing to investigate and present mitigating evidence and that appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal. This claim lacks arguable merit because, as addressed at length above, trial counsel did investigate potential mitigating evidence and wanted to present that evidence, but was instructed not to do so by appellant. Moreover, to the extent counsel failed to uncover other evidence of mitigation, his investigation was torpedoed by his client’s directive. Given appellant’s directive not to introduce mitigation, appellant cannot show prejudice. Schriro, supra; Sam, supra. Therefore, appellant’s layered claim of ineffectiveness is without merit. 2. Failure to Ask Prospective Jurors “Life Qualifying” Questions Appellant also claims that trial counsel was ineffective for failing to ask prospective jurors “life qualifying” questions which, he says, resulted in a death sentence violative of due process and the Eighth Amendment. Appellant asserts that five of the jurors have provided declarations indicating that they would automatically impose death in any first-degree murder case and that the presence of such jurors on a capital case amounts to structural error. Appellant argues that this claim is distinguishable from cases like Commonwealth v. Simmons, 569 Pa. 405, 804 A.2d 625, 638 (2001) (OAJC), where ineffectiveness claims were rejected based on counsel’s failure to life-qualify the jury, because at least five of the jurors here supposedly shared an actual and disqualifying bias against imposition of a life sentence. The Commonwealth counters that this Court has previously-rejected such a claim in cases like Simmons, supra, and Commonwealth v. Williams, 557 Pa. 207, 732 A.2d 1167 (1999). The PCRA court agreed and dismissed appellant’s claim as lacking in arguable merit and legally insufficient. “ ‘Life qualification’ is the process by which prospective jurors are excluded from the jury based on their fixed opinion that the death penalty must be imposed for a first degree murder conviction.” Commonwealth v. Speight, 578 Pa. 520, 854 A.2d 450, 459 (2004). Although a defendant wishing to life-qualify the jurors on voir dire must be permitted to do so, Morgan v. Illinois, 504 U.S. 719, 735-36, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), there is no general requirement to life-qualify jurors, and thus counsel cannot be deemed ineffective for failing to do so. Carson, 913 A.2d at 262; see also Rega, 933 A.2d at 1019-20 (“[Although trial counsel is permitted to life-qualify the jury, such questions are not required and counsel is not per se ineffective for failing to pose them as long as the jury selection process is otherwise fair and impartial.”); Speight, 854 A.2d at 459 (defendant-not prejudiced by counsel’s failure to life-qualify jurors even though jurors were “death-qualified”); Commonwealth v. Morris, 546 Pa. 296, 684 A.2d 1037, 1043 (1996) (counsel’s failure to ask life-qualifying questions during voir dire did not support claim of ineffective assistance of counsel where trial court conducted thorough voir dire, properly instructed jury on capital sentencing procedure, and asked each juror whether he or she could follow court’s instructions notwithstanding personal beliefs). Appellant attempts to distinguish this case from the above-referenced authority by referencing his unsworn juror declarations. Even assuming that those declarations prove that the five jurors would have said the same thing under oath at voir dire, and would have been subject to challenge for cause during a life-qualification inquiry, appellant has failed to prove that appellate counsel was ineffective. The declarations PCRA counsel secured years after the fact in order to generate this claim did not exist when appellate counsel pursued the direct appeal; counsel had no constitutional duty to interview jurors; and appellant has not offered any argument explaining what there is that would have put counsel on notice to interview the five jurors. Moreover, given appellant’s choice not to present mitigation evidence, it is difficult to see any prejudice resulting from the underlying failure to pursue life-qualifying questions. Furthermore, the trial record reflects that prospective jurors were questioned regarding whether they could follow the laws of the Commonwealth and instructions of the court notwithstanding their personal views on the death penalty. Appellant’s unsworn declarations do not account for this record fact, involving what the same jurors said under oath. Appellant’s unsworn juror declarations cannot serve as the basis of a failure-to-life-qualify ineffectiveness claim and do not overcome the of-record evidence of an adequate voir dire. Accordingly, this layered claim of ineffectiveness lacks arguable merit. C. Prosecutorial “Misconduct” Appellant asserts that the prosecutor’s following statement was objectionable: It is an awesome burden. It is the highest duty you can perform as jurors under our law to say that a man should be put to death. But, unfortunately, under these set of circumstances, I personally believe it is an appropriate action. I believe you as jurors can follow that. N.T., 2/6/87, at 786. Appellant argues that the prosecutor’s statement of “personal belief’ was improper. Appellant claims that trial counsel was ineffective for failing to object to the statement and that appellate counsel was ineffective for failing to raise the issue on direct appeal. The Commonwealth responds that this claim is waived and that any layered ineffectiveness claim lacks arguable merit. On the merits, the Commonwealth asserts that it is permissible for the prosecutor to argue that application of the death penalty is the appropriate action under the circumstances of the case. Citing Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832, 843 (1986), the Commonwealth also- notes that it has been held permissible and within the bounds of oratorical flair for the prosecutor to argue that the defendant “must die by law.” The Commonwealth further states that, in instances where the prosecutor’s statements may be inappropriate, a new trial is not warranted unless the unavoidable effect of the prosecutor’s remark was to prejudice the defendant to such a degree that it prevented the jury from properly weighing the evidence. The Commonwealth contends that any claim of ineffectiveness fails because, even assuming the remark was inappropriate, the jury was not rendered incapable of fair deliberation because, due to appellant’s decision not to present any mitigators, the jury had to apply the death penalty if the Commonwealth factually established either of the aggravators. The PCRA court found the underlying claim to be waived and the layered ineffectiveness claim to be lacking in arguable merit because the prosecutor was merely arguing the appropriateness of the death penalty and appellant was not prejudiced by the remarks. This Court has held that, under 42 Pa.C.S. § 9711(a)(3) “[t]he prosecutor must be permitted to argue the appropriateness of the déath penalty as applied to the circumstances because that is the only issue before the jury at the penalty phase of trial.” Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749, 757 (1987) (emphasis omitted). Likewise, the prosecution may employ oratorical flair when arguing in favor of the death penalty. Basemore, 582 A.2d at 869; see also Commonwealth v. Williams, 581 Pa. 57, 863 A.2d 505, 522 (2004) (stating that during sentencing phase of capital case, prosecutor must be afforded reasonable latitude in arguing position to jury and may employ oratorical flair in arguing in favor of death penalty). Obviously, the prosecutor should have avoided framing his point in terms of his “personal belief.” Nevertheless, we do not believe that trial counsel was ineffective for failing to pursue an objection. The prosecutor was arguing for the appropriateness of the death penalty under the present circumstances, which Section 9711(a)(3) permits. The very fact that the Commonwealth is pursuing the death penalty conveys to the jury that the prosecutor believes the ultimate penalty is appropriate. Counsel could properly and reasonably deem the comment unworthy of objection and its concomitant emphasis, particularly given the court’s standard instruction that the lawyers’ arguments are not evidence. In addition, because appellant did not present any mitigating evidence, the improper remark was not likely to be prejudicial. Accordingly, this layered claim is without merit. D. Denial of Mental Health Evaluation Appellant next argues that he had a substantial history of mental impairment resulting from post-traumatic stress disorder, and therefore, mental health mitigation evidence could have and should have been developed and presented at sentencing. Appellant claims that his rights under the Eighth Amendment, as well as his right to due process and to present a defense, were violated because he was not afforded a mental health evaluation. Appellant asserts that trial counsel was ineffective for failing to investigate his mental health and that appellate counsel was ineffective for failing to raise this issue on direct appeal. Appellant also maintains that this Court’s decision in Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995), which held that a defendant’s right to mental health assistance under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985) is limited to cases where it is needed to rebut the prosecution’s evidence of future dangerousness, is inconsistent with the later decision in Tuggle v. Netherland, 516 U.S. 10, 116 S.Ct. 283, 133 L.Ed.2d 251 (1995) (per curiam) and should be overruled. The Commonwealth counters that Ake is inapposite because, in Commonwealth v. Appel, 547 Pa. 171, 689 A.2d 891, 908 (1997), this Court held that Ake only applies when the defendant demonstrates that his sanity at the time of the offense is to be a significant factor at trial. In the present case, asserts the Commonwealth, there was no indication or demonstration that appellant was insane at the time of the offense, or that he was incompetent at trial. Therefore, concludes the Commonwealth, because appellant was not constitutionally entitled to a mental health evaluation, his counsel cannot be ineffective for failing to request such assistance. The Commonwealth further notes that this claim fails because appellant forbade trial counsel to present any mitigation evidence. The PCRA court dismissed this claim as failing to meet the applicable standards of an ineffectiveness claim. “Ake recognized two scenarios where state-paid psychiatric assistance for an indigent capital defendant could be required: (1) relating to the guilt phase — ‘[w]hen the defendant is able to make an ex-parte threshold showing to the trial court that his sanity is likely to be a significant factor in his defense’; and (2) relating to the penalty phase — ‘when the State presents psychiatric evidence of the defendant’s future dangerousness.’ ” Commonwealth v. Blakeney, 596 Pa. 510, 946 A.2d 645, 659 (2008) (quoting Ake, 470 U.S. at 82-84, 105 S.Ct. 1087). Appellant did not argue at trial that his mental health was at issue and the Commonwealth did not argue future dangerousness at sentencing. Therefore, under the governing law then in existence, appellant was not entitled to demand a mental health evaluation at sentencing and trial counsel was not ineffective for failing to request such assistance. Moreover, appellant fails to demonstrate that trial counsel or appellate counsel knew, or should have known, of a reason to pursue a mental health evaluation. Furthermore, as discussed above, because appellant specifically directed trial counsel not to present mitigating evidence, trial counsel cannot be faulted for failing to engage in a fishing expedition searching for mental health issues. Nor can appellate counsel be faulted for failing to claim that trial counsel was ineffective. Appellant’s claim that Tuggle requires that this Court overrule Christy is misplaced. Tuggle did not exist when counsel had to act, and so it does not further appellant’s claim. And, in any event, Tuggle did not purport to broaden Ake’s application. See Blakeney, 946 A.2d at 660. Moreover, Tuggle’s holding was limited. There, the defendant was sentenced to death in Virginia after a jury found Virginia’s “future dangerousness” and “vileness” aggravators. The Virginia Supreme Court affirmed. Finding an Ake error, the U.S. Supreme Court vacated the sentence and remanded the matter. On remand, the Virginia Supreme Court invalidated the future dangerousness aggravator, but reaffirmed the death sentence based on the other aggravator. Thereafter, the U.S. Supreme Court again invalidated the death sentence. Unlike Zant v. Stephens, 462 U.S. 862, 886-88, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983), which stated that a death sentence supported by multiple aggravating circumstances need not be set aside if one aggravator is found to be invalid, the High Court in Tuggle concluded that, following recognition of the Ake error, the death sentence did not rest on firm ground. Tuggle, 516 U.S. at 11-14, 116 S.Ct. 283. Thus, Tuggle does not implicate this Court’s holding in Christy. Accordingly, appellant’s claim addressing mental health assistance is without merit. E. Jury Instructions Violated Mills v. Maryland Appellant next claims that the trial court’s penalty phase jury instruction, stating that the jury had to be unanimous in finding any mitigating circumstance before it could give effect to that mitigating circumstance, violated the Eighth Amendment as construed by the U.S. Supreme Court in Mills v. Maryland, 486 U.S. 367, 373-75, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), which was decided after the trial in this case. Appellant argues that the trial court’s instruction stressed the need for unanimity with respect to both the verdict and the jury’s findings and indicated that the jury was to make its findings as to mitigating and aggravating circumstances in the same manner with the exception of the burden of proof. Appellant contends that the instructions in the present case are similar to those which the U.S. Court of Appeals for the Third Circuit held violated Mills in Frey v. Fulcomer, 132 F.3d 916 (3d Cir.1997). Appellant further maintains that, in Beard v. Banks, 542 U.S. 406, 411-12, 124 S.Ct. 2504, 159 L.Ed.2d 494 (2004), the U.S. Supreme Court held that Mills applies to cases, such as the case sub judice, that were on appeal at the time Mills was decided. Appellant contends that because a Mills claim will be available to appellant in federal court, he can presently seek relief under Mills pursuant to Section 9543(a)(2)(v) of the pre-amendment PCRA. Appellant argues that this claim is cognizable because trial counsel was ineffective for failing to object to the jury charge and appellate counsel was ineffective for failing to raise trial counsel’s ineffectiveness on direct appeal. Appellant also asserts that appellate counsel could have raised this Mills claim under the then-existent doctrine of relaxed waiver regardless of whether it was preserved by trial counsel. The Commonwealth asserts that this claim is without merit because trial counsel could not have been ineffective for failing to raise a Mills objection at a trial that took place before Mills was decided. Citing Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121, 126 n. 4 (1994), the Commonwealth states that this Court has consistently held that the Pennsylvania death penalty statute does not violate Mills and that Mills is not retroactive. Further, the Commonwealth notes that the U.S. Supreme Court decided Beard v. Banks after the PCRA opinion in the present case and the High Court has held that Mills does not apply' retroactively to a defendant such as appellant, whose trial was completed prior to Mills. Citing Beard v. Banks, the Commonwealth explains that the U.S. Supreme Court has also held that Mills was a new rule of law which does not fall within the two exceptions of non-retroactivity described in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). With respect to appellant’s argument that the Lockett/Eddings/Skipper line of cases establish the underpinnings of Mills, the Commonwealth notes that the U.S. Supreme Court has held that those cases did not compel the holding in Mills. See Banks, 542 U.S. at 416, 124 S.Ct. 2504. The PCRA court concluded that this claim lacks arguable merit because, citing Peterkin, the Pennsylvania death penalty statute does not violate Mills and Mills does not apply retroactively. In Mills, the U.S. Supreme Court held that in a capital case a sentencer may not be precluded from considering and giving full effect to any mitigating evidence. Mills, 486 U.S. at 374, 108 S.Ct. 1860. Mills set forth a new procedural rule governing capital sentencing, specifically holding that when weighing the aggravators and mitigators, the jury’s finding of mitigating circumstances did not have to be unanimous. In Banks, the U.S. Supreme Court held that Mills established a new constitutional rule of law for Teague purposes and, because it was not a watershed rule of criminal procedure implicating fundamental fairness, Mills should not be applied retroactively to cases in which the defendant’s conviction became final prior to Mills. Banks, 542 U.S. at 416, 419-20, 124 S.Ct. 2504. Banks also concluded that Lockett did not mandate the Mills rule and thus Mills was a non-retroactive new rule. Banks, 542 U.S. at 414, 124 S.Ct. 2504. Similar to the procedural posture of the present case, the allegedly erroneous jury instruction in Commonwealth v. Duffey, 585 Pa. 493, 889 A.2d 56, 71 (2005) was given prior to the High Court’s decision in Mills and the direct appeal was issued after it. Because the appellant never raised or preserved a Mills claim before the trial court or on direct appeal, we held that the Mills claim was waived and only a derivative ineffectiveness claim remained. Duffey, 889 A.2d at 71; see also Commonwealth v. Cox, 581 Pa. 107, 863 A.2d 536, 554 (2004) (unpreserved Mills claim is waived and cannot be basis for relief under PCRA where alleged improper instruction was' given prior to Mills and judgment of sentence was not final until after Mills). Here, as in Duffey, appellant never raised or preserved a Mills claim before the trial court or on direct appeal. Therefore, the Mills claim is waived and only a derivative ineffectiveness claim remains. Appellant claims, however, that even though trial counsel did not object to the instruction, appellate counsel was nevertheless ineffective for failing to raise Mills on direct appeal under the discretionary relaxed waiver doctrine which was then applied in direct capital appeals. But, appellant once again ignores the controlling fact that he directed his trial counsel not to present any mitigating evidence and not to attempt to prove any mitigating circumstances. The jury, thus, had no mitigators to weigh. Because the jury could not weigh any mitigators against the aggravators, the instructions implicating Mills did not prejudice appellant. For this reason, any Mills-based ineffectiveness claim necessarily fails. III. APPELLATE COUNSEL CONFLICT OF INTEREST Appellant’s next claim is the only claim that the PCRA court found required an evidentiary hearing to elicit and verify any necessary facts. In his PCRA petition, appellant claimed that appellate counsel labored under a conflict of interest because his office, the Butler County Public Defender’s Office, concurrently represented two Commonwealth witnesses who testified at appellant’s trial, Ferry and White, in their individual criminal matters. However, at the PCRA hearing, the court heard the testimony of White’s former public defender, John Morgan, Esquire, who testified that his representation of White ceased prior to appellant’s trial. Ferry’s former attorney, Richard Goldinger, Esquire, also testified and stated that his representation of Ferry concluded before appellant murdered Jeanine Revak. In its July 16, 2004 memorandum opinion and order, the PCRA court concluded that there was no conflict of interest involving the Public Defender’s representation of Ferry and White. The court found that the Public Defender’s representation of Ferry and White had concluded prior to appellant’s trial and that appellant failed to demonstrate prejudice stemming from appellate counsel’s appointment following appellant’s trial. The court also found that Goldinger did not recall that Ferry became a cooperating witness against appellant. Further, the PCRA court concluded that appellant failed to establish that any prejudice occurred. Presently, appellant claims that the PCRA court erred when finding this claim to be meritless. Appellant states that although Goldinger withdrew as Ferry’s counsel in December 1985, Goldinger was present as Ferry’s attorney when Ferry gave statements to the police concerning appellant’s jailhouse admissions. Appellant argues that a non-conflicted attorney would have aggressively pursued the possibility of an undisclosed deal between Ferry and the Commonwealth, whereas appellate counsel here merely asked Goldinger a few open-ended questions and let the matter drop. Appellant also maintains that Goldinger, as the head of the Public Defender’s Office, experienced a conflict of interest based on his responsibilities to both appellant and Ferry. The Commonwealth responds that, if appellate counsel learned of undisclosed deals between the Commonwealth and White and Ferry, he would have ceased his representation of appellant. The Commonwealth asserts that appellant’s argument that appellate counsel must have labored under a conflict of interest because he “failed” to challenge the alleged, but unproved, deals is meritless. It is far more plausible, maintains the Commonwealth, that appellate counsel did not possess any evidence of such “mythical deals” because they did not exist. The Commonwealth also contends that appellant cannot prove prejudice because he did not prove the existence of any undisclosed deals. Moreover, continues the Commonwealth, appellate counsel was not appointed to represent appellant until after the trial was completed and after Ferry and White had testified. An attorney owes his client a duty of loyalty, including a duty to avoid conflicts of interest. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. The attorney’s duty of loyalty “is the obligation of counsel to avoid actual conflicts of interest that would adversely affect his ability to perform on behalf of his client.” Commonwealth v. Washington, 583 Pa. 566, 880 A.2d 536, 543 (2005). To establish a breach of that duty, the client must show the existence of an actual conflict of interest that adversely affected the outcome of the case. Id. An actual conflict of interest “is evidenced whenever during the course of representation, the interests of appellant — and the interests of another client towards whom counsel bears obligations — diverge with respect to a material factual or legal issue or to a course of action.” In Interest of Saladin, 359 Pa.Super. 326, 518 A.2d 1258, 1261 (1986) (discussing Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354, 356 (1974)). Appellant has failed to establish that the alleged “deals” upon which he premises his conflict claim existed in the first place. In fact, neither Ferry nor White testified to the existence of any agreement with the Commonwealth and the record reflects that there were no agreements. Additionally, because the Public Defender’s Office no longer represented Ferry and White, and appellant’s trial had concluded when appellate counsel began his representation of appellant, no actual conflict of interest existed. Furthermore, the PCRA court found that Attorney Goldinger could not recall if he represented Ferry when Ferry made statements to the police against appellant. Thus, appellant failed to establish an actual conflict of interest and, therefore, this claim lacks arguable merit. Nor has appellant remotely shown how the alleged conflict prejudiced him. And, finally, he has not shown that appellate counsel was ineffective for failing to raise any conflict claim. IV. CLAIMS OF PCRA COURT ERROR A. Denial of PCRA Hearing Appellant claims that the PCRA court erred in summarily dismissing the bulk of his claims without affording discovery or an evidentiary hearing. Appellant argues that he was entitled to PCRA discovery, and declares that he should have been afforded an evidentiary hearing on all of his claims because, if proven, the claims would entitle him to relief. The Commonwealth responds that, under Pa.R.Crim.P. 909(B), the PCRA court was justified in dismissing all but one of appellant’s claims without a hearing because there was no genuine issue of material fact raised by the claims. Rule 909(B)(2) states that “[i]f the judge is satisfied from [his] review [of a PCRA petition] that there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by any further proceedings[.]” Pa.R.Crim.P. 909(B)(2). When reviewing the PCRA court’s denial of post-conviction relief, our standard “is limited to whether the trial court’s determination is supported by evidence of record and whether it is free of legal error.” Commonwealth v. Allen, 557 Pa. 135, 732 A.2d 582, 586 (1999). As our above consideration of appellant’s many claims demonstrates, we hold that the PCRA court did not err in dismissing all but one of appellant’s claims without discovery or a hearing. Appellant has not shown an entitlement to collateral discovery. With respect to a hearing, the PCRA court and this Court have accepted appellant’s arguments as if true, but we have found that appellant’s claims nevertheless fail as a matter of law. The PCRA court adequately detailed its reasons for dismissing appellant’s claims without an evidentiary hearing as required by Pa.R.Crim.P. 909(B)(2)(a), and although our reasoning often differs from that of the PCRA court, the outcome is the same: appellant’s claims do not implicate genuine issues of material fact necessary to dispose of the claims. B. Denial of Recusal Motion Appellant next claims that the PCRA judge, Judge Thomas J. Doerr, should have recused himself because he formerly served in the Butler County Public Defender’s Office up until the fall of 1986, when he left to become a District Justice. Appellant questions Judge Doerr’s impartiality because of his prior relationship with Attorneys Goldinger and Morgan, who represented Ferry and White, respectively, and due to the fact that appellate counsel replaced him at the Public Defender’s Office when he left to become a District Justice. Quoting Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023, 1034 (1989), appellant contends that “[w]here a judge has personal knowledge of disputed facts ... in a proceeding, the judge should disqualify him or herself from further proceedings.” The Commonwealth counters that appellant presented no evidence which would raise doubts as to Judge Doerr’s impartiality. In his July 16, 2004 memorandum opinion and order, Judge Doerr appraised his own ability to be fair and impartial as unaffected by the relationships he may or may not have had when serving as a public defender and stated that he had no involvement with appellant’s case or any of appellant’s witnesses. Hence, Judge Doerr dismissed appellant’s motion for recusal. Recently, in Blakeney, supra, we discussed the standards governing recusal: “[A] trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can be reasonably questioned.” Commonwealth v. Goodman, 454 Pa. 358, 311 A.2d 652, 654 (1973). It is presumed that the judge has the ability to determine whether he will be able to rule impartially and without prejudice, and his assessment is personal, unreviewable, and final. Commonwealth v. Druce, 577 Pa. 581, 848 A.2d 104, 108 (2004). “Where a jurist rules that he or she can hear and dispose of a case fairly and without prejudice, that decision will not be overturned on appeal but for an abuse of discretion.” Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998). Blakeney, 946 A.2d at 662 (alteration in original). Additionally, “[i]t is the burden of the party requesting recusal to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s ability to preside impartially.” Commonwealth v. White, 589 Pa. 642, 910 A.2d 648, 657 (2006) (quoting Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998)). Here, appellant has not met the burden for demonstrating partiality, bias, or an abuse of discretion. The bare fact that Judge Doerr served in the Public Defender’s Office prior to appellate counsel’s tenure there, and with attorneys whose former clients subsequently testified at appellant’s trial after Judge Doerr left the Public Defender’s Office, are insufficient reasons to require recusal as a matter of law — which is appellant’s essential position. Stating that he had no prior knowledge or contact with appellant’s case, Judge Doerr appropriately determined that he could preside over appellant’s PCRA petition impartially. Our review of appellant’s laundry list of claims reveals nothing untoward. Therefore, the PCRA court did not abuse its discretion in denying appellant’s recusal motion. V. CUMULATIVE EFFECT OF THE ERRORS Finally, appellant claims that even if we hold that he is not entitled to relief based on any individual claim, he is nevertheless entitled to relief because the cumulative effect of these allegations denied him a fair trial and in light of the heightened procedural safeguards constitutionally required in capital cases. Quoting Commonwealth v. Bracey, 568 Pa. 264, 795 A.2d 935, 948 (2001), the Commonwealth responds that this Court has previously stated that “no number of failed claims may collectively attain merit if they could not do so individually.” Likewise, the PCRA court found that appellant could not prevail on his cumulative effect theory based on claims that had no arguable merit individually. As the Commonwealth notes, this Court has repeatedly held that “no number of failed claims may collectively warrant relief if they fail to do so individually.” Commonwealth v. Washington, 592 Pa. 698, 927 A.2d 586, 617 (2007) (citing Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 548 (2006), Commonwealth v. Rollins, 558 Pa. 532, 738 A.2d 435, 452 (1999), Commonwealth v. Williams, 532 Pa. 265, 615 A.2d 716, 722 (1992)). Appellant ignores this authority. This claim fails. VI. CONCLUSION For the foregoing reasons, we affirm the orders of the PCRA court. Justices EAKIN, TODD, McCAFFERY and Justice GREENSPAN join the opinion. Justice BEAR files a concurring opinion. Justice SAYLOR concurs in the result. This matter was reassigned to this author. . 18 Pa.C.S. § 2502(a). . 18 Pa.C.S. § 3121(a). . This Court decided Tedford I prior to Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002) (defendant should wait to raise claims of ineffective assistance of trial counsel until collateral review), when Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977) (ineffectiveness of prior counsel must be raised at earliest stage in proceedings at which counsel whose effectiveness is being challenged no longer represents accused) was still controlling. . In his direct appeal brief, appellate counsel declined to set forth each instance of alleged trial counsel ineffectiveness and instead stated that he was incorporating by reference over 50 pages of appellant’s December 5, 1988 pro se application for extraordinary relief, which set forth trial counsel ineffectiveness claims. Although this Court has since made clear that we will not consider claims that a party fails to brief but purports to incorporate by reference, see Commonwealth v. Lambert, 568 Pa. 346, 797 A.2d 232, 237 n. 4 (2001) (Opinion Announcing the Judgment of the Court ("OAJC”)); Commonwealth v. Edmiston, 535 Pa. 210, 634 A.2d 1078, 1092 n. 3 (1993), the Tedford I Court permitted the incorporation. The record, however, does not contain appellant’s pro se application and appellant includes neither the application itself nor a discussion of it its contents in his PCRA petition or the brief filed with this Court. We should note also that, after Tedford I was decided, this Court made clear that a criminal defendant currently represented by counsel is not entitled to “hybrid representation” — i.e., he cannot litigate certain issues pro se while counsel forwards other claims. See Commonwealth v. Pursell, 555 Pa. 233, 724 A.2d 293, 301-02 (1999); Commonwealth v. Rogers, 537 Pa. 581, 645 A.2d 223 (1994); Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137 (1993). . Our standard of review in PCRA appeals is limited to determining whether the findings of the PCRA court are supported by the record and free from legal error. Commonwealth v. Sneed, 587 Pa. 318, 899 A.2d 1067, 1071 n. 6 (2006). . Much of the case law we cite discussing, inter alia, previous litigation and waiver derives from cases interpreting the amended PCRA. As noted in text, however, the operative language is materially the same under either the pre-amendment or amended PCRA. . Section 9544(b) currently reads as follows: ”[f]or purposes of this subchapter, an issue is waived if the petitioner could have raised it but failed to do so before trial, at trial, during unitary review, on appeal or in a prior state postconviction proceeding.” 42 Pa.C.S. § 9544(b). . Following the 1995 amendments, subsection (a)(1) of Section 9544, immaterial to the present appeal, was repealed. 42 Pa.C.S. § 9544(a)(1) (repealed effective Jan. 16, 1996). . This issue is addressed more thoroughly, infra, when examining appellant’s specific claims of trial counsel ineffectiveness at the guilt phase, though the problem arises equally with respect to the trial counsel ineffectiveness claims he attaches to each of his underlying claims. The fact that we do not address appellant's failure to show that a claim was not previously litigated every time we address these boilerplate ineffectiveness claims does not mean that the problem disappears. . While appellant refers to juror “affidavits,” his “newly” discovered evidence in fact consists of three unsworn declarations which he proffers pursuant to 28 U.S.C. § 1746 (unsworn declarations under penalty of perjury) and 18 Pa.C.S. § 4904 (unsworn falsification to authorities). Of course, there is a significant distinction between an affidavit and an unsworn declaration. See Commonwealth v. Hall, 582 Pa. 526, 872 A.2d 1177, 1192 (2005) (Caslille, J., concurring) ("[Tjhere is a significant distinction between a sworn affidavit, which is contemplated under this Court's Criminal Rules governing PCRA practice, and a mere unsworn declaration of a witness.”); Commonwealth v. Brown, 582 Pa. 461, 872 A.2d 1139, 1168-70 (2005) (Castille, J„ concurring) (affidavit is distinct from other out-of-court statements because of oath and certification, which convey to declarant consequences of falsehood, including potential for felony perjury prosecution; affidavit also conveys to tribunal some level of assurance that declarant is who he says he is, that declaration is not fraudulent, and that declarant is willing to stand behind his statement in court). . Appellant also argues that in her declaration, Pickerd states that the victim of a prior assault was a nurse and the only way she could have known that fact is if she had read a newspaper present in the jury room. Pickerd’s declaration, however, does not support any such inference, as she does not state how she learned that the prior victim was a nurse. Obviously, Pickerd could have learned that information in another way during the close to 10 years between appellant's trial and the date of her declaration to PCRA counsel. . Contrary to the Concurring Opinion of Mr. Justice Baer, we do not suggest that "an appellant could never prevail on a claim of appellate counsel ineffectiveness where appellate counsel raised an issue in his post-trial motions and then abandoned it on direct appeal.” See Concurring Op. at 737, 960 A.2d at 59. As the above discussion demonstrates, we merely concluded that, in this case, where the issue was directly addressed by the trial court, appellant has not shown that appellate counsel’s failure to raise this issue on direct appeal was unreasonable. . Words and phrases in bold are supposedly heard on the audiotape of testimony, but not contained in the transcript. Words and phrases in brackets are in the transcript, but supposedly not heard on the audiotape. Sounds that may indicate editing, and places where the taped testimony fades out, are indicated by "(E)" and "(fade)" respectively. . It is notable that, at the post-verdict hearing, the UPS deliveryman testified that, when interviewed, he told the State Police only the approximate time when he made his delivery to The Finishing Touch. . Trial counsel offered the testimony of Trooper Stanek, who stated that when James Revak viewed his wife's body he said, "I'm sorry, I’m sorry, I couldn't help it.” N.T., 2/5/87, at 604. . Appellant’s assertion is untrue; there was additional circumstantial evidence proving rape, including the victim’s unusual activities that day and her being murdered shortly after appellant, by his own admission, had sexual relations with her (consensually, by his account). . Appellant references “affidavits” of Timothy Sunday, inmate David Geibel, and investigator Pamela Tucker contained in appellant's pro se and amended PCRA petitions. Each declaration stated that appellant never confessed to Ferry and/or White, and that Ferry only testified against appellant because he thought that he was getting a "deal” from the Commonwealth. . The Commonwealth does not address whether the items exist. . Additionally, we note that a Brady-like claim is specifically cognizable under the applicable version of the PCRA. See 42 Pa.C.S. § 9543(a)(2)(vi) (1995) (petitioner eligible for relief if conviction or sentence resulted from ‘‘[tjhe unavailability at the time of trial of exculpatory evidence that has subsequently become available and that would have affected the outcome of the trial if it had been introduced”). . Because of appellant's failure to identify which of his present claims of trial counsel ineffectiveness were previously litigated by appellate counsel, it is unclear whether, as appellant contends, this issue was not raised by appellate counsel on direct appeal. . We note that trial counsel in fact objected to the remark based on the grounds that it constituted an improper suggestion and reference to the defense's use of discovery. . It is unclear whether this Court determined that the evidence was admissible for these three purposes or whether the evidence was in fact admitted for these three purposes. Our review of the current record has failed to produce the trial court's original evidentiary ruling, which was the basis for counsel's continuing objection. The Court on direct appeal may have had the benefit of the original ruling. In any event, the trial court's final instruction is clear, and it significantly narrowed the purpose for which the evidence could be considered. . Appellant, however, does not present argument on the First and Eighth Amendments, nor does he present separate arguments under the Pennsylvania Constitution. . Appellant’s claim, in point of fact, does not implicate "ecclesiastical law.” Ecclesiastical law is a "body of law derived largely from canon and civil law[,] administered by the ecclesiastical courts,” and governs "the doctrine and discipline of a particular church.” Black's Law Dictionary 551 (8th ed. 2004). Thus, the Bible is different from ecclesiastical law. . In support of this claim appellant states that this Court's opinion in Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630, 644 (1991) "reiterated that a jury may not rely on ecclesiastical law." Appellant’s Brief at 58. Chambers, however, did not address jury reliance on ecclesiastical law, but rather admonished “all prosecutors that reliance in any manner upon the Bible or any other religious writing in support of the imposition of a penalty of death is reversible error per se and may subject violators to disciplinary action.” Chambers, 599 A.2d at 644. Chambers also was not decided until after the direct appeal in this case concluded. . Appellant declares that counsel “have often been found ineffective for failing to raise a claim about which they have no knowledge." Appellant’s Reply Brief at 12 (emphasis and internal quotations marks omitted). For this proposition, appellant relies on Williams v. Taylor, 529 U.S. 362, 395-99, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (holding counsel ineffective for failing to investigate and present substantial mitigating evidence), Wiggins v. Smith, 539 U.S. 510, 533-34, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same), and Rompilla v. Beard, 545 U.S. 374, 393, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (same). Suffice to say, appellant's characterization is a gross over-simplification of those cases. . Again, although appellant contends that appellate counsel did not raise this claim on direct appeal, he has failed to prove that fact through presentation and/or description of the many claims appellate counsel raised by incorporation on direct appeal. . At the time of trial, 1987, victim-impact testimony was inadmissible. See Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130, 145-47 (1996) (although U.S. Supreme Court reversed its earlier position and approved of victim-impact testimony in Payne v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), Pennsylvania’s prior capital sentencing scheme precluded such testimony). Pennsylvania's death penalty statute was amended on October 11, 1995 so as to allow victim-impact evidence; the amendment, however, only applies to sentences imposed for offenses committed on or after its effective date. Fisher, 681 A.2d at 145 n. 7. . Trial counsel raised his objection after the prosecutor asked Revak, ”1 understand your wife was the home-coming queen in high school.” N.T., 2/3/87, at 156. The trial court framed trial counsel’s objection as follows: "You are objecting mostly to attractive, beauty, things of that sort[J” Id. at 158. The trial court overruled the objection. . Ferry, the jailhouse informant, testified: “[Appellant] said she was good looking and had a nice body and everything, and he had hot nuts for her." N.T., 2/4/87, at 381. . The Tedford I Court also adverted to appellant’s prior version of the claim, stressed that the ineffectiveness claim was made despite "appel lant's specific instructions to counsel not to present such evidence,” and noted that appellant had not set forth the mitigating evidence the trial court, or counsel, should have produced. Tedford I, 567 A.2d at 627 n. 7. . The Concurring Opinion by Mr. Justice Baer notably cites to no authority, much less authority extant at the time trial and appellate counsel were acting in the late 1980s, that governed the content of a mitigation waiver colloquy, much less authority requiring counsel to tell his client that the mitigation waiver would make a sentence of death "certain.” Moreover, the notion that appellant was unaware of the potential consequence of his waiver is both counter-intuitive and seemingly contradicted by appellant's contemporaneous statements. ("I really don’t have any hope---- Why prolong it? .... Why waste time with it?”). Although the aggravator/mitigator paradigm was indeed adopted in an attempt to better channel the jury's discretion, the penalty issue is still put to the jury, even in a case where the Commonwealth pursues a valid aggravator and the defense offers no mitigation. A death verdict is not directed by the court. And, where the jury has the power, there is always the prospect of nullification. Indeed, a recent case illustrates a situation where the jury assumed a power to return a mitigator that was neither pursued by the defendant nor valid under the statutory paradigm. See Commonwealth v. Powell, 956 A.2d 406 (Pa.2008) (jury rejected mitigators pursued by defendant and instead found “mercy” as mitigating circumstance). The death penalty statute channels the discretion of the sentencing body; it does not remove it. Finally, the Concurrence misapprehends the basis for our reliance upon Powell. Our point in citing Powell is to provide an example of powers juries may assume they have, which includes an assumed power of nullification. The fact that a reviewing court might later question or disapprove a capital jury’s action cannot undo the verdict if the verdict was life. Thus, if the jury had returned a life sentence in this case, for whatever reason — compromise verdict, uncertainty regarding the aggravator, residual doubt, mercy, misunderstanding the charge, qualms about the death penalty, etc. — the Commonwealth would be powerless to seek to overturn that judgment. . Although appellant declares that appellate counsel did not raise this claim on direct appeal, he has again failed to prove that fact through presentation and/or description of the many trial counsel ineffectiveness claims appellate counsel raised on direct appeal. . Ake was decided after the Virginia Supreme Court affirmed the sentence. . Prior to the 1995 amendments, Section 9543(a)(2)(v) stated that relief was available for "[a] violation of the provisions of the Constitution, law or treaties of the United States which would require the granting of Federal habeas corpus relief to a State prisoner.” 42 Pa.C.S. § 9543(a)(2)(v) (repealed effective Jan. 16, 1996). . Appellant argues that although Mills was not decided at the time of trial, the underpinning of Mills was established in a series of cases including Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality), Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), and Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), and therefore professionally reasonable counsel would have objected to the trial court’s instructions based on these cases. . Even if appellant's underlying claim were not waived, it would fail. As appellant notes, the jury charge sub judice is similar to the charge in Frey v. Fulcomer, which the Third Circuit held violated Mills due to potential juror confusion over whether mitigating circumstances also had to be found unanimously. Frey, 132 F.3d at 923; see also Abu-Jamal v. Horn, 520 F.3d 272, 300-04 (3d Cir.2008). This Court, however, has consistently held that similar instructions do not violate Mills and has rejected the contrary conclusion of the Third Circuit. See Commonwealth v. Breakiron, 556 Pa. 519, 729 A.2d 1088, 1097 (1999). . If appellate counsel labored under a conflict, he would be required to raise the issue, of course. See Pa.R.P.C. 1.7. . The Prothonotary of the Supreme Court is directed to transmit a complete record of this case to the Governor in accordance with 42 Pa.C.S. § 971 l(i).

SMITH, Judge. LTV Steel Company (Employer) petitions for review of the April 2, 1993 order of the Workmen’s Compensation Appeal Board (Board) which affirmed the referee’s decision granting Merle L. Hawk (Claimant) thirty weeks of compensation benefits for permanent and unsightly disfigurement pursuant to Section 306(e)(22) of the Workers’ Compensation Act (Act). The issues raised on appeal are whether Claimant’s disfigurement was caused by his work-related injury, whether the Board has the right to view disfigurements, and whether the referee’s award was excessive. Claimant filed a claim petition alleging serious and permanent facial disfigurement as a result of a work-related injury which occurred on July 29, 1990 when he was showered with hot refractories while opening a lid on a coke oven standpipe. At the hearing before the referee, Employer stipulated that Claimant sustained a work-related injury which was reported to the dispensary; however, Employer denied that the injury resulted in serious and permanent facial disfigurement. Claimant was present at the referee’s hearing and the referee observed four scars on Claimant’s face and neck and described them in detail for the record. The referee awarded a total of thirty weeks of compensation benefits: twenty weeks for the first scar, eight weeks for the second scar, and two weeks for the fourth scar; and found that the third scar, which was located on Claimant’s neck, was not unsightly. Employer appealed to the Board which affirmed the referee and concluded that no basis existed to disturb his findings as to Claimant’s scars which were related to the accident or those findings related to the number of weeks of compensation due. Employer argues that the description of the scars is incorrect and that Claimant’s permanent disfigurement was not caused by the work-related injury on July 29, 1990. The ultimate factfinder in a workers’ compensation proceeding is the referee, and he or she has the sole prerogative of assessing credibility and resolving conflicts in testimony. Bethenergy Mines, Inc. v. Workmen’s Compensation Appeal Board (Skirpan), 132 Pa.Commonwealth Ct. 277, 572 A.2d 838 (1990), aff'd, 531 Pa. 287, 612 A.2d 434 (1992). The referee may accept or reject, in whole or in part, the testimony of any witness. Id. Employer offered Claimant’s dispensary records into evidence, which indicated only one area of disfigurement located on Claimant’s neck, and the referee admitted the records over Claimant’s hearsay objection. Claimant testified that although he showed the dispensary workers his other scars, they were disregarded. The referee viewed the evidence, including Claimant’s scars, and resolved the conflicting testimony in favor of Claimant by finding that three of his four scars were compensable. The Board noted that after discussion by counsel as to the extent of the scarring, the parties deferred without objection to the referee’s determination as to the extent of Claimant’s scarring and the number of benefit weeks. Since the referee’s findings are supported by substantial evidence, this Court will not disturb them on appeal. Employer cites Hastings Industries v. Workmen’s Compensation Appeal Board (Hyatt), 531 Pa. 186, 611 A.2d 1187 (1992), and argues that the case must be remanded to the Board, in order for it to view the alleged disfigurements and determine whether Claimant’s award of thirty weeks of compensation benefits is excessive. This Court interpreted the requirements of Hastings in LTV Steel Co. v. Workmen’s Compensation Appeal Board (Rosato), 156 Pa.Commonwealth Ct. 374, 627 A.2d 285 (1993), and held that the Board need only have an “opportunity to view” a claimant’s disfigurement to comply with Hastings. Employer admitted in both its petition for review to this Court and in its brief that Claimant was present at oral argument before the Board. Claimant also states in his brief that, pursuant to Employer’s demand, he appeared before the Board and revealed his disfigurement. Since it is uncontested that Claimant was present and provided an opportunity for the Board to view Claimant’s disfigurement, the requirements of Hastings and LTV were satisfied. Concerning the scope of the Board’s review, Employer contends that the Board used the wrong scope of review when it stated that it saw no reason to disturb the referee’s award because there was no “capricious disregard of evidence by the Referee.” The Board merely cited a passage from Hastings which expressed the applicable standard for the Board’s visual view or examination of a claimant’s disfigurement. The court in Hastings stated more completely, “if the [Board] concludes, upon a viewing of a claimant’s disfigurement, that the referee capriciously disregarded competent evidence by entering an award significantly outside the range most referees would select, the [Board] may modify the award as justice may require.” Id. 531 Pa. at 192, 611 A.2d at 1190. Moreover, in its decision, the Board explicitly indicated that its scope of review is limited to determining only whether error of law has been committed or whether the referee’s critical findings of fact are supported by substantial evidence. Since Section 306(c)(22) of the Act permits benefits for disfigurement of the head, neck, and face of up to two hundred seventy-five weeks, the Board acted within its discretion in affirming the referee’s award of thirty weeks compensation for Claimant’s scars. Finding no error by the Board, its decision is affirmed. ORDER AND NOW, this 4th day of February, 1994, the order of the Workmen’s Compensation Appeal Board is affirmed. . Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 513(22). Section 306(c)(22) provides that for serious and permanent disfigurement of the head, neck, or face, which produces an unsightly appearance and which is not usually incident to employment, the compensation shall be sixty-six and two-thirds per centum of wages not to exceed two hundred seventy-five weeks. . This Court's scope of review is limited to determining whether necessary findings of fact are supported by substantial evidence, an error of law was committed, or constitutional rights were violated. Russell v. Workmen’s Compensation Appeal Board (Volkswagen of America), 121 Pa.Commonwealth Ct. 436, 550 A.2d 1364 (1988). . Employer also argues that the referee’s award should not be affirmed because there is evidence that Claimant previously received workers' compensation benefits for scarring. Employer admitted that it was not until its appeal of the referee’s decision to the Board that it presented the issue of Claimant's prior compensation. Since Employer failed to present this evidence during the referee’s hearing or to file a petition for rehearing before the referee, the issue was not properly before the Board and is likewise not properly before this Court.

SMITH, Judge. Lewis Smick appeals from the January 14, 1993 order of the Court of Common Pleas of Philadelphia County denying Smick’s motion for post-trial relief. The issues raised on appeal are whether the trial court erred in allowing defendant City of Philadelphia’s (City) expert witness to testify that it was too speculative to come to a conclusion regarding causation of a trolley derailment that led to Smick’s injuries; whether the court correctly determined that a jury charge of res ipsa loquitur was not warranted; whether the trial court erred by failing to reinstruct the jury on concurrent negligence and instead reread the City’s stipulation; and whether the trial court correctly refused to rule on the issue of ownership of the trolley rail. Smick was a trolley operator for the Southeastern Pennsylvania Transportation Authority (SEPTA) on January 18, 1984 when he was injured as the trolley he was operating derailed upon crossing an intersection and- continued sideways along the street for approximately one hundred feet before stopping. Immediately after the accident, another trolley operator found that a three-foot section of the trolley rail had broken out. Smick filed an action against the City alleging that the rail section broke due to a defect in the road and/or the road bed and that the City was negligent in permitting the existence of the defects. At the start of trial, the jury was read a stipulation that the road and road bed were the City’s responsibility. Among other evidence, Smick presented the testimony of his expert, Judson F. Vodges HI, a registered professional engineer, who opined that lack of proper maintenance of the surface paving in the track area was a substantial factor in the cause of the rail breakage and the consequent trolley derailment. Vodges based his opinion on information obtained from SEPTA and on his physical examination of the site five years after Smick’s accident. Vodges admitted that he did not examine any part of the rail substructure and took no soil bor-ings. Further, he could not eliminate a fault in the rail or a bad weld as a cause of the accident nor could he directly rule out excessive trolley speed or the snowy, freezing weather conditions as factors. Over Smick’s objections expressed in a motion in limine, the trial court allowed the City to present the testimony of its expert witness, David H. Fleisher, a civil engineer. Fleisher testified that a number of other factors could have caused the derailment, including improper rail manufacture or maintenance, weather, temperature, trolley speed, water coming up from the soil, bad rail welds, and constant trolley traffic. He opined that because of these factors, combined with the lack of the necessary evidence of the rail section itself, which had long since been replaced, it was too speculative to come to a conclusion regarding why the rail actually broke. Fleisher specifically refuted Vodg-es’ conclusions that failure to maintain the road bed caused the rail breakage, noting that one cannot make such a conclusion without examination of the rail, which could not be done. The jury rendered a verdict in favor of the City. Smick filed a timely motion for post-trial relief raising the four issues noted above, which the trial court denied, and Smick appealed to this Court. Smick first argues that the trial court erred in allowing Fleisher to offer his opinion regarding what caused the trolley derailment and engage in speculation regarding possible causes. The admission of expert testimony is a matter for the discretion of the trial court and will not be disturbed unless there is clear abuse. Schnabel Associates, Inc. v. T & M Interiors, Inc., 352 Pa.Superior Ct. 303, 507 A.2d 1241 (1986). Furthermore, it is within the discretion of the trial court to permit testimony from one expert showing that the facts do not support the opinion of another expert. Erkens v. Tredennick, 353 Pa.Superior Ct. 236, 509 A.2d 424 (1986), appeal dismissed, 516 Pa. 1, 531 A.2d 778 (1987). Smick’s argument misconstrues the nature of Fleisher’s testimony as well as the requisite burden of proving causation. The burden of proving causation with the appropriate certainty rests upon the plaintiff. Neal v. Lu, 365 Pa.Superior Ct. 464, 530 A.2d 103 (1987). The defendant ordinarily need not prove, with certainty or otherwise, that it is innocent of the alleged wrongdoing: Absent an affirmative defense or a counterclaim, the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiffs case. Evidence that rebuts or discredits is not necessarily proof. It simply vitiates the effect of opposing evidence. Expert opinion evidence ... certainly affords an effective means of rebutting contrary expert opinion evidence, even if the expert rebuttal would not qualify as proof. Id. at 476, 530 A.2d at 109-10. Under this analysis, it was Smick’s burden to prove which of the possible causes actually caused the derailment. In response, the City was not required to defend itself by presenting expert testimony that a particular one of the other possible causes actually caused the accident. As stated by the trial court, Fleisher’s testimony merely challenged Vodges’ opinion on the ground that there was insufficient information from which Vodges’ opinion could be derived. This was the situation in Neal, in which the court rejected a plaintiffs contention that the defendant’s expert testimony about the possible other causes of plaintiffs injury fell short of the evidentiary standard for expert opinion evidence on causation. In Erkens, a defense medical expert was properly allowed to testify that the plaintiffs eye infection could have been due to causes other than that stated by plaintiffs expert. Therefore, the trial court did not err in allowing Fleisher to testify. Smick next argues that the trial court erred in failing to instruct the jury on res ipsa loquitur. Under the principle of res ipsa loquitur, it may be inferred that harm suffered by a plaintiff is caused by a defendant’s negligence when (1) the event is of a kind which ordinarily does not occur in the absence of negligence; (2) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and (3) the negligence is within the scope of the defendant’s duty to the plaintiff. Gilbert v. Korvette’s, Inc., 457 Pa. 602, 327 A.2d 94 (1974). A plaintiff is entitled to a jury instruction on res ipsa loquitur where he or she has satisfied all three of these requirements. Sedlitsky v. Pareso, 400 Pa.Superior Ct. 1, 582 A.2d 1314 (1990), appeal denied, 527 Pa. 673, 594 A.2d 659 (1991). A charge of res ipsa is merely a recognition that circumstantial evidence may be appropriate and adequate proof in a negligence action. Gilbert. Furthermore, it is the function of the court to determine whether the inference may reasonably or must necessarily be drawn by the jury; it is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached. Id. Smick contends that a res ipsa charge should have been given to the jury because he satisfied the requisite elements. However, the trial court correctly disagreed and held that Smick’s evidence failed to exclude all other possible causes that were within the City’s control and might have led to the accident. Although Vodges opined that the condition of the pavement was a substantial factor in the cause of the rail breakage and the consequent derailment, his admittedly limited investigation of the site failed to unequivocally rule out such factors as a fault or a bad weld in the rail or speed and weather conditions as contributing to the accident. Further, he admitted there were other possibilities by noting that a trolley could derail due to an obstruction on the track or improper operation of the trolley. When asked on direct examination whether a trolley might derail where the surrounding pavement has been properly maintained, Vodges replied that such an occurrence would be “unusual.” This is similar to Lonsdale v. Joseph Horne Co., 403 Pa.Superior Ct. 12, 587 A.2d 810, appeal denied, 528 Pa. 637, 598 A.2d 994 (1991), where the Court held that res ipsa was not applicable because no evidence was presented at trial that would, if found credible, eliminate other possible causes of the plaintiffs injury. Although it is not necessary that a plaintiff exclude all other causes of the accident be yond a reasonable doubt, Carney v. Otis Elevator Co., 370 Pa.Superior Ct. 394, 536 A.2d 804 (1988), Smick’s evidence did not rise to a level sufficient to satisfy the requirements set forth in Gilbert. Moreover, “common human experience suggests some explanations for [the injury-causing event] which do not involve negligence. The totality of these circumstances cannot be viewed to raise an inference of negligence ... and ... it is still the Plaintiffs responsibility to advance some evidence to buttress [an] allegation.” Lonsdale, 403 Pa.Superior Ct. at 24, 587 A.2d at 816. Therefore, a res ipsa instruction was not warranted. Smick’s third argument is that the trial court erred by failing to reinstruct the jury on concurrent negligence. During deliberations, the jury returned with the following questions for the court: “In this suit, are the City of Philadelphia and SEPTA considered one and the same? If not, has it been stipulated, or otherwise determined, that the City of Philadelphia is solely responsible for maintenance of the trolley track area?” Smick posits that the jury was wrestling with a finding of sole liability where two parties arguably had some involvement in causing the accident, but where only the City was present at trial. The trial court denied Smick’s request for reinstrueting the jury on concurrent negligence and instead determined that the jury’s question concerned who was solely hable for maintenance of the track area, whereupon the court reread the stipulation clearly setting forth the City’s responsibility for maintenance of the road and road bed. Where a jury returns on its own motion and indicates confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury’s doubt or confusion. Worthington v. Oberhuber, 419 Pa. 561, 215 A.2d 621 (1966). This rule commits to the sound discretion of the trial judge the scope of such additional instructions as he or she decides to give to a jury that has expressed confusion. Mendenhall v. Department of Transportation, 113 Pa.Commonwealth Ct. 550, 537 A.2d 951, appeal denied, 520 Pa. 610, 553 A.2d 971 (1988). The instant situation is distinguishable from Scarborough v. Lewis, 359 Pa.Superior Ct. 57, 518 A.2d 563 (1986), appeals denied, 518 Pa. 650, 651, 544 A.2d 961, 962 (1988), rev’d on other grounds, 523 Pa. 30, 565 A.2d 122 (1989), in which the initial charge was ambiguous and the court’s response did little or nothing to clarify confusion evidenced by a jury’s question. Instead, as in Mendenhall, the trial court sub judice confined the additional instruction to the precise question posed by the jury, believing that such instruction clarified and answered the jury’s question. Thus, the trial court did not abuse its discretion in reinstrueting the jury as it did. Smick last argues that the trial court erred in failing to rule on the issue of whether the City was the true owner of the rail based on a 1968 agreement and lease between the City and SEPTA. The trial court held that the question of ownership of the rail did not bear on the outcome of the jury’s deliberation and determined that the issue is simply whether, if the rail had been available, its examination would have shown that it might have been metallurgieally defective; and since there was a clear stipulation that the City was solely responsible for maintenance of the road and road bed, the question of ownership of the rail was not germane to the jury’s deliberations. Smick contends that a ruling on this issue was necessary because the City attempted to shift responsibility to SEPTA and because of the jury’s resulting confusion as demonstrated by its question to the court during deliberations. This Court’s review of the record reveals no basis for this contention. As noted by the trial court, ownership of the rails had no bearing upon Smick’s theory of liability, which was solely that the failure to maintain the road surface surrounding the trolley rail caused the derailment: -the condition of the rail itself played no part in Smick’s presentation of evidence. Accordingly, the trial court’s order is affirmed. ORDER AND NOW, this 4th day of February, 1994, the order of the Court of Common Pleas of Philadelphia County dated January 14, 1993 is affirmed. . The City joined SEPTA as an additional defendant; however, the claim against SEPTA was bifurcated prior to trial and SEPTA did not participate as a party. . Smick’s reliance upon Palmeri v. Pennsylvania State Police, 82 Pa.Commonwealth Ct. 348, 474 A.2d 1223 (1984), aff'd, 508 Pa. 544, 499 A.2d 278 (1985), and Niggel v. Sears, Roebuck & Co., 219 Pa.Superior Ct. 353, 281 A.2d 718 (1971), is misplaced. In these cases, the Courts rejected expert opinion testimony that was based on mere possibilities and probabilities. These cases are inapplicable to the matter sub judice because they concerned equivocal expert causation testimony on behalf of the parties with the burden of proof. In the present matter, the City had no such burden and merely offered its testimony for purposes of rebuttal. Similarly, Collins v. Hand, 431 Pa. 378, 246 A.2d 398 (1968), in which the Court held that an expert witness is not permitted to state an opinion based upon mere conjecture, is inapplicable because Fleisher did not base his opinion on conjecture. . Also without merit is Smick's contention that Fleisher’s testimony undermined the substantive law on circumstantial evidence because it suggested to the jury that circumstantial inferences, which the jury might have drawn by accepting Vodges’ opinion, were improper and that Smick could only prevail if direct evidence were provided. This Court finds no evidence in the record to support Smick’s claim. Furthermore, the jury was properly instructed regarding the role of circumstantial evidence.

KELTON, Senior Judge. Jean M. Imdorf (Imdorf) petitions for review of the June 24,1993 order of the Public School Employes’ Retirement Board (Board) dismissing her appeal of the increase in her retirement contribution rate from 5.25% to 6.25% of her salary and ordering that she continue to make contributions at the rate of 6.25%. We affirm. On July 22, 1983, Governor Thornburgh signed into law Section 2 of Act 31 of 1983, an amendment to Section 8102 of the Public School Employes’ Retirement Code (Code) which raised the basic retirement contribution rate for Public School Employes’ Retirement System (PSERS) members from 5.25% to 6.25%. Employees who were members prior to July 22, 1983 and continued as members thereafter, however, remain subject to the 5.25% contribution rate. Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 196, 484 A.2d 751 (1984). This case presents the issue of whether the Board erred in determining that a person who initially became a member of PSERS prior to the effective date of the Act 31 amendment to the Code, but who was on a four-year leave of absence and did not make contributions during that time, was required at the end of the leave of absence to make retirement contributions at the higher rate of 6.25% because her membership with PSERS had been terminated. Our scope of review here is limited to determining whether the Board committed an error of law, whether the aggrieved party’s constitutional rights were violated, or whether the findings of fact are supported by substantial evidence. Laurito v. Public School Employes’ Retirement Board, 146 Pa.Commonwealth Ct. 514, 606 A.2d 609 (1992). FACTS On September 5, 1973, Imdorf became a member of PSERS by virtue of her employment as a school teacher with Riverdale School District. Her contribution rate to PSERS was the statutorily mandated 5.25%. Imdorf began an unpaid leave of absence in September 1981, which continued until September 1985. No pickup contributions were made to PSERS on her behalf during her unpaid leave of absence. Finding of Fact No. 2. On September 4, 1985, Imdorf re-enrolled in the PSERS by virtue of her return to employment with the school district. Finding of Fact No. 5. On January 24, 1989, Imdorf wrote to PSERS regarding the increase in her contribution rate from 5.25% (the rate before her unpaid leave of absence) to 6.25% (the rate after her unpaid leave of absence). On March 13, 1989, PSERS informed her that the increased rate of 6.25% was correct due to the interaction of a statu tory amendment to the Code and her termination of membership in PSERS. (R.R. 27.) On May 25, 1989, Imdorf requested a review of the increase in her “basic contribution rate.” On February 2, 1990, PSERS advised her that the Appeals Committee had denied her request to reduce the 6.25% rate. On February 12, 1990, she requested an administrative hearing regarding her claim. The Hearing Examiner held a hearing on February 27, 1991 and recommended that the Board find that Imdorfs contribution rate remain at 6.25%. Imdorf filed exceptions to the Hearing Examiner’s decision. The Chairman of the Public School Employes’ Retirement Board, Bernard J. Frei-tag, concluded that her original membership, which commenced in 1973, ceased in September 1983 when she ceased being an “inactive member” of PSERS. Further, the Chairman, citing Pennsylvania Federation of Teachers v. School District of Philadelphia, 506 Pa. 196, 484 A.2d 751 (1984), concluded that “[t]hose who become ‘members’ of PSERS after July 22, 1983, the effective date of Act 31, must contribute at a rate of 6.25%.” Conclusion of Law No. 2. Finally, he concluded that, “[o]n September 4, 1985, upon her re-enrollment in PSERS, [Imdorf] became a ‘member’ of PSERS subject to new contractual terms and, therefore, she must contribute at a rate of 6.25%.” Conclusion of Law No. 3. Accordingly, Chairman Freitag dismissed Imdorf s appeal of the increase in her contribution rate and ordered that her contribution rate continue at 6.25%. Imdorf appealed his determination to our Court. DISCUSSION In order to determine the propriety of the 6.25% rate as applied to Imdorf, we must review her status over time with PSERS. A PSERS member is defined as an “[ajctive member, inactive member, annuitant, or vestee.” 24 Pa.C.S. § 8102. Because Imdorf made no contributions from September 1981 to September 1983, she was an “inactive member” during that time period. An “inactive member” is defined as follows: A member for whom no pickup contributions are being made, who has accumulated deductions standing to his credit in the fund and for whom contributions have been made within the last two school years or a multiple service member who is active in the State Employees’ Retirement System. 24 Pa.C.S. § 8102 (Emphasis added). Imdorf made no contributions from September 1983 to September 1985, which constitute “the last two school years” in her ease. Thus, she was a “nonmember” during that period until her September 4, 1985 re-enrollment in PSERS when she once again achieved member status. In Lawrie v. Public School Employes’ Retirement Board, 141 Pa.Commonwealth Ct. 366, 595 A.2d 753 (1991), we held that once an inactive member fails to make regular member contributions to the fund, has accumulated deductions standing to his or her credit in the fund and has not contributed to the fund in the last two school years, he or she becomes a nonmember of the system. It is irrelevant that Imdorf returned to PSERS because, by law, she had terminated her membership. We find Lawrie to be indistinguishable from the case before us for disposition. Section 8102 of the Code defines “Date of Termination” as follows: The last date of service for which pickup contributions are made for an active member or, in the case of an inactive member, the effective date of [her] resignation or the date [her] employment is formally discontinued by [her] employer or two years following the last day of service for which contributions were made, whichever is earliest. 24 Pa.C.S. § 8102 (Emphasis added). It is undisputed that Imdorf made no contributions from September 1981 to August 1985. Imdorfs ease falls under the last alternative of when an inactive member’s date of termination occurs, which is two years following the last day of service for which contributions were made. Thus, subsequent to August 1985, she was not a member of PSERS in any form, despite any agreement on the school’s part that she would one day return to service. That simply is not relevant to a determination of her date of termination. Unable to distinguish the clear holding of Lawrie, Imdorf argues that she should be treated like a member hired prior to July 22, 1983 with no break of service because she falls under one of the exceptions to Act 31, set forth in PSERS’ Reference Manual. That exception provides as follows: -A member who is furloughed or on a leave of absence is permitted to return to service within a two-year period and maintain the previous rate of contribution. (R.R. 41.) Initially, we note that “an employee handbook issued by a Commonwealth agency ... is not a legislative action ... and cannot be considered a contract guaranteeing a property right in employment unless the legislature has so provided.” Bernstein v. Commonwealth of Pennsylvania, 151 Pa.Commonwealth Ct. 401, 410, 617 A.2d 55, 60 (1992), aff'd without opinion, — Pa.-, 634 A.2d 1113 (1993) (quoting Pivarnik v. Department of Transportation, 82 Pa.Commonwealth Ct. 42, 45—46, 474 A.2d 732, 734 (1984)). Here, the General Assembly did not provide that the Reference Manual was to constitute a contract. In Bernstein, we also noted that our Superior Court in Martin v. Capital Cities Media, 354 Pa.Superior Ct. 199, 511 A.2d 830 (1986), held that the terms in an employee handbook are binding only when either the handbook itself or the employer’s representation of it clearly indicate that the handbook is to have a binding effect. Here, there was no such evidence presented in that regard. Thus, we conclude that the exception in the Reference Manual is nonbinding on PSERS. Notwithstanding the nonbinding nature of the Reference Manual, Imdorf misinterpreted the above-quoted exception in any event. It appears that the exception was most likely an attempt on the part of PSERS to explain in layman’s terms the definition and impact of “inactive member” and “date of termination.” As we noted above, a member is defined as an “[a]ctive member, inactive member, annuitant, or vestee.” 24 Pa.C.S. § 8102. The General Assembly chose two years as a reasonable period of time to measure when an “inactive member” becomes a nonmember and when a date of termination of service as a pension participant occurs. Thus, although PSERS could have been more explicit in its Reference Manual, Im-dorf was not a member on a leave of absence who would be permitted to return to service and retain the 5.25% contribution rate. By definition, she became a nonmember after “two years following the last day of service for which contributions were made.” Although Imdorf concedes that she was on a four-year leave of absence, she argues that two of those years should not be counted because they pre-date the legislative amendment to the Code. She contends that Act 31 should be applied prospectively only and that by counting all four of her years of leave, the Board erroneously applied the amendment retroactively. Thus, according to Imdorf, the above-quoted exception found in the Reference Manual should be applied in her case. We disagree. A retroactive law is defined as one that “relates back to and gives a previous transaction a legal effect different from that which it had under the law in effect when it transpired.” Department of Labor and Industry, Bureau of Employment Security v. Pennsylvania Engineering Corp., 54 Pa.Commonwealth Ct. 376, 380, 421 A.2d 521, 523 (1980). Further, “a statute does not operate retrospectively merely because some of the facts or conditions on which its operation depends came into existence before the effective date.” Popowsky v. Pennsylvania Public Utility Commission, 150 Pa.Commonwealth Ct. 166, 177, 615 A.2d 857, 863 (1992) (citing Gehris v. Department of Transportation, 471 Pa. 210, 369 A.2d 1271 (1977)). Here, the previous transaction was Imdorf commencing her four-year leave of absence in September 1981. At that time, the 5.25% rate of contribution was in effect. In 1983, the rate changed. The amendment raising the rate, however, does not give her September 1981 leave a different legal effect than it would have had in 1981; separate and apart from the change in contribution rate, her membership status changed from inactive to nonmember in 1983. Pursuant to unamended Code provisions, her change in status occurred despite the 1983 amendment to the Code increasing the rate of contribution. Thus, we conclude that there was no retroactive application here. Imdorf was simply unlucky enough to have been caught in the middle of the one percent increase in the rate of retirement contribution. Imdorf s membership terminated and, upon her re-enrollment into PSERS, she was subject' to the higher “basic rate of contribution.” For the above reasons, we affirm.' ORDER AND NOW, this 8th day of March, 1994, the order of the Public School Employes’ Retirement Board, dated June 24, 1993, is hereby affirmed. . 24 Pa.C.S. § 8102. . In Finnegan v. Public School Employes' Retirement Board, 126 Pa.Commonwealth Ct. 584, 560 A.2d 848 (1989), aff'd without opinion, 527 Pa. 362, 591 A.2d 1053 (1991), we held that, where a PSERS employee misinformed a member contrary to positive law in a statute, the member could not recover. Although the Reference Manual here could have been clearer, the information in the exception did not constitute actual misinformation.

Opinion by President Judge Crumlish, Jr., The Commonwealth of Pennsylvania, Department of Public Welfare (Commonwealth), appeals the final order of the Pennsylvania Labor Relations Board (Board) upholding a hearing examiners proposed decision and order which concluded that the Commonwealth had committed unfair labor practices in violation of Section 1201(a)(5) of the Public Employe Relations Act (PERA). The unfair labor practice charge stemmed from the Commonwealths refusal to provide the Pennsylvania Nurses Association (PNA) with information it had requested to assist in the processing of grievances filed by William Pannacci, a union member. Pannacci, a pharmacist at Clarks Summit State Hospital, filed four separate grievances alleging improper personnel promotions, unilateral changes in the pharmacy’s hours of operation and work schedules, and a discriminatory performance evaluation. When the Commonwealth declined to provide the requested information for grievance arbitration, the PNA filed the instant complaint alleging that the Commonwealth was violating its duty to bargain in good faith. The hearing examiner found that the PNA set forth a cause of action which was not appropriate for deferral pending the grievance arbitration and ordered the Commonwealth to provide the PNA with the requested information. The Board affirmed the examiner’s decision but modified it to eliminate certain information requests. Our scope of review is limited to a determination of whether the factual findings of the Board were supported by substantial evidence and its conclusions of law were reasonable. Repko v. Pennsylvania Labor Relations Board, 99 Pa. Commonwealth Ct. 289, 513 A.2d 518 (1986). The Commonwealth contends that the Boards order must be set aside because the Board abused its discretion by refusing to defer consideration of the information requests until settlement of the underlying arbitration grievances. It argues that deferral would have protected the Commonwealth from unnecessarily disclosing information in cases of frivolous claims. We disagree. We note at the outset that when no meaningful difference exists between established policies of the PERA and the National Labor Relations Act (NLRA), we look to federal decisions for guidance. Burse v. Pennsylvania Labor Relations Board, 56 Pa. Commonwealth Ct. 555, 425 A.2d 1182 (1981). The similar language and purposes of Section 1201(a)(5) of PERA and Section 158(a)(5) of NLRA permits us to be guided by federal decisions in interpreting PERA. Courts of federal jurisdiction have dealt with issues of discovery in the processing of arbitration grievances and have found that state employers have a duty to furnish information which would enable unions to make informed decisions about whether to pursue such grievances. See, e.g., San Diego Newspaper Guild v. National Labor Relations Board, 548 F.2d 863 (9th Cir. 1977). Furthermore, the duty to provide information has been said to be a statutory obligation which exists indepen dent of the agreement between the parties. National Labor Relations Board v. Designcraft Jewel Industries, Inc., 675 F.2d 493 (2d Cir. 1982). We believe Section 1201(a)(5) of PERA creates a similar statutory obligation. As in National Labor Relations Board v. Acme Industrial Co., 385 U.S. 432 (1967), where the Supreme Court held that unions were entitled to reasonable discovery of relevant materials in order to make an intelligent evaluation of the merits of the underlying claim, it is clear that the PNA must be allowed to obtain relevant information in order to perform its duties as specified in the parties’ collective bargaining agreement (agreement). The Commonwealth next contends that the Board erred by requiring it to furnish the PNA with information concerning non-unit employees who are not covered by the agreement. The Commonwealth argues that this information is not relevant to the PNA’s duty to “police” the agreement. We disagree. The Supreme Court in Acme stated that relevancy should be determined under a discovery-type standard wherein the courts of necessity must follow a more liberal standard as to relevancy. Further, since the PNA is seeking information in connection with its pursuit of grievances, the Board need only find: (1) that the union is advancing a grievance which on its face is governed by the parties’ agreement, and (2) that the information will be useful to the union. Acme at 437. Here, Pannacci’s grievances against his supervisor and the Administrative Director were brought under agreement Articles 28 and 36, which prohibit employment discrimination and govern managerial rights, respectivciy. It is not required that the PNA show that it will succeed on the merits of these grievances but only that its request for information is factually relevant to the grievants’ demand.8 In addition, by producing evidence suggestive of bad faith, the PNA has satisfied the liberal standard of relevancy, thereby entitling it to the requested information. Curtiss-Wright Corp. v. National Labor Relations Board, 347 F.2d 61 (3d Cir. 1965). We hold, therefore, that since the grievances on their faces are subject to the PNAs contract and demonstrate a need for the requested information, the Board did not err in ordering the Commonwealth to produce the information on non-bargaining unit employees. The Commonwealths final contention that the Board erred by requiring it to reduce to writing its reasons for particular managerial decisions which are not currently in written form is also without merit. In Curtiss-Wright Corp., the Third Circuit Court of Appeals held that information pertaining to employees is presumptively relevant. Under the federal statutes, there is an obligation for an employer to make a diligent effort to obtain presumptively relevant information sought by the union. National Labor Relations Board v. Borden, Inc., 600 F.2d 313 (1st Cir. 1979). Here, the relevance of the requested information is beyond dispute. It goes to the heart of Pannaccis performance evaluation and to the reason behind the changes in operations which are at issue in the underlying grievances. Moreover, the Board found that some of the requested information can be gleaned from existing internal memoranda on personnel actions. The PNÁs inquiries to the Commonwealth are in the nature of interrogatory discovery requests and can be answered objectively. Therefore, it was not unreasonable for the Board to conclude that due diligence required the Commonwealth to reduce to writing the reasons for the particular administrative decisions. Accordingly, we hold that the Commonwealth committed unfair practices in violation of Section 1201(a)(5) of the Act by failing to provide the requested information. We affirm the final order of the Board. Order The final order of the Pennsylvania Labor Relations Board, No. PERA-C-85-152-E dated May 6, 1986, is affirmed. Act of July 23, 1970, P.L. 563, as amended, 43 P.S. §1101.1201(a)(5), which reads: (a) Public employers, their agents or representatives are prohibited from: (5) Refusing to bargain collectively in good faith with an employe representative which is the exclusive representative of employes in an appropriate unit, including but not limited to the discussing of grievances with the exclusive representatives. Pannacci challenged the appointment of Richard O’Dea to the managerial position of administrative director of the hospital’s pharmacy and the selection of Ms. Yadouga, instead of Mr. Pannacci, to serve in the first-level supervisory position of chief pharmacist. Pannacci challenged the change in hours of operation at the pharmacy wherein the new chief pharmacist would be working from 8:00 a.m. to 4:00 p.m. Monday through Friday; and he and the other pharmacist would have to choose between 9:00 a.m. to 5:00 p.m. or 10:00 a.m. to 6:00 p.m. weekdays and would also have to cover every other weekend from 9:00 a.m. to 5:00 p.m. Pannacci challenged his 1984 performance evaluation which noted, inter alia, that he had difficulty (1) getting along with his co-workers; (2) sharing duties; and (3) following directions and assignments. The Board ordered the Commonwealth to produce discovery information pertaining to, inter alia, (1) the O’Dea grievance; (2) the Yadouga grievance; (3) the Pharmacy hours/work schedule grievance; and (4) his performance evaluation grievance. The PNA re quested information on the basic reasons behind the various managerial changes instituted in the Pharmacy. 29 U.S.C. §§151—168 (1973). The same is true for the Labor Relations Board, which must make the initial determination as to whether the discovery request is relevant. Articles 28 and 36 of the Collective Bargaining Agreement between the Commonwealth and the PNA, effective July 1, 1983, to June 30, 1985, prohibit any kind of discrimination in the work place and permit the Commonwealth to make management decisions within its “sound discretion.” United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564 (1960). The PNA has requested objective, known information relevant to the processing of the grievances.

Opinion by Judge Colins, Patrick and Diana M. Somerville (petitioners) appeal an order of the Insurance Commissioner affirming an Insurance Department determination which upheld Erie Insurance Company’s decision not to renew the petitioners’ automobile insurance policy. The petitioners had three automobile accidents within thirty-six months of their insurance policy’s anniversary date: an intersection accident in October, 1983; a rear end collision in June, 1984; and an accident in August, 1985, apparently resulting from Mr. Somerville’s efforts to avoid hitting another car. In March 1986, prior to the policy’s May anniversary date, the insurer sent a notice of non-renewal stating that the basis for non-renewal was the frequency of accidents. Pursuant to Section 3(b) of the Act of June 5, 1968, P.L. 140, as amended, 40 P.S. §1008.3(b) (Act), of course, an insurer may not decline to renew an automobile insurance policy on the basis of a single accident within three years preceding a policy’s anniversary. Conversely, an insurer may refuse to renew a policy under which two or more accidents occurred during such three year period. Perry v. Liberty Mutual Insurance Co., 86 Pa. Commonwealth Ct. 400, 485 A.2d 516 (1984). The petitioners concede that the 1984 accident may be considered against them in the insurer’s decision not to renew. They contend, however, that they did not incur more than one accident which could properly be charged against them as the basis for non-renewal. They argue that, because the insurer had failed to dispose of the cause of that accident through settlement or litigation, they were denied the opportunity to show that the accident fell within exclusion provisions of Section 3(a)(13)(ii) of the Act, 40 P.S. §1008.3(a)(13)(ii). This section provides that an insurer may not count against an insured accidents in which the insured, owner or resident operator is reimbursed by or on behalf of a person responsible for an accident. They maintain that the insurer may not rely on the third accident and that it should be excluded because they were purportedly not at fault and because the insurer testified that subrogation was being pursued. It is also argued that the insurer should not be permitted to rely on that accident because it had not acted diligently in pursuing subrogation. It is well established, however, that a showing of fault is not necessary under Section 3 of the Act. Hallowell v. Insurance Department, 105 Pa. Commonwealth Ct. 143, 523 A.2d 826 (1987); Perry. In addition, this Court has previously stated that an insurer’s alleged lack of diligence in pursuing subrogation or reimbursement does not estop it from counting an accident against an insured because the Act does not impose a duty on an insurer to file suit before it could consider an accident as a basis for non-renewal. Komada v. Browne, 97 Pa. Commonwealth Ct. 19, 508 A.2d 1284 (1986). The petitioners further contend that the insurer may not rely upon the 1983 accident as a basis for its decision because the insurer obtained a fifty percent (50%) reduction in the amount of damages it had to pay them in settlement for the claim, which reduction was presumably premised upon belief the parties were comparatively negligent. It is argued that the accident consequently should be excluded from consideration pursuant to Section 3(a)(13)(ii) of the Act. This argument must fail, however, for it is uncontested that there was no reimbursement. Rather, the settlement merely reduced the insurers payment obligation. In Komada, this Court held that settlement of an accident by paying an insured two-thirds of his claimed total did not bring the accident within the provisions of Section 3(a)(13)(ii). The petitioners also contend that the insurer should be estopped from relying upon the 1983 accident because it thereafter renewed their policy without surcharge at the next anniversary date. Nothing in the Act provides a basis for the petitioners’ assertion, for the Act prohibits non-renewal on the basis of one accident within thirty-six months, and the nine exemptions enumerated in 40 P.S. §1008.3 delineate the only accidents which are not to be charged against an insured. Nothing requires an insurer to impose a surcharge for every accident, nor is an insurer required to classify each accident at the time it occurs. Moreover, the Act does not indicate that an insurer will be deemed to have elected to treat as excluded any accident not giving rise to a surcharge. No provision is made for waiver or estoppel in this context. As the Commissioner noted, a waiver is the act of intentionally relinquishing a known right or privilege and will not be presumed or implied contrary to the party whose rights would be so affected unless that party has misled the other, to its prejudice, that such waiver was consented to or intended. Brown v. City of Pittsburgh, 409 Pa. 357, 186 A.2d 399 (1962). There is no evidence or claim that the petitioners were misled to their prejudice, and so this argument must also fail. In any event, due to the petitioners’ concession of culpability in the second (1984) accident, and the previous discussion as to the applicability of the third (1985) accident, a sufficient basis exists to support non-renewal, without any reference to the first accident. We will, therefore, affirm the order of the Insurance Commissioner. Order And Now, this 15th day of July, 1987, the order of the Insurance Commissioner, in the above-captioned matter, is hereby affirmed.

Opinion by Judge Craig, Allright Auto Parks, Inc., a zoning applicant, has appealed from an order of the Court of Common Pleas of Philadelphia County which affirmed a decision of the Philadelphia Zoning Board of Adjustment refusing permission to erect an eight-foot kiosk on the north side of Chestnut Street. The board and the court both concluded that a thirty-five-foot building minimum height requirement in the Philadelphia zoning ordinance applied to the north side of Chestnut Street so as to prohibit the proposed eight-foot structure. On the basis of an undisputed set of facts, the only question presented is purely one of law—whether, under the zoning ordinance terms, the minimum height requirement is applicable only to the south side of Chestnut Street and therefore does not regulate structures proposed for the north side of that artery where the kiosk site is proposed. Facts and Ordinance Provisions Subsection 14-1607(6) of the Philadelphia Code reads as follows: §14-1607. Special Controls for the Center City Commercial Area (6) Bulk and Height Controls. No building shall be erected which is within an area two hundred fifty (250) feet of the south side of Chestnut Street between Front Street and a point one hundred thirty (130) feet east of Broad Street . . . unless there is compliance with the following height and bulk controls: (a) The main cornice line abutting the south side of Chestnut Street . . . shall not ex ceed fifty (50) feet in height above the sidewalk level; provided, that no portion of any building within two hundred fifty (250) feet south of the southerly properly [sic] line of Chestnut Street . . . shall exceed this fifty (50) feet height limitation unless the portion or portions above this fifty (50) feet height limitation recede from the plane of the cornice line a distance equal to or greater than the distance it extends above the fifty (50) feet height limit; provided further, that in no case shall any portion or portions of a building exceed three hundred (300) feet in height. (b) The main cornice line on any building erected on land abutting Chestnut Street . . . shall not be less than thirty-five (35) feet above the sidewalk level. The proposed Chestnut Street site of the kiosk is near the intersection of Eighth Street and unquestionably is therefore within the ordinances named east-west (Front Street-Broad Street) limits. Nor is there any dispute that, for the purposes of the ordinance, a kiosk is a “building” and that the phrase “cornice line” in the ordinance refers to the high point of a building for height limit purposes. Furthermore, although the passage referring to “an area two hundred fifty (250) feet south of the south side of Chestnut Street,” if taken literally, describes only a one-dimensional line rather than a two-dimensional area, the parties do not disagree with reading that passage as if it described “an area extending two hundred fifty (250) feet south from the south side of Chestnut Street. . . .” Literal Terms of the Ordinance Of course, the difficulty arises from the point that the potentially determinative minimum height provision in paragraph (6)(b) consists of a single sentence stating that the high point of “any building erected on land abutting Chestnut Street” shall not be less than thirty-five feet above the sidewalk level. The literal import of the entire subsection (6) is clear. Subsection (6), as it relates to Chestnut Street, confines itself to describing only an area south of Chestnut Street, and states that no building shall be erected in that area “unless there is compliance with the following height and bulk controls:” (emphasis added). The “following height and bulk controls” referred to, after the colon, are unavoidably those restrictions set forth in subparagraphs (a) and (b), the latter being the subparagraph which contains the minimum height restriction. Accordingly, subsection (6) creates a subdistrict, located only south of Chestnut Street, and subparagraph (b) is one of the controls operative within that subdistrict, that is, the minimum height specification is one of the “following” controls which subsection (6) applies to the subdistrict area described as being south of Chestnut Street. Although subparagraph (b) expressly deals with “any building erected on land abutting Chestnut Street,” that passage does not stand alone but, in its subordinate role in the ordinance, clearly refers only to any building erected on land abutting Chestnut Street within the subdistrict south of it. Legislative Findings in the Ordinance In section 14-1607(1) of the Code there are legislative findings by City Council which explain the fifty-foot height maximum stated in subparagraph (a) with respect to buildings abutting the south side of Chestnut Street (and also Walnut Street). Those findings read as follows: (d) The pedestrian ambiance of Chestnut Street and Walnut Street would be enhanced by insuring the continued penetration of sunlight and air to the sidewalk areas of these streets by restricting building heights on the south side of these streets in a manner that ensures this. (e) A uniform scale of development would enhance the aesthetic character of Chestnut Street and Walnut Street by maintaining a cornice line or height line of a pedestrian scale along said streets. (f) Therefore, special land use controls are needed to protect the historic, aesthetic, and economic viability of this area. These controls should prohibit certain uses, establish bulk and height controls along the south side of Chestnut Street and Walnut Street, and establish facade and sign controls for the area. (Emphasis added.) Quite clearly, subparagraphs (d) and (e) of the above findings explain and relate only to the maximum height provision. Note that subparagraph (d) refers to an intention to ensure the penetration of sunlight, undoubtedly from the south, by “restricting building heights on the south side” of the two streets. Although subparagraph (e) refers to a “uniform scale of development,” it does so only with respect to “maintaining a . . . height line of a pedestrian scale” that is, a relatively low height line—all of which relates to the maximum height requirements. Finally, subparagraph (f) of the above findings expresses the focus of the ordinance provisions which follow by declaring that special land use controls are needed and that these controls should prohibit certain uses, establish bulk height controls along the south side of Chestnut Street. . . . Quite clearly, there is nothing in the legislative findings within the ordinance itself to cause us to ignore the clear structure of subsection (6) of section 14-1607, the subsection which describes a subdistrict exclusively on the south side of Chestnut Street and then expresses the minimum height requirement only within that framework. Administrative Recommendation to City Council The city’s brief in this case also quotes a portion of testimony presented to City Council at its legislative hearing on section 14-1607. Significantly, the city’s brief does not characterize this material as a finding by the council, but only as a planning recommendation presented to City Council, apparently by the Planning Commission. The quoted recommendation reads as follows: We are also recommending that a minimum height of 35 feet be applicable. We do not want to encourage one-story commercial development. We feel that that offers too much opportunity for people who want to get in and get out quickly, make a quick buck and not provide adequate investment in the area. The shops at 17th & Chestnut I think are a grade above that, but nonetheless we have seen instances where with one story development, you tend to get a much lower level of investment, which tends to detract from the other high quality shops existing on the street. However, an administrative recommendation to City Council is a matter quite distinct from a legislative declaration by the City Council itself. The development goal expressed in the recommendation—avoiding the blighting influence of low, stunted one-story development—obviously is a goal logically implemented by applying the minimum height requirement to both sides of the street in question. However, the feet that the Planning Commission may have had such a goal in mind does not confer upon the courts any power to rewrite the ordinance as actually enacted by City Council, nor any power to reorganize the structure of the ordinance provisions or add words to them, in order to incorporate the recommended ideas. Although the “object of all interpretation and construction of statutes is to ascertain and effectuate the intention” of the legislative body, 1 Pa. C. S. § 1921(a), there is no judicial authority to rewrite laws for the purpose of improving them or to restructure them in accordance with what might have been the hopes of non-legislative advocates. The important safeguard against judicial legislation is our statutory interpretation principle that: When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa. C. S. § 1921(b). Although the policy of Philadelphia Code subsection 14-1601(6) may be puzzling, its structure and words are not puzzling, and they are certainly not ambiguous. Even though subparagraph (b) speaks only of land “abutting Chestnut Street,” it does so as a “following height and bulk control” applicable to the subdistrict lying only south of Chestnut Street. Possibly the trial judge in this case conscientiously felt a compulsion to overlook the actual structure of the ordinances elements in order to achieve a sensible result not literally conveyed by its existing words—namely, the idea of having the minimum height requirement apply to both sides of the street, rather than just to the southerly area which council blocked out for the purpose of height restrictions which would permit the penetration of the sun shining from the south. However, if the legislative body, even through inadvertence, adopts language which falls short of expressing the best of purposes, then the power and the duty to repair the remedy remains with the legislative body. It does not go to the courts by default. Although the city’s brief charges that Allright’s position rests upon viewing section 14-1607(6) in a narrow focus, the City itself seeks to confine attention even more narrowly, namely to subparagraph (b) alone. The difficulty of the city’s position emerges clearly when that subparagraph is read within its entire context. A particular section must be read as an integral part of the whole, and not as a separate portion with an independent meaning. Olson v. Kucenic, 389 Pa. 506, 509-10, 133 A.2d 596, 598 (1957); Crary Home v. DeFrees, 16 Pa. Commonwealth Ct. 181, 329 A.2d 874 (1974). Ordinance Amendment Proposal Subsequent to the Time Governing This Case According to the record, Philadelphia City Council has undertaken consideration of an amendment, Bill No. 986, which would reorganize and rewrite subsection (6) by means of a new subsection, (7), which would express clearly those concepts which the City seeks to have the courts write into the ordinance in this case. Although the city questions the propriety of All-right’s reference to this proposed amendment, citing it does not introduce any new issue not raised below. Referring to the amendment constitutes merely a new argument as to the ordinance interpretation question, not a new issue. The amendment, introduced on June 12, 1986, came more than a year after the March 8, 1985 application of Allright. It would delete all of section 14-1607(6) as it reads in this case, and instead, have it read as follows: (6) Prohibited buildings. Upon any land abutting Chestnut street or Walnut street between Front street and Eighteenth street and Broad street between South Penn Square and Pine street, the following buildings shall be prohibited. (d) Kiosks (7) Bulk and Height Controls. (a) The main cornice line on any building erected on land abutting Chestnut street . . . shall not be less than thirty-five (35) feet above the sidewalk level. (b) No building shall be erected which is within an area two hundred fifty (250) feet south of the south side of Chestnut street between Front street and a point one hundred thirty (130) feet east of Broad street . . . unless there is compliance with the following height and bulk controls: (.1) The main cornice line abutting the south side of Chestnut street . . . shall not exceed fifty (50) feet in height above the sidewalk level; provided, that no portion of any building within two hundred fifty (250) feet south of the southerly property line of Chestnut street shall exceed this fifty (50) feet height limitation unless the portion or portions above this fifty (50) feet height limitation recede from the plane of the cornice line a distance equal to or greater than the distance it extends above the fifty (50) feet height limit; provided further, that in no case shall any portion or portions of a building exceed three hundred (300) feet in height. Of course, the foregoing proposed amendment cannot provide any meaningful indication as to the original intention of the City Council in adopting the original form of subsection 14-1607(6). However, the proposed bill is a good illustration of how to express the effect which the city’s brief seeks to read into the present language. Be fore limiting itself to a subdistrict located only south of Chestnut Street, the proposed amendment begins subsection (6) free of any such limitation and flatly and clearly would prohibit “Kiosks” on “any land abutting Chestnut Street,” a description which embraces both sides of the street because not limited by any preceding words at all. Then, in the new subsection (7), a new provision, subparagraph (a), restates the thirty-five foot minimum height requirement as to “any building erected on land abutting Chestnut Street,” unlimited by any preceding subdistrict description. Only thereafter, in subparagraph (b), does the amendment undertake to narrow the scope of the requirements by describing a subdistrict lying south of Chestnut Street, to which only the maximum height requirements are thereafter applied. Conclusion If the ordinance had been written to govern the present application like the proposed amendment, it would have barred the eight-foot structure. Because it was not written in that manner, administrative rewriting by the city planners, adjudicative rewriting by the Board of Adjustment, or judicial rewriting by the court—however well intended—are not legally warranted. As the ordinance language stood at the time of the application here, it applied no minimum height limit to the north side of the street in question. Therefore, the decision must be reversed. Order Now, July 16, 1987, the order of the Court of Common Pleas of Philadelphia County, dated November 20, 1986, is reversed.

Opinion by Judge Craig, Shenango, Inc., the employer, appeals from an order of the Workmens Compensation Appeal Board granting benefits to Ralph J. Swan, a claimant. We affirm. According to the referees findings of fact, Shenango had recently hired the claimant as a probationary employee at the time of his injury. On July 25, 1981, while working as a ladle cleaner, a weight fell on the claimant’s hand and injured his left ring finger. The claimant returned to his ladle cleaning job on July 27, 1981 but experienced difficulty with his injured finger. His foreman then transferred the claimant to a preexisting janitorial position in the company cafeteria. The claimant did not suffer a loss of earnings because of the transfer. On August 10, 1981, Shenango terminated the claimant’s employment in the janitorial position. On August 10, 1982, the referee stated the following “Conclusion of Law”, actually, a finding: 4. Your Referee accepts in part the testimony of Dr. Marryshow and in part the testimony of Dr. Slater that the Claimant was disabled from performing his regular job as a ladle cleaner but that the Claimant was not disabled from performing a job as laborer cleaning the cafeteria which according to testimony of Ron Connol ly would have been available to him with no loss of earnings until he was released to return to a ladle cleaner on January 5, 1982. The referee also expressed the following conclusion of law: 7. The Claimant in his Claim Petition has the initial burden of proving that he was disabled from performing his regular job as a ladle cleaner. The Claimant having met that burden, would be entitled to compensation benefits, however, Defendant then met its burden by showing that there was work available (the laborer job that involved cleaning the cafeteria) that the Claimant could perform without a loss of earnings. The referee accordingly suspended the claimants benefits. The board, in an order dated June 2, 1983, remanded the case to the referee for additional findings of fact concerning the reason for the claimants discharge from his employment on August 10, 1981. On remand, the referee specifically found that Shenango terminated the claimant not because of a physical inability of the claimant to do his job, but because the employer wished to exercise its right to terminate claimant, a probationary employee, at will. The referee again ordered that compensation for the claimant be suspended. The board, in a second appeal, entered an order as follows: The Referee has found as fact that the Claimant lost his job for reasons unrelated to the physical injury. We however now feel the reason for the loss of the job is immaterial. See Palmiere vs. Workmen's Compensation Appeal Board, [91 Pa. Commonwealth Ct. 137], 496 A.2d 918 (1985). If the Claimant cannot work because of the work injury, the Defendant must show work available the Claimant can perform. We therefore reverse the Referee and remand for the entry of an award. Our scope of review is limited to a determination of whether there has been a constitutional violation, an error of law or whether the findings of fact are supported by substantial evidence. Estate of McGovern v. State Employees’ Retirement Board, 512 Pa. 377, 517 A.2d 523 (1986). Shenango argues that the boards legal conclusion that the reason for the claimants job loss is immaterial is erroneous. Shenango also argues that the board exceeded its scope of review, contending that the board implicitly found as a fact that the claimant was terminated because of his injury and that Shenango could not offer work to the claimant which he could perform with his finger injured. The board, generally, is bound by the referees findings of fact; only where the referees findings of fact are not supported by substantial competent evidence in the record may the board substitute its own findings. Peer v. Workmen’s Compensation Appeal Board (B & W Construction), 94 Pa. Commonwealth Ct. 540, 503 A.2d 1096 (1986). The referee initially made the following crucial findings of fact which he later incorporated into his decision after the remand hearing: 21. Your Referee finds the Medical Reports of Dr. Marryshow and Dr. Slater to be credible that the Claimant was disabled from performing his regular job as a ladle cleaner from August 10, 1981 thru January 4, 1982. 22. Your Referee also finds credible the report of Dr. Slater which indicates that the Claimant was employable on a full time basis at work that did not involve the strenuous use of the left hand and, therefore, the Claimant was capable of performing a laborer job that involved the cleaning of the cafeteria. 23. Your Referee finds that there is no wage differential involved in the position of ladle cleaner to laborer as of August 1, 1981. . . . After the remand hearing, referee Steiner made an additional finding regarding the claimants termination: 6. Your Referee finds as a fact that the claimant was terminated on August 10, 1981 by the defendant not because of the physical inability of the claimant to do his job but rather because claimant was a probationary employee and the defendant wished to exercise its unilateral right to terminate the claimant since they were dissatisfied with the claimants work. . . . Close analysis of this case requires that the somewhat cryptic expressions of both the referee and the board be understood in light of the actual proofs in the record. First, study of the testimony clarifies the referees Finding No. 6 as not constituting a definite finding that the plaintiff was terminated from the light-duty job because of his own fault. Instead, the finding indicates that the employers representatives exercised their “unilateral” right to discharge the claimant, a probationary employee, because they could do so at will and thus, as the testimony indicates, prevent him from acquiring tenure rights which would make a later discharge more difficult. In light of the record, the referees finding, that the employer representatives “were dissatisfied with the claimants work,” can be understood for what it is, a statement of the subjective view of the foundry supervisor but not an objective finding of feet that the claim ant indeed did perform unsatisfactorily. The only testimony on this point in the record is that of an employer representative, not from the foundry, who, by hearsay, relayed the opinions of the foundry management; on a firsthand basis, he stressed only the desirability of discharging the employee before tenure rights accrued. We note that the board stated: If the claimant cannot work because of the work injury, the Defendant must show work available that claimant can perform. The employer misconstrues that statement of the board by treating it as if the board disregarded the referees finding as to the loss of the light-duty job and instead found that the claimant suffered a physical inability to perform that job. The board made no such finding. The word “If” signifies that the board was stating the general rule that the employer has the burden of showing that work is available to obviate a loss of earnings when a physical disability exists—here the physical inability to perform the original ladle cleaner job, which continued during the period in question in this case, between August of 1981 and January 5, 1982, when that physical disability ended. The employer relies on Woodard v. Workmen's Compensation Appeal Board, 49 Pa. Commonwealth Ct. 558, 411 A.2d 890 (1980), in which this court upheld a suspension of benefits where the claimants loss of earnings resulted from a discharge from his light-duty position on account of his own fault, his unexcused absences. In that case, the employer was not required to show the continuing availability of employment because the position in question obviously would have remained available, except for the claimants fault. In this case, the claimant’s last position was light-duty work which the employer had shown to be available to the claimant when he was placed in it (Conclusion of Law No. 7, August 10, 1982 referees decision). However, availability status as to that job ceased when the employer unilaterally made it unavailable to the claimant by discharging him. At that point, with the claimant still physically unable to perform the original ladle-cleaner job, the employer had its usual burden to show the availability of work performable without a loss of earnings. When a partially disabled claimant has been laid off from a modified job while still unable to perform the time-of-injury job, the employer then again has the standard burden of proof, to show the availability of work which the claimant is capable of performing. Smith v. Workmen's Compensation Appeal Board (Futura Industries), 80 Pa. Commonwealth Ct. 508, 471 A.2d 1304 (1984). See also, Busche v. Workmen's Compensation Appeal Board, 77 Pa. Commonwealth Ct. 469, 466 A.2d 278 (1983) where a claimant continued to be unable to perform his previous heavier work when the light-duty job was eliminated, and where the employer was held to the requirement of showing availability of work the claimant could perform. Here the board correctly took note of Palmiere v. Workmen's Compensation Appeal Board (East End Trucking), 91 Pa. Commonwealth Ct. 137, 496 A.2d 918 (1985), although neither that case nor any other provides support for the boards statement that “the reason for the loss of the job is immaterial” in these cases. The reason for the loss of the job can be quite material, as is illustrated by comparing the Woodard case, in which the light-duty job would have remained available except for workers own fault, with Busche or with Palmiere where a light-duty job was eliminated because of economic factors. We note further that whether or not the employer especially created the light-duty job can be material, but only because the need to develop a uniquely de signed job can suggest that suitable work is not otherwise available. In summary, the present case is one in which the claimant remained unable to perform the original job until January 5, 1982. When the employer unilaterally acted in August of 1981 to bar the claimant from the light-duty position which had been providing equal earnings, the employer then faced, and failed to meet, the burden of showing that performable work was otherwise available. Hence the boards decision reversing the referee and directing an award for the period between the two named dates was well founded. Order Now, July 7, 1987, the order of the Workmens Compensation Appeal Board, at Docket No. A-87684, entered on February 19, 1986, is affirmed. Judge Palladino concurs in the result only.

COLINS, Judge. Shenango Valley Regional Charter School (Shenango Valley) petitions for review of the November 2, 1999 opinion and order of the State Charter School Appeal Board (Board). Of the two questions presented, the first is whether the Board’s decision was timely; the second is whether the Board erred in refusing to accept additional evidence. We conclude the Board issued a timely decision and order and that the Board properly denied the request to supplement the record. Thus, the Board’s order shall be affirmed. The Hermitage School District, the Sharon City School District, and the Farrell School District all denied the regional charter school application submitted by Shenango Valley. The reasons for denial are as follows: • Shenango Valley failed to show demonstrated, sustainable support by teachers, parents, and other community members and students; • Shenango Valley failed to demonstrate capability, in terms of support and planning; • Shenango Valley failed to provide the information required by Section 1719-A of the Charter School Law; and, • Shenango Valley failed to demonstrate how it may serve as a model for other public schools. The Hermitage School District denied the application for the following additional reasons: • Shenango Valley did not demonstrate a need for a charter school; • Shenango Valley failed to offer evidence of compliance with the ADA and the Individuals with Disabilities Act; • Shenango Valley offered an insufficient curriculum; • and, there were concerns about financing, implementation, and administration of the charter school. The Court of Common Pleas of Mercer County confirmed the statutorily required sufficiency petition; therefore, pursuant to Section 1717-A(i) of the Charter School Law, 24 P.S. § 17-1717-A(i) Shenango Valley’s appeal from the decisions of the Sharon City School District and the Hermitage School District was filed with the Board. On August 18 and September 15, 1999 the Board met to consider Shenango Valley’s appeal. On November 2, 1999, the Board rendered its decision affirming the local school boards’ denial of application. In its opinion, the Board explained that additional evidence was refused because the evidence proffered was neither relevant nor probative. Based on the record created before the local school boards, the Board concluded that Shenango Valley failed to demonstrate sustainable support by teachers, parents, students, and other community members. Thus, the Board affirmed the local school boards’ refusal to grant a charter application. Shenango Valley now appeals to this Court. Initially we must set forth this Court’s scope and standard of review. Since the Board is the administrative agency charged with exclusive review of an appeal of a local school board decision not to grant an application, this Court’s jurisdiction is appellate. Therefore we shall affirm the determination unless this Court finds that the adjudication is in violation of constitutional rights, or is not in accordance with the law, or is not supported by substantial evidence. 2 Pa.C.S. § 704. Initially, Shenango Valley argues that the Board’s decision was untimely. It argues that the statutory language requires the Board to render a decision within 60 days of its initial meeting to consider the decision of a local school board. Shenango Valley asserts that herein the Board first met on August 18, 1999, and was required to render a decision within 60 days of that date. We find no basis in the Charter School Law to support that conclusion. The Charter School Law requires the Board to meet and officially review the certified record within 80 days of acceptance of an appeal. Further, not later than 60 days thereafter a written decision shall be issued affirming or denying the appeal. Section 1717-A(i)(8) of the- Charter School Law, 24 P.S. § 17-1717-A(i)(8). The Charter School Law mandates that once the Board renders its decision, the local school boards shall act swiftly and implement the decision of the Board. Section 1717-A(i)(9) of the Charter School Law, 24 P.S. § 17-1717-A(i)(9). The statute emphasizes that time is of the essence and directs the local school boards and the Board to quickly resolve the issue of whether to grant or deny an institutions charter school application. Thus, we conclude that the legislature’s use of the word “shall” in Section 1717—A(i)(8) of the Charter School Law, 24 P.S. § 17-1717-A(i)(8) is mandatory, requiring the Board to issue its written decision and order within 60 days of its final hearing on an application. In the case sub judice the Board rendered a timely decision. The Board first considered the appeal on August 18, 1999. Subsequently, on September 15, 1999, the record was closed and the hearing concluded. On that same date, the Board voted to affirm the decision of the local boards. The Board issued a written decision and order 46 days later on November 2, 1999. Having rendered a written decision and order within 60 days of the close of the hearing, (ie., September 15, 1999) the Board’s decision and order were timely. Furthermore, there is no merit to the contention that the Board erred in denying the request to supplement the record. The Board has no duty to accept additional evidence, and Shenango Valley offered no articulable legal arguments favoring supplementing a record with newspaper articles, nor did it establish that the additional evidence was not “previously available” as required by the Charter School Law. Section 1717-A(i)(6) of the Charter School Law, 24 P.S. § 17-1717-A(i)(6). The last issue asserts that the Board erred as a matter of law in concluding that Shenango Valley failed to submit sufficient evidence to support the grant of a charter application. This issue is likewise frivolous. The Board affirmed the local school boards finding that Shenango Valley failed to submit an application containing commitments for student enrollment, failed to submit its curriculum, failed to submit specific school operation information (hours, calendar, length of school year), and failed to submit its financial plan evidencing its ability to operate. Shenango Valley ignored these are specific requirements set forth in Sections 1717—A(e)(2)(iii) and 1719-A of the Charter School Law, 24 P.S. §§ 17—1717—A(e) (2) (iii), 17-1719-A. Thus, there was no error in affirming the local districts’ denial of the charter school application. Accordingly, the order of the Charter School Appeal Board is affirmed. ORDER AND NOW, this 31st day of July 2000, the order of the Charter School Appeal Board is AFFIRMED. . Shenango Valley did not pursue an appeal of the denial of its regional charter school application by the Farrell School District. . Eligibility to take an appeal of the denial of a charter application is predicated upon the confirmation of a sufficiency petition by the court of common pleas of proper jurisdiction. The charter school applicant must file the sufficiency petition. The sufficiency petition must contain, inter alia, signatures of at least 2 percent of the residents of each school district granting the charter or of 1,000 residents from each of the school districts granting the charter, whichever is less, in addition to other statutorily required information. 24 P.S. § 17 — 1717—A(i)(2),(3). . Act of June 19, 1997, P.L. 225, 24 P.S. §§ 17-1701-A-17-1732-A. . The Board was constituted in the second week of June 1999. . Section 1717-A(h), (i)(l) of the Charter School Law, 24 P.S. § 17-1717-A(h), (i)(l). . The Commonwealth Court has exclusive jurisdiction of appeals from final orders of government agencies. 2 Pa.C.S. § 702; 42 Pa. C.S. § 763(a)(1). All decisions of Charter School Appeal Board are subject to review by Commonwealth Court. Section 1717-A(i)(10), 24 P.S. 17 — 1717—A(i)(l 0).

LEADBETTER, Judge. David L. George, Jr., plaintiff in this action for the wrongful death of his wife, appeals from the judgment entered on a jury verdict in favor of defendant, Conrail. The issue is what effect the Federal Railroad Safety Act of 1970, 84 Stat. 971, as amended, 49 U.S.C. § 20101 et seq. and associated regulations at 23 C.F.R. §§ 646.214(b)(3) and (4) have on Mr. George’s claim, which is based on the alleged inadequacy of the warning signs posted at the railroad crossing. In view of the recent decision of the United States Supreme Court in Norfolk Southern Railway Company v. Shanklin, - U.S.-, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000), we must conclude that the claim is preempted. In November of 1991, Julie George was killed when a Conrail freight locomotive collided with the car she was driving. The accident occurred at the South Beech Street railroad crossing in the Borough of Fleetwood, Berks County. At the time of the accident, only reflectorized crossbuck signs at the side of the cartway, erected by Conrail in 1987, warned drivers of the presence of the rail crossing. David George filed wrongful death and survival actions in Philadelphia County against Conrail asserting negligence in the failure to erect cross gates and lights at the railroad crossing. The action was transferred to Berks County and Conrail joined Barry and Lori Burkert, the owners of the land at the northeast corner of the railroad crossing, the Pennsylvania Public Utility Commission (PUC), Pennsylvania Department of Transportation (DOT), Richmond Township and the Borough of Fleetwood. Following the entry of summary judgment in favor of PUC and DOT, dismissal of the action against Richmond Township and settlement with the Burkerts, the claims against Conrail for inadequate warnings at the crossing and against the Borough for inadequate road signs and markings were tried before a jury. In a special verdict, the jury found neither Conrail nor the Borough negligent. Following denial of George’s post-trial motions for judgment n.o.v. or a new trial, the court entered judgment in favor of Conrail and the Borough according to the verdict. Thereafter, George filed the present appeal in which he seeks a new trial against Conrail. George contends that the trial court erred in refusing to instruct the jury that the federal regulations at 23 C.F.R. § 646.214(b) established a standard requiring cross gates and lights at the Beech Street crossing. The regulations at 23 C.F.R. § 646.214 address the adequacy of warning devices at railroad crossings where improvements have been made using federal funds. The Supreme Court described the federal statutory and regulatory scheme as follows: In 1970, Congress enacted the Federal Railroad Safety Act (FRSA) ‘to promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.’ 49 U.S.C. § 20101. The FRSA grants the Secretary of Transportation the authority to ‘prescribe regulations and issue orders for every area of railroad safety,’ § 20103(a), and directs the Secretary to ‘maintain a coordinated effort to develop and carry out solutions to the railroad grade crossing problem,’ § 20134(a). Three years after passing the FRSA, Congress enacted the Highway Safety Act of 1973, § 203, 87 Stat. 283, which, among other things, created the Federal Railway-Highway Crossings Program (Crossings Program), see 23 U.S.C. § 130. That program makes funds available to States for the ‘cost of construction of projects for the elimination of hazards of railway-highway crossings.’ § 130(a). To participate in the Crossings Program, all States must ‘conduct and systematically maintain a survey of all highways to identify those railroad crossings which may require separation, relocation, or protective devices, and establish and implement a schedule of projects for this purpose.’ § 130(d). That schedule must, ‘[a]t a minimum, ... provide signs for all railway-highway crossings.’ Ibid. The Secretary, through the Federal Highway Administration (FHWA), has promulgated several regulations implementing the Crossings Program. One of those regulations, 23 C.F.R. § 646.214(b) (1999), addresses the design of grade crossing improvements. More specifically, §§ 646.214(b)(3) and (4) address the adequacy of warning devices installed under the program. According to § 646.214(b)(3), ‘[ajdequate warning devices ... on any project where Federal-aid funds participate in the installation of the devices are to include automatic gates with flashing light signals’ if any of several conditions are present. Those conditions include (A) ‘[m]ultiple main line railroad tracks,’ (B) multiple tracks in the vicinity such that one train might ‘obscure the movement of another train approaching the crossing,’ (C) high speed trains combined with limited sight distances, (D) a ‘combination of high speeds and moderately high volumes of highway and railroad traffic,’ (E) the use of the crossing by ‘substantial numbers of schoolbuses or trucks carrying hazardous materials,’ or (F) when a ‘diagnostic team recommends them.’ § 646.214(b)(3)(i). Subsection (b)(4) states that ‘[f]or crossings where the requirements of § 646.214(b)(3) are not applicable, the type of warning device to be installed, whether the determination is made by a State regulatory agency, State highway agency, and/or the railroad, is subject to the approval of FHWA.’ Thus, at crossings where any of the conditions listed'in (b)(3) exist, adequate warning devices, if installed using federal funds, are automatic gates and flashing lights. And where the (b)(3) conditions are not present, the decision of what devices to install is subject to FHWA approval. Shanklin, - U.S. at-, 120 S.Ct. at 1471-72 (footnote omitted). In the present case, it is undisputed that in 1987 Pennsylvania participated under Section 203 of the Highway Safety Act of 1973 (The Act), 23 U.S.C. § 130, in a program designed to improve safety at railroad crossings. The program was intended to bring all crossbuck signs at public rail-highway crossings into conformance with the Federal Highway Administration Manual on Uniform Traffic Control Devices (MUTCD). Pursuant to this program, representatives from DOT, PUC, and Conrail conducted a field inspection of the Beech Street crossing. Thereafter, Conrail installed one new crossbuck sign mounted on a breakaway wooden post at the south side of the crossing and placed an additional breakaway post for the existing crossbuck sign on the north side of the crossing. After completion of this work and submission of required documentation, DOT paid Conrail from funds apportioned to Pennsylvania by the Federal Highway Administration pursuant to Section 203 of The Act, 23 U.S.C. § 130. The Beech Street crossing has multiple main line railroad tracks, which satisfies one of the conditions triggering the requirements under 23 C.F.R. § 646.214(b)(3) as to particular warning devices. In CSX Transportation, Inc. v. Easterwood, 507 U.S. 658, 113 S.Ct. 1732, 123 L.Ed.2d 387 (1993), the Supreme Court held that when these regulations are applicable, state tort law is preempted. Id. at 670, 113 S.Ct. 1732. The Court in Easterwood, concluded that the preemptive effect arose from the express preemption clause of the Federal Railroad Safety Act under which “the States are permitted to ‘adopt or continue in force any law, rule, regulation, order, or standard relating to railroad safety until such time as the Secretary [of Transportation] has adopted a rule, regulation, order, or standard covering the subject matter of such State requirement.’ ” Id. at 662, 113 S.Ct. 1732 quoting 45 U.S.C. § 434 (recodified at 49 U.S.C. § 20106). The Easterwood Court summarized its analysis as follows: In short, for projects in which federal funds participate in the installation of warning devices, the Secretary has determined the devices to be installed and the means by which railroads are to participate in their selection. The Secretary’s regulations therefore cover the subject matter of state law which, like the tort law on which respondent relies, seeks to impose an independent duty on a railroad to identify and/or repair dangerous crossings. 507 U.S. at 671,113 S.Ct. 1732. Most recently, in Shanklin, the Supreme Court ruled that the preemptive regulations at §§ 646.214(b)(3) and (4) apply to all warning devices actually installed with federal funds. — U.S. at-, 120 S.Ct. at 1473. The Shanklin Court specifically rejected the contention that preemption should not apply where, as in the present case, federal funds are used merely to equip crossings with advance warning signs and reflectorized crossbucks, the bare minimum required by the MUTCD, without any judgment as to whether the signs are adequate. Id. at-, 120 S.Ct. at 1473. In Shanklin, the Court stated: When the FHWA approves a crossing improvement project and the State installs the warning devices using federal funds, §§ 646.214(b)(3) and (4) establish a federal standard for the adequacy of those devices that displaces state tort law addressing the same subject.... It is this displacement of state law concerning the devices’ adequacy, and not the State’s or the FHWA’s adherence to the standard set out in §§ 646.214(b)(3) and (4) or to the requirements of the MUTCD, that preempts state tort actions. Whether the State should have originally installed different or additional devices, or whether conditions at the crossing have changed such that automatic gates and flashing lights would be appropriate, is immaterial to the preemption question. Shanklin, — U.S. at-, 120 S.Ct. at 1476. In the present case, Conrail used federal funds to install the crossbuck signs, which were placed in accordance with applicable federal regulations. Therefore, George’s state common law cause of action for inadequate warning devices is barred by the doctrine of preemption and the issue of Conrail’s liability should never have reached a jury. Conrail is entitled to judgment as a matter of law. Accordingly, the judgment in favor of Conrail is affirmed. ORDER AND NOW, this 10th day of July, 2000, the judgment entered in the Court of Common Pleas of Berks County in the above captioned matter in favor of Conrail is hereby affirmed. . We may affirm for reasons other than those relied upon by the trial court. See Beck v. Zabrowski, 168 Pa.Cmwlth. 385, 650 A.2d 1152, 1156 n. 12(1994). . Prior to trial, Conrail moved for summary judgment on the ground of federal preemption. The trial court denied the motion concluding that an issue of fact existed as to whether Conrail had been relieved of any duty to install gates and lights as the result of a determination by a diagnostic team that the crossbuck signs were adequate. As stated herein, this was not the proper focus of analysis. The determinative question is whether federal funds were used to install warning devices. . George has entered into a settlement of his claim against the Borough of Fleetwood. . Pennsylvania called the program the "Railroad Crossbuck Replacement Program” on the administrative forms used by the Pennsylvania Department of Transportation to document work performed under the program. The U.S. Supreme Court, in Shanklin, called the program funded under Section 203 of The Act, as this one was, the "Crossings Program.”

JUILIANTE, Senior Judge. The Southeastern Pennsylvania Transportation Authority (SEPTA) appeals from two orders of the Court of Common Pleas of Philadelphia County (trial court), dated September 23, 1999, that transferred the underlying civil actions to compulsory arbitration and ordered SEPTA to bear the costs of said arbitration. For the reasons that follow, we affirm in part and reverse in part. On April 20, 1998, Annie Williams commenced a civil action against SEPTA and Leonard Mancini, alleging that, while a passenger on a SEPTA bus on December 21, 1996, she sustained injuries as a result of a collision between the bus and Mr. Mancini’s 1998 Mitsubishi pick-up truck. Two other lawsuits were also commenced as a result of that same accident and, by order dated June 30, 1998, the trial court consolidated Ms. Williams’ action with the other two pending cases. Similarly, on November 25, 1998, Mr. Mancini commenced an action against SEPTA and Tiffany Tingle, an employee of SEPTA, averring that he sustained injuries as a result of the collision between his vehicle and the bus. Mr. Mancini alleged that Ms. Tingle was negligent in her operation of the bus. On April 5, 1999, Mr. Mancini’s action was consolidated with the other pending lawsuits. By September 23, 1999, one of the four lawsuits had settled and the remaining lawsuits were transferred to compulsory arbitration. Of the three ordered to arbi tration, the trial court, by separate orders dated September 23, 1999, ordered that SEPTA bear the costs of arbitration for the Mancini and Williams cases. On review, we are asked to determine whether the trial court erred in ordering SEPTA to bear the costs of arbitration regardless of the outcome. , In its opinion in support of its orders, the trial court stated that it imposed the costs of arbitration on SEPTA because it unreasonably refused to pay minimal “costs-of-defense” to settle all four cases and prevent further proceedings. The trial court further opined that since SEPTA failed to comply with Pennsylvania Rule of Appellate Procedure 1923, any complaints by SEPTA regarding the lack of a record were waived. In addition,, the trial court analogized Philadelphia County Court Rule *212.2 (Local Rule *212.2) to the present situation. Local Rule *212.2 allows the trial court to impose sanctions on a party for its failure to settle a lawsuit. The trial court determined that SEPTA’s refusal to make an offer to settle was inappropriate and vexatious and, therefore, it imposed the costs of arbitration against SEPTA. We now conclude that the trial court erred in assessing the costs of arbitration against SEPTA. Pursuant to Section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, local courts are permitted to establish compulsory arbitration procedures. Although Section 7361 does not provide for the payment or allocation of costs incurred, it does provide that the arbitrators shall have the powers prescribed in the general arbitration rules. Section 7312 of the general arbitration rules provides that “[u]nless otherwise prescribed in the agreement to arbitrate, the expense and fees of the arbitrators and other expenses (but not including counsel fees) incurred in the conduct of the arbitration shall be paid as prescribed in the award.” Section 7312 of the Judicial Code, 42 Pa.C.S. § 7312. In other words, the allocation of the costs of arbitration is within the discretion of the arbitrators and not the trial court. Additionally, Pennsylvania Rule of Civil Procedure 1306, relating to compulsory arbitration awards, provides that the arbitration panel shall dispose of all claims for relief and, if requested, make an award for delay damages under Pennsylvania Rule Civil Procedure 238. Pa.R.C.P. No. 1306. Thus, should the arbitration panel find in favor of Mr. Mancini and Ms. Williams, the Rules of Civil Procedure provide a mechanism whereby they may seek recovery for an unreasonable delay in the proceedings. See Pa.R.C.P. No. 238; Craig v. Magee Mem’l Rehabilitation Ctr., 512 Pa. 60, 515 A.2d 1350 (1986) (if the plaintiffs recovery results from an arbitration .proceeding, the plaintiff may petition for delay damages). Furthermore, we conclude that the trial court erred in analogizing Local Rule *212.2 to the present situation. Local Rule *212.2 provides, in pertinent part, as follows: (C) Prior to termination of the settlement conference, the Trial Judge shall determine whether he or she can fairly evaluate the settlement value of the case. (D) If the Trial Judge determines that he or she can fairly evaluate the settlement value of the case, he or she shall recommend a settlement amount to the attorneys for the parties, and the recommendation with the parties’ agreement or non-agreement with it shall be recorded and made part of the case file. (E) If prior to the verdict the plaintiff has agreed to accept the amount recommended by the Trial Judge but the defendant has not agreed to pay that amount and the final judgment is at least twenty (20) percent more than the Trial Judge’s recommendation (e.g., if the Judge’s recommendation is $10,000, the final judgment must be $12,000 or more), or if prior to the verdict the defendant has agreed to pay the amount recommended by the Trial Judge but the plaintiff has not agreed to accept that amount and the final judgment is at least twenty (20) percent less than the Trial Judge’s recommendation (e.g., if the Judge’s recommendation is $10,000, the final judgment must be $8,000 or less), then the Trial Judge may, within ten (10) days after the final judgment, schedule a hearing to determine whether or not any sanctions shall be ordered against the party who had refused to settle. Philadelphia County Civil Division Court Rule *212.2. Presently, the record before us is devoid of any evidence suggesting the trial court’s settlement recommendation. Even assuming such a recommendation was made, the underlying lawsuits have not gone to trial and, therefore, there is no verdict. Thus, the trial court could not have determined that its recommendation was at least twenty percent of the verdict. Furthermore, the trial court failed to hold a hearing to determine whether sanctions were appropriate. In Treu v. Harleysville Ins. Co., 443 Pa.Super. 567, 662 A.2d 1106 (1995), the Superior Court was confronted with the issue of whether sanctions were appropriate under Local Rule *212.2. The Treus purchased a homeowner’s insurance policy from Harleysville. In mid-1992, they submitted a claim for damages to their home caused by a storm. Harleysville denied the claim. The Treus brought a suit alleging that Harleysville refused to pay and failed to cooperate in a good faith manner. Har-leysville maintained that the damages to the Treus’ home were the result of long-term wear and deterioration. The matter went to arbitration and the Treus were awarded $13,426 .30. Harleys-ville appealed and demanded a jury trial. A jury trial was scheduled to begin in June of 1994. In its opinion, the lower court stated that it met with the parties prior to the trial and conducted two conferences at which settlement was discussed. The Treus valued the case at $13,426.30 and Harleysville valued it at $1,000.00. The lower court then suggested a bench trial to avoid court costs, stating that it would impose Local Rule *212.2 sanctions against the party demanding a jury trial. While Harleysville agreed to a bench trial, the Treus did not. After a seven-day jury trial, the jury returned a verdict in favor of the Treus in the amount of $948.40. Accordingly, the lower court entered sanctions against the Treus in the amount of $17,500.00. The Treus’ counsel requested oral argument on the matter, but the lower court refused. Although the lower-court did not rule on it, the Treus filed an oral motion to vacate sanctions. The Treus appealed to the Superior Court, arguing that the lower court erred and abused its discretion when it imposed sanctions pursuant to Local Rule *212.2. In order to review the Treus’ complaints, the Superior Court found it necessary to review a transcript of the settlement conferences to determine whether the lower court followed the procedures of Local Rule *212.2. Since the record did not contain such a transcript, the Superior Court reversed the order of sanctions. The Superior Court reasoned that it could not assume that the lower court’s assertions were an accurate portrayal of the settlement conferences, if indeed they took place. In addition, the Superior Court noted that the Treu court failed to comply with the requirements of Local Rule *212.2(E). The Superior Court pointed out that since the lower court failed to make a recommendation of settlement to the parties, it could not determine if the final judgment was at least twenty percent of its recommendation. Moreover, the lower court failed to hold a hearing to determine whether sanctions were appropriate. Although factually dissimilar to the ease sub judice, the application of Local Rule *212.2 is similar. There is no evidence of record in the present case to indicate that the trial court made a recommendation of settlement to the parties or attempted to hold a hearing on the matter. Additionally, the trial court cannot compare any recommendation, if made, to the verdict, since a verdict has not yet been rendered. For these reasons, we conclude that the trial court erred in analogizing Local Rule *212.2 to the present situation. Accordingly, based upon the foregoing, we affirm that portion of the trial court’s orders submitting the Williams and Mancini lawsuits to compulsory arbitration and reverse that portion of the trial court’s orders mandating SEPTA to bear the costs of said arbitration. ORDER AND NOW, this 27th day of June, 2000, it is hereby ordered that the September 23, 1999 orders of the Court of Common Pleas of Philadelphia County at docket numbers 9804-01696 and 9811-03319 are affirmed to the extent that they refer the civil suits to compulsory arbitration and are reversed to the extent that they mandate SETPA to bear the costs of said arbitration. . SEPTA filed separate appeals from the trial court's September 23, 1999 orders. By order of May 17, 2000, we consolidated the appeals for disposition. . By orders dated November 10, 1999, Senior Judge Warren G. Morgan of this Court determined that the trial court’s September 23, 1999 orders were appealable. Judge Morgan ordered that the cases proceed to compulsory arbitration but that no costs be taxed during the pendency of these appeals. . Neither Mr. Mancini nor Ms. Williams is participating in their respective appeals. . See Pa.R.A.P. 1925(a). . Rule 1923 provides as follows: If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal. Pa.R.A.P. 1923 (emphasis added). . Since the trial court did not hold a hearing under Local Rule *212.2(E), it follows that it did not take into consideration those factors listed in Subsection (F) in imposing the costs of arbitration, e.g., whether there was any merit to plaintiff's claim or defendant’s defense or whether the plaintiff's evidence of damages was exaggerated or defendant unduly minimized the plaintiff's damages, etc. . The Superior Court noted that the docket sheet did not indicate that the settlement conferences occurred. . The Superior Court further questioned the validity of Local Rule *212.2. Although that particular issue was not before the Court, the Superior Court noted its reservations regarding a rule that gives the lower court the power to enforce an order that includes monetary sanctions for failure to accept a settlement.

BECK, J.: ¶ 1 Plaintiffs-appellants Marie and Donald Gavula filed this appeal from the trial court’s grant of summary judgment in favor of defendants-appellees ARA Services, Inc. and Air/Leisure/Services International Group, Inc. (“appellees”). We affirm. ¶ 2 The relevant undisputed facts are set forth in the trial court’s opinion: On September 17, 1992, plaintiff, Marie Gavula, was injured in a motor vehicle accident during the course of her employment with Ogden Ground Services, Inc. (“Ground Services”). At the time she was a passenger in a step van owned by her employer and operated by a co-employee. The door of the van was kept open while the van was in operation. Ms. Gavula, a passenger, was standing when the driver had to stop the van. Ms. Gavula was then thrown from the van, and injured. Plaintiff alleges that the modifications made to the van, including rearranging the interior furnishings, had rendered it defective and that said defects were the cause of her injuries. From 1969 to 1986, plaintiffs employer, Ground Services, was a wholly owned subsidiary of defendant ARA. In 1986 a change in corporate structure made Ground Services a subsidiary of The ARA Group, itself a subsidiary of ARA. In September, 1989, Ground Services was transferred to another business unit of ARA, Air/Leisure Services/International (“Air/Leisure”). In 1990, ARA sold all the outstanding and issued stock of Ground Services to Ogden Alied Services Group (“Ogden”). The stock sale transferred all the business and assets of [Ground Services], including the van involved in plaintiffs accident. ¶ 3 Appellants filed a complaint in which they alleged three causes of action: 1) that appellees were negligent with respect to, inter alia, their design of the interior of the step van they sold to Ogden, and that this negligence was the proximate cause of her injuries; 2) that appellees were “sellers” within the meaning of Section 402A of the Restatement (Second) of Torts and were therefore strictly liable for the alleged defects in the step van they sold to Ogden; and 3) that appellees breached a warranty of merchantability when they sold the step van to Ogden. ¶ 4 Appellees filed a motion for summary judgment, arguing that they were neither “sellers” nor “merchants” as envisioned by Section 402A of the Restatement and the Uniform Commercial Code, 13 Pa. C.S.A. § 2314, and that they therefore could not be held liable in strict products liability or for a breach of warranty. Ap-pellees did not specifically move for summary judgment on the negligence count of appellants’ complaint. The trial court granted summary judgment and dismissed the entire case. ¶ 5 In this appeal, appellants challenge the trial judge’s grant of summary judgment in favor of appellees. Appellees claim that summary judgment was proper on all counts, and also that the instant appeal should be quashed because it was not timely filed. We address the timeliness issue first. ¶ 6 On February 12,1998, the trial judge entered an order granting appellees’ summary judgment motion, and dismissing with prejudice the entire complaint against appellees. The appellants did not file an appeal at this time, because other defendants remained in the case. The docket indicates that the rest of the case was settled on September 15, 1998. The instant appeal was not filed until April 7, 1999, and appellees argue that this was well beyond the expiration of the thirty day appeal period set forth in Pa.R.App.P. 903(a) (notice of appeal shall be filed within 30 days after the entry of the order from which the appeal is taken). ¶ 7 However, a close review of the docket and applicable rules reveals that the instant matter did not become appealable until March 30, 1999. The docket entry for September 15, 1998, the date when the matter was apparently settled, does not contain the requisite notation that notice was given to the parties in accordance with Pa.R.Civ.P. 236 (the prothonotary shall immediately give written notice of the entry of any order, decree or judgment to each party’s attorney of record). ¶8 Before an order of the lower court becomes appealable, it must be entered on the docket. Pa.R.App.P. 301(a). Rule 108(b) of the Pennsylvania Rules of Appellate Procedure provides that: the date of entry of an order in a matter subject to the Pennsylvania Rules of Civil Procedure shall be the day on which the clerk makes the notation on the docket that notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b). Pa.R.App.P. 108(b) (emphasis added). ¶ 9 Notwithstanding the fact that the trial judge entered an order in September 1998 declaring that the matter had been settled, the appropriate notation that Rule 236 notice had been given was not included in the docket at that túne. The notation required by Pa.R.App.P. 108(b) was not made in the docket until appellants filed an Order to Settle, Discontinue and End on March 30, 1999. This later docket entry contains the required Rule 236 notice, and it was only at this time that the matter became appealable. Frazier v. City of Philadelphia, 557 Pa. 618, 735 A.2d 113, 115 (1999); Jara v. Rexworks, Inc., 718 A.2d 788 (Pa.Super.1998). See also Baker v. Cambridge Chase, Inc., 725 A.2d 757 (Pa.Super.1999) (prior orders dismissing fewer than all claims or defendants were made final when Order to Settle, Discontinue and End was filed). Appellants’ notice of appeal was therefore timely filed on April 7,1999. ¶ 10 We now address the merits of the appeal. Appellants argue that the trial judge erred when she dismissed their claim that the step van in which Marie Gavula was a passenger was defective, and that appellants should be held strictly liable for her injuries pursuant to Restatement (Second) of Torts Section 402A. Section 402A provides, in pertinent part: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product ... Restatement (Second) of Torts § 402A. ¶ 11 Appellants assert that the sale of assets, including the step van involved in the accident, was enough to characterize appellees as “sellers” within the terms of Section 402A for purposes of strict liability. We disagree. The drafters of Section 402A summarized the policies underlying the doctrine of strict liability in Comment c thereto: On whatever theory, the justification for the strict liability has been said to be that the seller, by marketing his product for use and consumption, has undertaken and assumed a special responsibility toward any member of the consuming public who may be injured by it; that the public has the right to and does expect, in the case of products which it needs and for which it is forced to rely upon the seller, that reputable sellers will stand behind their goods; that public policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper ones to afford it are those who market the products. Restatement (Second) of Torts § 402A Comment c; Frey v. Harley Davidson Motor Co., 734 A.2d 1, 18 (Pa.Super.1999) (Beck, J., dissenting). Therefore, although the language of § 402A refers generally to “sellers,” the policy interests it is designed to promote are not promoted by the application of strict liability to any and all kinds of “sales” transactions. ¶ 12 In fact, Comment f to Section 402A discusses the definition of “seller” and provides that strict liability is “not intended to apply to sales of the stock of merchants out of the usual course of business, such as execution sales, bankruptcy sales, bulk sales, and the like.” Restatement (Second) of Torts § 402A, Comment f. Moreover, our Supreme Court has held that the term “seller,” as used in § 402A, is used generically to include all suppliers of products who, because they are engaged in the business of selling or supplying a product, may be said to have “undertaken and assumed a special responsibility” toward the consuming public and who are in a position to spread the risk of defective products. Berkebile v. Brantly Helicopter Corp., 462 Pa. 83, 337 A.2d 893, 898 (1975). ¶ 13 Appellant casts her argument as if appellees were in the business of selling vans, and as such, were subject to strict liability. Appellant misperceives the posture of appellees. They were not in the business of selling vans either on their own or through their subsidiary Ground Services. Correctly viewed, ARA was the parent company of Ground Services, which then sold all of the subsidiary’s stock and assets to Ogden. ARA’s actions in doing so do not satisfy the definition of “seller” in § 402A. Berkebile v. Brantly Helicopter, supra. Nothing in 402A contemplates that an entity selling all of its stock and assets to an unrelated successor entity would be subject to strict liability. Indeed, the purposes of section 402A strict seller liability, as described in Comments c and f, would not be served if such were the law. The stock sale in this case is simply not the kind of “sale” envisioned by § 402A strict liability. See also Cafazzo v. Cent. Med. Health Serv., Inc., 542 Pa. 526, 668 A.2d 521, 523 (1995) (hospital and doc tor who implanted defective mandibular prosthesis not “sellers” for purposes of § 402A strict liability since they were not engaged in the business of selling); Musset v. Vilsmeier Auction Co., 522 Pa. 367, 562 A.2d 279 (1989) (auctioneer could not be held strictly liable under § 402A for products it merely assisted owner in selling). We therefore affirm the trial judge’s decision granting summary judgment on the issue of § 402A strict products liability. ¶ 14 We reach the same conclusion with respect to appellants’ breach of warranty claim. Under the Uniform Commercial Code, there is an implied warranty of merchantability in a contract of sale “if the seller is a merchant with respect to goods of that kind.” 13 Pa.C.S. § 2314. The Code defines “merchant” as a person who deals in goods of the kind, or one who otherwise holds himself out as having knowledge or skill peculiar to the goods involved. 13 Pa.C.S. § 2104. A person selling substantial corporate assets to another corporation therefore is not a “merchant” for purposes of a warranty of merchantability. The Code’s definition of “merchant” is not even as broad as the Restatement’s definition of “seller” for purposes of § 402A liability, and therefore no liability would attach for an implied warranty of merchantability under the UCC. See also Restatement (Second) of Torts § 402A, comment f (basis for implied warranty of merchantability is lacking where seller is not merchant who deals in such goods, limited by UCC § 2-314). ¶ 15 Appellants also claim that appellees breached an express warranty. In their complaint, appellants alleged that appellees “represented, and in other manner, expressed, warranties that the Modified Step Van was safe for use for the purposes intended, and was of merchantable quality,” and that such representations were false. ¶ 16 The only “express warranty” in this case appeared in the Stock Sale Agreement between Air/Leisure Services/International Group and Ogden. In the Agreement the seller promised Ogden that the “tangible assets used by the Company in the operation of the Business are in sufficient operating condition and repair to conduct the Business as presently conducted subject to wear, tear and use in the ordinary course.” The trial judge did not discuss this claim, but dismissed it along with the claim of implied warranty of merchantability. We hold that, even if there existed an action for breach of express warranty based on language in the contract between appellees and Ogden, it would be Ogden’s action and not that of appellants, who were not parties to the contract. See, e.g., Pritchard v. Liggett & Myers Tobacco Co., 350 F.2d 479 (3d Cir.1965) (under Pennsylvania law, one who was not purchaser could not maintain claim of breach of express warranty where there was absence of privity). We therefore affirm the dismissal of this claim as well. ¶ 17 Finally, we turn to appellants’ claim that the trial judge erred in dismissing their negligence claim, despite the fact that appellees did not move for summary judgment on that claim. The trial judge did not discuss this issue in her opinion. We must consider the issue nonetheless because, if appellants did not properly plead negligence, we must decide the issue as a matter of law. ¶ 18 Appellees make two arguments on this point. First they assert that there was no negligence claim in this lawsuit because the relevant counts were not specifically identified as “Negligence” counts in appellants’ complaint. However, Count I of the complaint is clearly intended to be a claim for negligence. See Weiss v. Equibank, 313 Pa.Super. 446, 460 A.2d 271 (1983) (complaint must simply apprise defendant of nature and extent of claim so that defendant has notice and may meet plaintiffs proof at trial; plaintiff is not obliged to identify legal theory underlying complaint); DelConte v. Stefonick, 268 Pa.Super. 572, 408 A.2d 1151 (1979) (same). ¶ 19 Appellees next argue that the claim for negligence is inadequate because it lacks an allegation of duty. It is our most basic hornbook law that, in order to make out a claim of negligence, a plaintiff must allege that the defendant owed her a duty to conform to a certain standard of conduct, the defendant breached that duty, and the breach was the proximate cause of actual damages. Prosser and Keeton on Torts, § 30 (5th Ed.1984); Filter v. McCabe, 733 A.2d 1274 (Pa.Super.1999); Elias v. Lancaster Gen. Hosp., 710 A.2d 65 (Pa.Super.1998); Casey v. Geiger, 346 Pa.Super. 279, 499 A.2d 606 (1985). ¶ 20 We hold as a matter of law that appellants have not alleged sufficient facts to make out a claim for negligence. Specifically, they have not established that appellees, the former owners of the subject step van, owed Marie Gavula a duty of care at the time of her accident. Appellants have simply alleged that appellees were “negligent” in various ways related to their modification of the step van. These allegations of negligence are incomplete, however, without any correlative factual averments as to a duty owed by appellees. Pike County Hotels Corp. v. Kiefer, 262 Pa.Super. 126, 396 A.2d 677, 681 (1978). We cannot infer such duty from allegations about the nature of the work performed by appellees in modifying the van. Id. See also Carlotti v. Employees, 717 A.2d 564 (Pa.Super.1998) (credit union had no duty to inform employee of terms of insurance policy); Elias v. Lancaster Gen. Hosp., supra (hospital did not owe duty to preserve foreign objects removed from plaintiffs body); Stempler v. Frankford Trust Co., 365 Pa.Super. 305, 529 A.2d 521 (1987) (mere allegation that mortgage company performed inspection of house did not provide basis for duty owed to buyers to discover and report deficiency in occupancy permit). ¶ 21 Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Swift v. Northeastern Hosp., 456 Pa.Super. 330, 690 A.2d 719 (1997). Here, appellants averred no relationship with appellees that would give rise to a duty. See Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983) (lawyer who drafted will did not owe duty to intended beneficiary such that beneficiary could have negligence action against lawyer); Ferry v. Fisher, 709 A.2d 399 (Pa.Super.1998) (defendant car dealer did not owe duty to plaintiff who was injured in accident with car being test driven by potential buyer). We therefore affirm the trial judge’s grant of summary judgment disposing of the entire case against appel-lees. ¶ 22 Order granting summary judgment affirmed. . Other entities listed in the caption, Ogden Services Corp., Ogden Services Company of Pennsylvania, Inc., and Ogden Aviation Services Company of New York, Inc., are not involved in this appeal. . We further note with interest the policy considerations behind the Restatement (Third) of Torts: Products Liability § 12, "Liability of Successor for Harm Caused by Defective Products Sold Commercially by Predecessor”: A successor corporation or other business entity that acquires assets of a predecessor corporation or other business entity is subject to liability for harm to persons or property caused by a defective product sold or otherwise distributed commercially by the predecessor if the acquisition: (a) is accompanied by an agreement for the successor to assume such liability; or (b) results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor; or (c) constitutes a consolidation or merger with the predecessor; or (d) results in the successor becoming a continuation of the predecessor. Section 12 of the Restatement Third provides that there should be no successor products liability except in the four enumerated situations. This type of restriction on products liability takes into account the economic benefits of ending liability once a manufacturer sells its assets to a successor. See Michael D. Green, Fairness and Successor Liability: The Limits of the Common Law Process, KAN.J.L. & PUB.POL’Y, Fall 1998, at 119-121 (discussing same). . This argument by appellees is particularly specious given the fact that the claims for strict liability and breach of warranty were not specifically identified as such either, and appellees did not raise that as a reason for granting summary judgment or dismissing those claims. Obviously, the averments of the complaint made out claims for strict liability and breach of warranty that were readily interpreted as such by appellees, even though they were not so titled.

LEADBETTER, Judge. Anthony R. and Dolores Scalise appeal from the order of the Court of Common Pleas of Allegheny County that affirms the decision of the Zoning Hearing Board of the Borough of West Mifflin (ZHB). The ZHB granted the Sealises’ a variance to permit their tenant to store pool supplies and accessories. The Sealises object to the limited scope and conditions attached to the variance. Since 1969, the Sealises have owned a lot at 1501 Sylvan Avenue, in the R-2 Medium Density Residential District. On the lot there currently exists a 17,000 square-foot building. At the time they purchased the property, it was being used for the outdoor storage of carnival and other commercial/industrial equipment. From 1971 until 1994, the Sealises operated a sheet metal shop constructing HVAC duct-work. They operated their business pursuant to a variance granted in 1971 permitting use of the site for a sheet metal shop and construction of a building therefore. An additional variance granted in 1988 permitted construction of an addition to the building. In 1994, the Sealises ceased operating their business at the site and since that time have periodically leased the site to a variety of different businesses. At present, the Sealises lease the building to Aqua Pool Company. Aqua Pool uses a portion of the building to store pool equipment and accessories. In addition, Rycon Construction uses a portion of the building for temporary storage of auditorium seats while Rycon makes repairs at the local high school. In light of Aqua Pool’s intention to store materials, the Sealises applied for a certificate of occupancy for “storage,” which the zoning officer denied "on the ground that the ordinance does not permit storage/warehouse in the R-2 District. The Sealises appealed the denial of the certificate contending before the ZHB that the variances granted in 1971 and 1988, as well as certificates of occupancy issued during the time the Sealises fabricated HVAC ducts, created a vested right to a non-conforming use of the property for “a fabricating shop, offices, storage warehouse, garage and related commercial/light industrial uses.” The ZHB rejected this contention and found that the 1971 and 1988 variances granted a limited authorization for a sheet metal fabrication shop with indoor storage for the Sealises’ own materials and maintenance of their vehicles. Consequently, the use by Aqua Pool required a new variance, which the ZHB granted with limitations that confined the use to storage, allowed loading and unloading only between 8:00 a.m. and 6:00 p.m., Monday through Saturday, and specifically prohibited sales, manufacturing, or construction activities. The Sealises appealed to the court of common pleas, which affirmed and adopted the findings and conclusions of the ZHB. Subsequently, the Sealises filed the present appeal in which they contend that the ZHB erred in failing to direct the issuance of the certificate of occupancy based on their tenant’s entitlement to engage in a broad range of unspecified commercial/light industrial uses. The Sealises argue that a certificate of occupancy for use by Aqua Pool cannot be denied because the 1971 variance, as well as the certificates of occupancy issued in 1972,1977 and 1984, established their right to any non-conforming use sufficiently sim ilar to the sheet metal shop and associated storage. The Scalises also contend that their right to maintain a non-conforming use cannot be abrogated or limited by the imposition of restrictions such as those the ZHB attached to the variance permitting pool equipment storage. Initially, it is to be noted that the ZHB did not find that the Scalises had any rights arising from the existence of a preexisting non-conforming use, and there is no evidentiary support for such an assertion. Hence, the doctrines protecting a pre-existing non-conformity and allowing for its natural expansion do not apply to this case. See Schaffer v. Zoning Hearing Bd., 32 Pa.Cmwlth. 261, 378 A.2d 1054, 1056 (1977). A pre-existing non-conforming use arises when a lawful existing use is subsequently barred by a change in the zoning ordinance. See Haller Baking Company’s Appeal, 295 Pa. 257, 145 A. 77 (1928). “The protected status accorded non-conforming uses or buddings is bottomed on the belief that in many instances a retroactive enforcement of zoning would have such severe effects on the owner that it would be an impermissible ‘taking’ in the absence of compensation.” Ryan, Pennsylvania Zoning Law and Practice, § 7.1.3 (1981), citing Hanna v. Board of Adjustment, 408 Pa. 306, 183 A.2d 539 (1962). It is axiomatic that the right to maintain a pre-existing non-conformity extends only to uses that were legal when they came into existence. The enactment of a new ordinance cannot have the effect of protecting a pre-existing illegality. The burden of proving a pre-existing non-conformirig use is on the property owner making the assertion. Appeal of Lester M. Prange, Inc., 166 Pa.Cmwlth. 626, 647 A.2d 279, 281 (1994). Consequently, the Scalises had the burden of proving that the commercial storage use existing on the property when they purchased it in 1969 was a lawful use that predated the enactment of the ordinance which zoned the site for residential use. At the ZHB hearing, they failed to sustain their burden. In opening remarks, the Scalises’ attorney said that prior to 1969 the site was used for “outdoor storage of carnival equipment and other types of industrial-type equipment.” R.R. 24. (Mark Scalise later testified that his attorney’s statements were accurate.) Anthony Scalise testified that the equipment was stored on the property by “squatters” whom the Scalises’ predecessors had tried to evict for “[probably] twenty years.” R.R. 71-72. However, it is not enough to show that a non-conforming use existed on the site at the time of purchase. It must be shown that the non-conformity came into existence legally and predated a change in zoning that rendered it nonconforming. Here, there is no evidence in the record as to when the site was first .zoned residential, or precisely when the junkyard/storage use came into existence. Moreover, the only evidence on the point strongly suggests that the equipment storage use was unlawful. The Scalises also argue that they derive rights generally associated with a pre-ex-isting non-conforming use by virtue of the certificates of occupancy issued in 1972, 1977 and 1984, which documented their sheet metal shop with associated storage and office for HVAC contracting as an authorized non-conforming use. This argument misconstrues the purpose and effect of the certificates of occupancy and equates “pre-existing non-conformity” with the non-conformity that arises where a variance is granted. The certificates neither create a pre-existing non-conforming use nor are they sufficient to prove that one existed. The certificates serve only to document the continued presence of an authorized use other than one permitted under the ordinance by-right, i.e., non-conformity in a more generalized sense. The Scalises’ entitlement to use the property in a manner other than that permitted by the ordinance arose by virtue of the 1971 use variance, as expanded by the variance issued in 1988. It is true, as the Scalises assert, that the right to use in conformance with these variances runs with the land, insofar as it is not a right limited to only the Scalises. See Aquaro v. Zoning Bd. of Adjustment, 673 A.2d 1055, 1060 n. 12 (Pa.Cmwlth.1996). It is also generally true that municipalities do not have the power to compel a change in the nature of an existing lawful use of property. PA Northwestern Distrib., Inc. v. Zoning Hearing Bd., 526 Pa. 186, 192, 584 A.2d 1372, 1375 (1991) (stating general principle in the context of a case involving pre-existing non-conforming use). However, the ZHB did not rule that the Scalises’ successors or lessees could not use the property in the manner allowed by the 1971/88 variances and the corresponding certificates of occupancy, but rather that the proposed use did not fit within their scope. We agree. A variance is, or should be, a fairly narrowly tailored cure for a site-specific hardship. See Section 910.2(a)(5) of the Municipalities Planning Code (MPC), 53 P.S. § 10910.2(a)(5) (stating that, where authorized, variance will represent the minimum that will afford relief). The reason for limiting the relief available by way of a variance derives from the very nature of the power to grant site-specific relief from legislation. In his treatise, Ryan explains: The modification of a zoning ordinance by the issuance of a variance is itself a form of legislative power: H.A. Steen Ind., Inc., v. Cavanaugh, 430 Pa. 10, 17, 241 A.2d 771, 775 (1968). While the ordinance reflects legislation in its most common form — the creation of rules of general application - a variance is a specialized form of legislation, directed at the specific property involved. The courts have long recognized that unlimited use of the variance power would swallow the entire legislative power and therefore generally have refused to permit its use as a substitute for rezoning: see O’Neill v. Zoning Board of Adjust, 434 Pa. 331, 254 A.2d 12 (1969). Most of the rules which limit variances are designed to keep the variance power from growing to a general legislative power. This is the central problem in variance law. It is reflected in the concept that the hardship which justifies a variance must not be merely that hardship which results of necessity from a valid zoning regulation; in the requirement that a property be “uniquely” affected in order to justify a variance; and in the rule that a zoning board has no authority to grant a variance affecting too large a tract of land. 1 Ryan, Pennsylvania Law and Practice, § 6.1.3 (1981). As Ryan further recognizes, “A corollary to the concept that variances cannot be used to achieve general legislative solutions of zoning problems is the rale that the issuance of a variance permits only the act specifically authorized.” Id. at § 6.1.4. Hence, a use permitted by variance “is not one upon which a right of extension may be erected as though it were a [pre-existing] non-conforming use.” Pierorazio Appeal, 53 Pa.Cmwlth. 593, 419 A.2d 221, 222 (1980). See also Kensington South Neighborhood Advisory Council v. Zoning Bd. of Adjustment, 80 Pa.Cmwlth. 546, 471 A.2d 1317, 1320 (1984). Alterations in a use granted by variance require further action by the zoning authorities. Kensington, 471 A.2d at 1320. The ZHB’s finding that the 1971/88 variances were limited to the operations of a sheet metal shop, the indoor storage of the materials used in the sheet metal business and maintenance qf that business’ vehicles is fully supported by the plain language of those variances. Thus, the ZHB properly proceeded to consider the Scahses’ alternative request for a new variance. In considering the application for a new variance to allow use by Aqua Pool, the ZHB properly limited the scope of the use to the minimum necessary to afford relief from the hardship imposed by strict adherence to the ordinance. There is no merit to the Scahses’ contention that they should have been granted a broad variance for any commercial or light industrial use. Their right is to variance relief that affords them reasonable use of their property within the limitations imposed both by the nature of the variance power afforded to the ZHB and by Section 910.2(a)(5) of the MPC, i.e., “the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.” There is also no merit to their argument that the ZHB erred in imposing conditions on the variance granted. Section 910.2(b) of the MPC, 53 P.S. § 10910.2(b), authorizes the attachment of reasonable conditions to a variance. See also R & L Marino Bros., Inc. v. Zoning Hearing Bd., 49 Pa.Cmwlth. 267, 412 A.2d 163, 166 (1980). In light of the testimony at the hearing, we find the restrictions to have been reasonable and appellants do not claim otherwise. They claim instead that the restrictions imposed under the current variance for Aqua Pool’s use deprives them of the full scope of the 1971 variance. However, once it is determined that the proposed use requires a new variance, whether conditions should be imposed upon that new variance must be determined based upon the circumstances surrounding the newly allowed use. It is of no moment whatsoever that a prior variance which allowed a different use may have had fewer or different restrictions. Accordingly, we affirm. ORDER AND NOW, this 21st day of July, 2000, the order of the Court of Common Pleas of Allegheny County in the above captioned matter is hereby affirmed. . Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10101 - 11202. Section 910.2 was added by the Act of December 21, 1988, P.L. 1329. . The 1988 variance specifically provides "That the use of the subject property be specifically limited to indoor storage of [the Scal-ises'] own materials and the maintenance of [the Scalises’] own vehicles...”

FRIEDMAN, Judge. Margaret and Joseph Dixon (together, the Dixons) appeal from an order of the Court of Common Pleas of Bucks County (trial court) fining them $10 a day for violating the zoning ordinance of Lower Southampton Township (Township). We affirm. The Dixons own and reside in a house in the Township. (Trial court op. at 1.) Joseph Dixon also owns eight classic Ford automobiles (years 1954-1976), which he stores on his property. (N.T. at 40; R.R. at 138a.) As a result, on September 16, 1996, the Township issued a notice (Zoning Violation Notice) charging the Dixons with violating chapter 27 section 2015 part 3 of the Township’s zoning ordinance, which makes it “unlawful for any person to use premises in a residential district for a ... warehouse.” (R.R. at 159a.) The Zoning Violation Notice gave the Dixons thirty days to appeal the alleged violation to the Township zoning hearing board (ZHB). (R.R. at 161a.) Although the Dixons received a copy of the Zoning Violation Notice, they did not appeal to the ZHB. (N.T. at 15, 43; R.R. at 113a, 141a.) Pursuant to section 617.2 of the Pennsylvania Municipalities Planning Code (MPC), the Township brought a civil enforcement proceeding against the Dixons before a district justice, seeking assessment of fines and penalties. (Trial court op. at 1.) On April 11, 1997, the district justice found in favor of the Township and assessed a $500 fine, as well as $34.50 for court costs, against the Dixons. (O.R.# 1.) The Dixons appealed to the trial court, and the Township filed a civil complaint seeking a fine of $500 per day from September 16, 1996. (R.R. at 5a, ¶ 12.) In response, the Dixons asserted that, despite their failure to appeal the Zoning Violation Notice to the ZHB, they were entitled to litigate the validity of the Zoning Violation Notice before the trial court. The Dixons claimed that they did not appeal to the ZHB from the Zoning Violation Notice because the Township requires an exorbitant and nonrefundable filing fee for such appeals. The Dixons further claimed that, by charging this filing fee, the Township violated Article I, section 11 of the Pennsylvania Constitution and the Due Process and Equal Protection Clauses of the Fifth and Fourteenth Amendments to the United States Constitution. (R.R. 11a, ¶ 18.) Without addressing the Dixons’ claim relating to the unconstitutionality of the Township’s filing fees, the trial court ruled in favor of the Township but reduced the fine from $500 to $10 per day from the date of its order. (Trial court op. at 3.) In deciding against the Dixons, the trial court relied upon City of Erie v. Freitus, 681 A.2d 840 (Pa.Cmwlth.1996), appeal denied, 547 Pa. 738, 690 A.2d 238 (1997), and Johnston v. Upper Macungie Township, 162 Pa.Cmwlth. 170, 638 A.2d 408 (1994), for the proposition that the Dixons’ failure to appeal the Zoning Violation Notice to the ZHB restricted the trial court’s inquiry to the appropriateness of the fines imposed. (Trial court op. at 2.) On appeal, the Dixons argue that the trial court erred in failing to address their argument that the Township’s filing fees are unconstitutional. They contend that the trial court should have found that the filing fees violate the state and federal constitutions and that, as a result, the Dixons were not required to appeal the Township’s Zoning Violation Notice to the ZHB. Thus, they assert that the trial court committed an error of law in holding that the Dixons were barred from litigating the underlying zoning violation in the trial court. We disagree. Rather, we conclude that the Dixons waived both their right to argue that the Township’s filing fees are unconstitutional and their right to litigate the underlying zoning violation due to their failure to raise those issues before the ZHB. See Township of Penn v. Seymour, 708 A.2d 861 (Pa.Cmwlth.), appeal denied, 555 Pa. 749, 725 A.2d 1224 (1998). In Township of Penn, the township issued a zoning ordinance violation notice to a landowner, and the landowner did not appeal to the zoning hearing board. Thereafter, the township filed a zoning enforcement complaint against the landowner with a district justice, who entered judgment against the landowner. On appeal to the trial court, the landowner challenged the constitutionality of the ordinance. On further appeal to this court, we determined that the landowner’s failure to challenge the constitutionality of the ordinance before the zoning hearing board rendered “the violation notice unassailable.” Id. at 864. The same result must follow here. In this case, the ZHB was in the best position to first consider whether the Township’s fee was unconstitutional, excessive or unreasonable. Indeed, as noted in Sea and Sage Audubon Society, Inc. v. Planning Commission of City of Anaheim, 34 Cal.3d 412, 421, 194 Cal.Rptr. 357, 668 P.2d 664, 669 (1983), whether a filing fee is excessive or unreasonable “cannot properly be resolved in the abstract.” In Sea and Sage Audubon Society, the California Supreme Court explained that the failure of the appellant to develop an evidentiary record precluded the supreme court from being able to determine (1) the full range or nature of the administrative services and functions properly covered by the filing fee, (2) the reasonable cost of such services and functions or (3) whether the fee structure bears a reasonable relationship to such costs. Similarly, here, the Dixons’ failure to raise this issue before the ZHB has resulted in the lack of an evidentiary record with respect to the reasonableness of the Township’s filing fees. We note that the Dixons were not without recourse. They could have filed their appeal with the ZHB and paid the filing fee under protest. Alternatively, they could have submitted their appeal to the ZHB without the filing fee by setting forth their assertion that the fee was unconstitutional or unreasonable under the MPC. Had the ZHB refused to accept their appeal without the filing fee, the Dixons could have appealed the reasonableness of the filing fee to the trial court. In light of these options, we cannot permit the Dixons to completely bypass the ZHB. To hold otherwise would deprive the ZHB of any opportunity to consider, in the first instance, a challenge to its zoning ordinance and would encourage other landowners to forego appeals to their zoning hearing boards by raising the unreasonableness of the municipality’s filing fee in response to enforcement proceedings before a district justice or trial court. We refuse to do so. The Dixons also argue, relying upon Commonwealth v. Marcus, 690 A.2d 842 (Pa.Cmwlth.1997), that landowners in zoning enforcement proceedings should be afforded the same protection as criminal defendants under the Pennsylvania Rules of Criminal Procedure and, thus, should not be required to pay “any filing fees” to assert a defense. (Dixon’s brief at 14) (emphasis original.) Again, we disagree. In Marcus, this court did state that defendants in civil zoning enforcement proceedings are entitled to “the same protection as ... criminal defendants under the Pennsylvania Rules of Criminal Procedure.” Marcus, 690 A.2d at 845 n. 5. However, approximately a year after our decision in Marcus, in Town of McCandless v. Bellisario, 551 Pa. 83, 709 A.2d 379 (1998), our supreme court made clear that the Rules of Criminal Procedure apply only to those cases enforcing zoning ordinance violations where imprisonment is a possible penalty. Our supreme court explained: While the enforcement of municipal ordinances that provide for imprisonment upon conviction or failure to pay afine or penalty must follow the Rules of Criminal Procedure, the same is not true for municipal ordinances that do not provide for imprisonment upon conviction or failure to pay a fine or penalty, which, by definition, are not Penal Laws, and are therefore not included in the definition of “criminal proceedings.” Pa. R.Crim.P. 3. Id. at 87, 709 A.2d at 381. Thus, our supreme court held: “The higher degree of protection provided by the Rules of Criminal Procedure does not apply to municipal ordinance enforcement actions where imprisonment is not a remedy for a conviction or failure to pay a fine.” Id. Because section 617.2 of the MPC, 53 P.S. § 10617.2, only provides for the imposition of a fine, and not imprisonment, for violation of the provisions of any zoning ordinance, our supreme court concluded that the Rides of Criminal Procedure were inapplicable to enforcement proceedings brought under that section. Id. Accordingly, the Dixons are not entitled to the same protections or procedures as criminal defendants. Rather, the rules of civil procedure apply to actions brought by municipalities to enforce zoning violation notices pursuant to section 617.2 of the MPC, 53 P.S. § 10617.2, before the courts of common pleas. For the foregoing reasons, we affirm the order of the trial court. ORDER AND NOW, this 17th day of July, 2000, the order of the Court of Common Pleas of Bucks County, dated April 5, 1999, is hereby affirmed. . Act of July 31, 1968, P.L. 805, added by section 62 of the Act of Dec. 21, 1988, P.L. 1329, as amended, 53 P.S. § 10617.2. Section 617.2(a) provides in pertinent part: Any person, partnership or corporation who or which has violated or permitted the violation of the provisions of any zoning ordinance enacted under this act or prior enabling laws shall, upon being found liable therefor in a civil enforcement proceeding commenced by a municipality, pay a judgment of not more than $500 plus all court costs, including reasonable attorney fees incurred by a municipality as a result thereof. No judgment shall commence or be imposed, levied or payable until the date of the determination of a violation by the district justice. If the defendant neither pays nor timely appeals the judgment, the municipality may enforce the judgment pursuant to the applicable rules of civil procedure. Each day that a violation continues shall constitute a separate violation, unless the district justice determining that there has been a violation further determines that there was a good faith basis for the person, partnership or corporation violating the ordinance to have believed that there was no such violation, in which event there shall be deemed to have been only one such violation until the fifth day following the date of the determination of a violation by the district justice and thereafter each day that a violation continues shall constitute a separate violation. . The basic filing fee is $625 plus an escrow deposit of $100. (R.R. at 163a.) Constitutional challenges require a filing fee of $1,500, plus an escrow deposit of $3,500. (R.R. at 163a.) The $1,500 filing fee covers "expenses associated with one two-hour evening meeting” before the ZHB. (R.R. at 163a.) The $3,500 escrow deposit is to cover expenses of "additional meetings or cost of other services deemed necessary by the [ZHB].” (R.R. at 163a.) If the escrow deposit is insufficient, the applicant is required to pay additional sums, but any surplus escrow funds are refunded to the applicant at the conclusion of the case. (R.R. at 163a.) Although the Dixons argue that they would have to pay the higher fees chargeable for raising a constitutional challenge, they did not raise a constitutional challenge to the zoning ordinance violation. Rather, their constitutional challenge is limited to the reasonableness of the filing fees. Thus, the Township argues that the Dixons would have been required to expend only the $625 filing fee plus the $100 escrow deposit. (See Township’s brief at 9.) However, had the Dixons asserted the challenge to the constitutionality of the zoning ordinance’s fee provisions, it appears that they could have been required to pay the higher filing fee and escrow deposit associated with constitutional challenges. . During the time period in which the Dixons could have appealed to the ZHB, section 616.1 of the MPC, added by section 60 of the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10616.1, did not provide for a refund of the filing fee to landowners who prevailed. However, the MPC was subsequently amended on December 18, 1996 to provide for such a refund. See section 2 of the Act of Dec. 18, 1996, P.L. 1102. Section 616.1(e) of the MPC, 53 P.S. § 10616.1(e), now provides: "Any filing fee paid by a party to appeal an enforcement notice to the zoning hearing board shall be returned to the appealing party by the municipality if the zoning hearing board or any court in a subsequent appeal rules in the appealing party’s favor.” . Article I, section 11 of the Pennsylvania Constitution provides that "[a]ll courts shall be open; and every man for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law, and right and justice administered without sale....” . "Meaningful access to the courts is a fundamental constitutional right, grounded in the First Amendment right to petition and the Fifth and Fourteenth Amendment due process clauses.” Johnson v. Atkins, 999 F.2d 99, 100 (5th Cir.1993) (quoting Chrissy F. v. Mississippi Department of Public Welfare, 925 F.2d 844, 851 (5th Cir.1991)). In Johnson, the court ruled that a $600 fee for a prisoner to file a civil rights suit did not unconstitutionally interfere with his meaningful access to the courts because the prisoner did not claim that he was indigent or that he could not afford court costs. Similarly, here, the Dixons have not claimed indigence or inability to pay the fee. (See Dixons' reply brief at 8.) In Johnson, the court also rejected the prisoner’s equal protection claim, explaining that the fees were determined by a schedule applicable to all litigants and that it is not the court’s role to say that the fees are unequal because a claim is made that they are unfair. Here, we note that the Dixons have not claimed that the Township’s fee schedule was not equally applicable to all persons. . In City of Erie and Johnston, we held that, if a landowner fails to appeal an ordinance violation notice to the zoning hearing board, the violation is conclusively established and is rendered binding and unassailable in further proceedings. . Generally, our scope of review in zoning cases is whether the zoning hearing board committed an abuse of discretion or an error of law. See Baker v. Chartiers Township Zoning Hearing Board, 677 A.2d 1274 (Pa.Cmwlth.1996), appeal denied, 547 Pa. 738, 690 A.2d 238 (1997). However, here, where there was no appeal to the ZHB, our scope of review is whether the trial court committed an abuse of discretion or an error of law. See Commonwealth v. Marcus, 690 A.2d 842 (Pa.Cmwlth.1997). . In Township of Penn, the landowner challenged an ordinance containing a substantive requirement. The fact that the Dixons challenged an ordinance containing a procedural requirement, however, does not compel a different result. . Zoning hearing boards regularly consider constitutional challenges to the validity of their municipalities' ordinances. .Section 617.3(e) of the MPC, added by section 62 of the Act of Dec. 21, 1988, P.L. 1329, 53 P.S. § 10617.3(e), permits municipalities to "prescribe reasonable fees with respect to the administration of a zoning ordinance and with respect to hearings before the zoning hearing board. Fees for these hearings may include compensation for the secretary and members of the zoning hearing board, notice and advertising costs and necessary administrative overhead connected with the hearing. The costs, however, shall not include legal expenses of the zoning hearing board, expenses for engineering, architectural or other technical consultants or expert witness costs.” We note that the Dixons have not argued that the filing fees are unreasonable under the MPC (see, e.g., Golla v. Hopewell Township Board of Supervisors, 69 Pa.Cmwlth. 377, 452 A.2d 273 (1982)) but only that the filing fees are unconstitutional. However, the Dixons rely on cases addressing the reasonableness of filing fees under the MPC in support of their argument that the filing fees are unconstitutional. (See Dixons' brief at 15-16.) . Some confusion followed the 1988 amendments to the MPC. Prior to that time, "municipalities enforced zoning ordinances by instituting a summary criminal action before a district justice. The district justice’s decision could be appealed to a common pleas court, which heard the case de novo. In 1988, however, the General Assembly changed this procedure.” Township of Penn, 708 A.2d at 863 (citations omitted). . In Township of Penn, 708 A.2d at 863-64 (citations omitted) (footnote omitted) (emphasis added), we articulated the current procedure leading up to the filing of enforcement proceedings in the courts of common pleas: Zoning enforcement proceedings are now commenced by a municipality sending an enforcement notice to the landowner in accordance with Section 616.1 of the [MPC]. When a landowner has been given notice of a zoning violation under Section 616.1 of the MPC[, the] landowner can contest the asserted violations only by way of appeal to the municipality’s zoning hearing board and cannot merely defend the charge when the municipality seeks ordinance violation fines before a district justice.... [Z]oning hearing boards have exclusive jurisdiction over ordinance violation determinations, and, therefore, a landowner’s failure to appeal a Section 616.1 zoning violation notice to the zoning hearing board is fatal and results in a conclusive determination of guilt for which a district justice may impose sanctions under Section 617.2 of the MPC. For this reason, ... a district justice may not conduct a de novo review of the merits of a violation notice where the landowner has not gone first to the zoning hearing board; rather in that situation, upon the municipality's showing that no appeal was taken by the landowner, a district justice is limited to imposing a fine pursuant to Section 617.2 of the MPC....

McCLOSKEY, Senior Judge. Presently before this Court are the consolidated appeals of Judith Galloway (Claimant) and the Pennsylvania State Police/State Workers’ Insurance Fund (Employer) from a decision of the Workers’ Compensation Appeal Board (Board) which affirmed in part and reversed in part a decision of a Workers’ Compensation Judge (WCJ). For the reasons which follow, we affirm. The record reflects that in March of 1982, Claimant sustained a work-related injury in the nature of severe depression during the course of her employment with Employer. Pursuant to a decision of a WCJ, Claimant began receiving benefits. Thereafter, in February of 1997, Claimant filed, a penalty petition, alleging that Employer had unilaterally terminated her benefits. Employer denied the allegations and a hearing was held before a WCJ. At the hearing, counsel for Employer indicated that Claimant’s benefits were suspended based on her failure to return a properly completed LIBC-760 Form. Specifically, Claimant refused to reveal her residential address. In response, Claimant’s counsel stated that Claimant’s compensation checks had been forwarded to his address in Pittsburgh, Pennsylvania pursuant to a Power of Attorney. Counsel indicated that he was acting in a fiduciary capacity for Claimant, that Claimant wished for this procedure to continue and that Claimant did not want to disclose her address to Employer. The WCJ then made the following finding: This judge finds that although Claimant has provided her counsel with Power of Attorney to obtain her checks, this method does not permit compliance by the Claimant with the Act. Furthermore, Claimant has not submitted any legitimate reason for the necessity of the Power of Attorney. Therefore, this judge finds that until Claimant is in compliance with the Act/[ ] specifically Claimant submits her residential address to the Employer/Carrier, Employer has not violated the Act. This judge notes that Claimant’s benefits should be reinstated once she provides her current residential address to the Employer/Carrier. However, anything other than the specific residential address is not acceptable. (WCJ’s opinion at page 4, emphasis in original). Claimant appealed and the Board affirmed in part and reversed in part. Citing Bureau Rule 121.25, the Board noted that an attorney can receive compensation checks if that attorney is acting in a fiduciary capacity. Because Claimant’s counsel was provided with a Power of Attorney allowing him to receive Claimant’s checks, the Board concluded that a fiduciary capacity existed and that Claimant’s counsel could properly receive the checks. The Board went on to state: Based upon the circumstances of this case, specifically Claimant’s failure to supply a residential address to [Employer], we do not believe the Judge abused her discretion in denying penalties in this case. However, we believe she did err in suspending Claimant’s benefits until such time as she would provide a residential address as there is no support for such suspension contained within the language of the Act. Thus, we will reverse the suspension of Claimant’s benefits. (Board opinion at page 4). The Board stated, however, that the WCJ was correct in ordering Claimant to provide her residential address. The Board emphasized that it is necessary for Employer to know where Claimant lives in order to provide job referrals, to facilitate management of Claimant’s claim and, finally, to investigate Claimant’s level of impairment in order to avoid fraud. Hence, the Board determined that while the WCJ erred in allowing the suspension of Claimant’s benefits until such time as she provided her current residential address, she was correct in denying penalties. The Board then admonished Claimant for her behavior, noting that failure to provide such information would place her in direct violation of a WCJ’s order and subject her to further action. Both Claimant and Employer now appeal to this Court. In essence, Claimant argues that there is no specific requirement under the Act that she provide her residential address; thus, there was no basis under the Act for Employer’s unilateral suspension of benefits and she is therefore entitled to penalties. At the center of this dispute is the LIBC-760 Form. Employer asserts that when our Legislature passed Act 57, it created new reporting requirements for employees who file for or are receiving workers’ compensation benefits. It was an effort, Employer argues, to facilitate management of claims and to reduce fraud within the workers’ compensation system. Part of these reporting requirements was the obligation to complete the LIBC-760 Form. Employer contends that by failing to completely fill out the Form, Claimant is deliberately attempting to obstruct Employer from acquiring information necessary for the administration of her claim and the determination of whether she is entitled to compensation. See Section 311.1(a)(7) of Act 57. Further, Claimant is in violation of Section 311.1(c) of Act 57 which imposes an obligation of cooperation with the insurer in an investigation regarding employment or physical condition. Additionally, Employer notes, Section 311.1(e) of Act 57 specifically provides that a claimant has a continuing obligation to supply relevant information. As Claimant’s residential address is vital to Employer’s ability to continue to monitor her status and entitlement to benefits, Ern- ployer argues that it properly suspended her benefits pursuant to Section 311.1 (g) of Act 57 (permitting the suspension of compensation benefits until a completed verification form is returned). In response, Claimant asserts that the Act is silent as to whether the address provided must be “the place where the employee is physically present.” (Claimant’s brief at page 15). Claimant goes on to state, “[T]here is nothing to prevent an employee from entering a P.O. Box as her address ... And, in this respect, there is nothing which prevents [Claimant] from using her attorney’s address as the address at which she wishes to receive her mail.” (Id. at pages 15-16). With regard to Section 311.1(e) of Act 57, relating to the accurate completion of verification forms, Claimant asserts that the focus is a claimant’s change in condition or employment, not a claimant’s residential address. As for the penalty provisions in Section 311.1(g) of Act 57, Claimant argues that Employer’s challenge is to the accuracy of the information provided and did not constitute grounds for suspension of her benefits. This Court has recognized that in order for the imposition of penalties to be appropriate, a violation of the Act or of the rules and regulations issued pursuant to the Act must appear in the record. Moore v. Workmen’s Compensation Appeal Board (Reading Paperboard Corp.), 676 A.2d 690 (Pa.Cmwlth.1996), petition for allowance of appeal denied, 546 Pa. 658, 684 A.2d 559 (1996); Glagola v. Workmen’s Compensation Appeal Board, 59 Pa.Cmwlth. 80, 428 A.2d 1016 (1981). However, even if a violation of the Act is apparent on the record, the imposition of a penalty is not required; rather, the imposition of a penalty is at the discretion of the WCJ. Moore. Here, we are asked to decide whether the Board properly affirmed the WCJ’s decision not to award penalties. The record indicates that Employer unilaterally suspended Claimant’s benefits when she failed to disclose her address on the LIBC-760 Form. Hence, we must determine whether Employer’s reliance on Section 311.1(g) of Act 57, was proper and, in turn, whether Employer violated the Act such that penalties are warranted. When interpreting a statute, a court must ascertain and effectuate the intent of the legislature and give full effect to each provision of the statute if at all possible. Commonwealth of Pennsylvania v. Lopez, 444 Pa.Super. 206, 663 A.2d 746 (1995)(citing 1 Pa.C.S. § 1921(a)). Where the words of a statute are clear and free from ambiguity the legislative intent is to be gleaned from those very words. Pennsylvania Financial Responsibility Assigned Claims Plan v. English, 541 Pa. 424, 664 A.2d 84 (1995). Further, when construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections because there is a presumption that in , drafting the statute, the General Assembly intended the entire statute to be effective. Lopez, (citing 1 Pa.C.S. § 1922). With these rules of statutory construction in mind, we have reviewed Section 311.1 of Act 57. It is apparent that this Section of Act 57 is aimed at the reporting of employment, self-employment and physical condition by claimants at the request of employers. While Section 311.1(g) of Act 57 does permit the suspension of benefits by an employer in the event a completed verification is not returned by a claimant, we do not believe that the Legislature intended for suspensions to occur in the event a residential address is not listed. In other words, the plain meaning of the Section reflects that suspensions may occur if a verification is lacking information which the Section intends to acquire; namely, information re garding employment, self-employment and/or physical condition. Nevertheless, we conclude that the Board did not err when it affirmed the WCJ’s refusal to award penalties. While we do not countenance Employer’s actions and cannot say that such behavior will not be penalized in the future, we do not believe that its actions warrant our incursion on a discretionary function of the WCJ. Accordingly, the order of the Board is affirmed. ORDER AND NOW, this 4th day of August, 2000, the order of the Workers’ Compensation Appeal Board is hereby affirmed. . The parties do not dispute that as an undercover police officer, Claimant's mental problems resulted from, inter alia, fear for her personal safety because she believed that her cover had been "compromised.” (Claimant’s brief at page 5). . The Form is captioned "EMPLOYEE VERIFICATION OF EMPLOYMENT, SELF-EMPLOYMENT OR CHANGE IN PHYSICAL CONDITION” and is forwarded by employers to claimants in an effort to receive updated information regarding a claimant’s employment and physical condition. Included on the form is a space for claimants to note their address. See R.R. at 28a. . Workers’ Compensation Act, Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4; 2501-2626. . 34 Pa.Code § 121.25. This Rule provides in pertinent part; (a) In no event may a claimant’s check for workmen’s compensation or occupational disease compensation be payable to, or delivered to, any attorney, except where the attorney is the administrator or executor of the claimant’s estate, a court appointed trustee, a court appointed guardian, or acting in some other fiduciary capacity. . Our scope of review in a workers’ compensation appeal is limited to determining whether an error of law was committed, constitutional rights were violated, or whether necessary findings of fact are supported by substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704. Russell v. Workmen's Compensation Appeal Board (Volkswagen of America), 121 Pa.Cmwlth. 436, 550 A.2d 1364 (1988). . Act of June 24, 1996, P.L. 350. . Specifically, Section 311.1 of Act 57, 77 P.S. § 631.1, provides in pertinent part: (a) If an employe files a petition seeking compensation under section 306(a) or (b) or is receiving compensation under section 306(a) or (b), the employe shall report, in writing, to the insurer the following: (1) If the employe has become or is employed or self-employed in any capacity. (2) Any wages from such employment or self-employment. (3) The name and address of the employer. (4) The amount of wages from such employment or self-employment. (5) The dates of such employment or self-employment. (6) The nature and scope of such employment or self-employment. (7) Any other information which is relevant in determining the entitlement to or amount of compensation. (b) The report referred to in clause (a) must be made as soon as possible but no later than thirty days after such employment or self-employment occurs. ie) An employe is obligated to cooperate with the insurer in an investigation of employment, self-employment, wages and physical condition. (d) If an employe files a petition seeking compensation under section 306(a) or (b) or is receiving compensation under section 306(a) or (b), the insurer may submit a verification form to the employe either by mail or in person. The form shall request verification by the employe that the employe’s status regarding the entitlement to receive compensation has not changed and a notation of any changes of which the employe is aware at the time the employe completes the verification, including employment, self-employment, wages and change in physical condition. ... (e) The employe is obligated to complete accurately the verification form and return it to the insurer within thirty days of receipt by the employe of the form. (g) If the employe fails to return the completed verification form within thirty days, the insurer is permitted to suspend compensation until the completed verification form is returned. The verification form utilized by the insurer shall clearly provide notice to the employe that failure to complete the form within thirty days may result in a suspension of compensation payments. .In this regard, Employer emphasizes that the residential address is necessary in order to "determine if there is a need for the initiation of job development efforts, periodic physical or psychological evaluations, as well as a determination as to whether surveillance of the Claimant would be indicated.” (Employer’s brief at page 12). . Perhaps Employer's argument would have been more persuasive if Claimant had not provided any address at which she could be contacted. However, in light of the legally binding Power of Attorney executed between Claimant and her attorney which allows him to transact all business related to her claim, we conclude that Employer's assertions lack merit and that the address provided by Claimant was sufficient.

PELLEGRINI, Judge. The Commonwealth of Pennsylvania, Department of Transportation (Department) appeals from the order of the Court of Common Pleas of Cumberland County (trial court) granting summary judgment to Troy Beam (Beam) and dismissing its complaint to enjoin Beam from operating an unlicensed airport. The Department filed a complaint in equity seeking to enjoin Beam because he was purportedly operating an “airport” without a license as required by 67 Pa. Code § 471.3. Following a hearing on the preliminary injunction, the trial court determined that the area of Beam’s property used as a runway and for housing of his airplane constituted a private airport under the Aviation Code requiring it to be licensed. However, because nowhere in the Aviation Code is the Department given the authority to enjoin the operation of an unlicensed private airport, the trial court concluded that the Department did not have a right to seek an injunction nor did it have the right to grant one and denied its request. On cross-motions for summary judgment, the trial court reiterated that the Department did not have the statutory authority to seek injunctive relief and, therefore, granted summary judgment to Beam and dismissed the Department’s complaint. This appeal followed. The Department contends that the trial court erred in holding that it could not invoke the court’s equity jurisdiction to enjoin the operation of an unlicensed airport because there was no express statutory language granting it authority to seek such relief. In general, a court’s equitable jurisdiction can be inferred under the traditional powers of the court to prevent or restrain “the commission or continuance of acts contrary to law and prejudicial to the interests of the community, or rights of individuals.” Zeigenfuse v. Boltz, 401 Pa. 365, 372, 164 A.2d 663, 667 (1960) (citations omitted); Board of Directors of Palmyra Area School Dist. v. Palmyra Area Educ. Ass’n, 165 Pa.Cmwlth. 137, 644 A.2d 267 (1994). Though a court may have equitable jurisdiction, that does not necessarily mean that it can issue an injunction to enjoin a violation of a statute. For example, in a doctrine akin to equity not being available where there are adequate administrative remedies, equitable relief is not available where the General Assembly has established a statutory scheme for enforcement that does not provide for equitable remedies. In Commonwealth v. Glen Alden Corporation, 418 Pa. 57, 210 A.2d 256 (1965), our Supreme Court addressed whether equity could enjoin a violation of the Air Pollution Control Act of 1960, Act of January 8, 1960, P.L. 2119, 35 P.S. §§ 4001-4015. In holding that equity had no jurisdiction to inquire into a controversy where it would obviate a statutory procedure provided by the legislature for its resolution, it stated: See also City of Philadelphia v. Franklin Smelting and Refining Company, 3 Pa.Cmwlth. 626, 284 A.2d 339 (1971). But we have frequently decided that equity has no jurisdiction to inquire into a controversy where to do so would obviate a statutory procedure provided by the Legislature for its resolution. See, e.g., Taylor v. Moore, 303 Pa. 469, 154 A. 799 (1931). This salutory result is dictated by the Act of March 21, 1806, P.L. 60 558, 4 Sm.L. 326, S 13, 46 P.S. § 156, which provides that ‘[i]n all cases where a remedy is provided, * * * or anything directed to be done by any act or acts of assembly of this commonwealth, the directions of the said acts shall be strictly pursued * * *.’ Accordingly, if the Air Pollution Act, supra, provides a framework for the resolution of the problem involved in Commonwealth’s complaint equity may not inquire into the dispute, notwithstanding the fact that the complaint may state a cause of action in public nuisance, traditionally cognizable in equity. While equity may not be pursued where the General Assembly has provided statutory direction as to the method to be used to enforce the statute, nowhere in the Act is there a statutory procedure that would be obviated; nothing in the Aviation Code provides a specific administrative procedure or makes it an offense for an airport owner not to obtain a license. The question then becomes even though the court is not precluded from exercising its equitable jurisdiction to hear the matter, whether the Department has the authority to bring an equitable action where it is not specifically authorized to do so in the statute that it is charged to enforce. An agency charged with administration of a statute can only act within the strict and exact limits defined in that statute and when seeking to enforce compliance with the statute or regulations, that authority must be explicitly granted. Pennsylvania Human Relations Commission v. St. Joe Minerals Corp., 476 Pa. 302, 382 A.2d 731 (1978); United Artists’ Theater Circuit, Inc. v. City of Philadelphia 535 Pa. 370, 635 A.2d 612 (1993). The authority given by the General Assembly to the Department to carry out its duties is contained in 74 Pa.C.S. § 5301 that gives the Department the specific power to license airports and provides that the Department “shall administer the [Acts] provisions ... and, for that purpose, shall promulgate and enforce regulations as necessary to execute the powers vested in it by this part and other laws relating to aviation, airports and air safety within this Commonwealth.” Assuming that under this grant of power it can give itself the authority to seek injunctive relief, the Department has never implemented that authority by promulgating regulations estab lishing a regulatory enforcement scheme including the ability to seek injunctive relief when an owner refuses to apply for a license. Because the General Assembly has not explicitly given it the power and not having promulgated an implementing regulation giving it the authority to seek injunctive relief, as the trial court found, the Department is precluded from bringing this action. Accordingly, the trial court’s order dismissing the Department’s complaint is affirmed. ORDER AND NOW, this 20th day of June, 2000, the order of the Court of Common Pleas of Cumberland County, entered December 3, 1999, at docket number 99-3121, is affirmed. Judge SMITH dissents. . The Aviation Code, 74 Pa.C.S. § 5102, defines "Airport” as: Any area of land or water which is used, or intended to be used, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended to be used, for airport buildings or air navigation facilities or rights-of-way, together with all airport buildings and facilities thereon. Unless indicated otherwise, airport shall include heliports and public airports. . 67 Pa.Code § 471.3 provides for airport licensing and requires, in relevant part, that "[n]o person may establish, maintain or operate an airport, nor conduct flight operations at an airport, unless authorized to do so by the Bureau.” . Our scope of review of the trial court’s grant of summary judgment is limited to determining whether the court abused its discretion or made errors of law. East Lampeter Township v. County of Lancaster, Human Relations Commission, 744 A.2d 359 (Pa. Cmwlth.2000). A court may grant summary judgment only where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law. Id.., 744 A.2d at 363. . Beam raises in his brief the argument that the trial court erred in concluding that his private airport must be licensed under the Aviation Code and the Department’s regulations. Because of the way we have resolved this case, we need not address that issue. . Act of June 16, 1836, P.L. 784 § 13, paragraph V, made general as to the courts of common pleas throughout the commonwealth by the Act of February 14, 1857, P.L. 39, repealed by the Judiciary Act Repealer Act, Act of April 28, 1978, P.L. 202, 42 P.S. §§ 20001-20004, replaced by 42 Pa.C.S. § 931(a) which now provides in relevant part that: "the courts of common pleas shall have unlimited original jurisdiction of all actions and proceedings, including all actions and proceedings heretofore cognizable by law or usage in the courts of common pleas.” . Glen Alden Corporation, 210 A.2d at 258. In Glen Alden Corporation, the procedure that precluded the court from exercising equity jurisdiction in the Air Pollution Control Act, a detailed administrative compliance scheme.

McCLOSKEY, Senior Judge. Anthony Berry (Berry) petitions for review of a determination of the Pennsylvania Board of Probation and Parole (Board), denying his request for administrative relief from an order of the Board recommitting him as a technical and convicted parole violator to serve a total of twelve months backtime. We affirm. •Berry was originally sentenced in 1992 to a term of imprisonment of one and one-half years to seven years on two counts of delivery of a controlled substance. By order of the Board dated August 30, 1993, Berry was paroled to an approved plan that required him to report regularly to parole supervision staff, to stay within his parole district and not to change his residence without written permission of the parole supervision staff. Additionally, the Board imposed a special condition on Berry’s parole requiring him to submit to urinalysis testing. Berry, however, failed to abide by these conditions. By order of the Board dated February 17, 1994, Berry was declared delinquent effective October 26, 1993. On April 27, 1994, the Duquesne Police Department arrested Berry on charges of criminal homicide. The Board thereafter issued an order dated August 29,1994, detaining Berry pending disposition of these criminal charges. However, these charges were later dropped after the Duquesne Police Department discovered that Berry’s brother, and not Berry, committed the homicide. Nevertheless, by order of the Board dated April 5, 1995, Berry was recommitted as a technical parole violator to serve twelve months backtime for failing to report to parole supervision staff, failing to submit to urinalysis testing, failing to report his arrest, traveling outside the parole district without permission and changing his residence without permission. Berry’s parole violation maximum sentence date was recalculated to September 16, 1999. Berry served his backtime and was paroled a second time on May 10, 1995, under the same conditions as his first parole. Berry, however, again failed to abide by these conditions. Specifically, Berry failed to report to parole supervision staff and failed to submit to urinalysis testing. Hence, the Board issued an order dated May 24, 1995, declaring Berry delinquent effective May 22, 1995. Berry was subsequently recommitted as a technical parole violator to serve twenty-four months back-time as a result of his violations of these conditions. Berry’s parole violation maximum sentence date was recalculated to November 8, 1999. Berry applied for parole in July of 1997, but was refused by the Board as a result of his need for counseling and treatment and his multiple misconducts during recommitment. On March 12, 1998, Berry was paroled for a third time. Berry was subject to conditions similar to those of his first and second paroles. Once again, Berry failed to abide by these conditions and he was declared delinquent effective June 22, 1998, by order of the Board dated August 6, 1998. On September 17, 1998, Berry was arrested again by the Duquesne Police Department on charges of terroristic threats, simple assault and firearms violations. On the same day, the Board issued a warrant to commit and detain Berry. On September 24, 1998, Berry was arrested once more by the Duquesne Police Department on charges of reckless driving, fleeing and eluding police and unauthorized use of a motor vehicle. At a preliminary hearing, these charges were held over for the Court of Common Pleas of Allegheny County, Criminal Division. By order of the Board dated January 11, 1999, Berry was recommitted as a technical parole violator to serve nine months baektime, when available, as a result of his violations of his March 12, 1998, parole conditions. On July 8, 1999, Berry pled nolo contendré to the aforementioned charges of reckless driving, fleeing and eluding police and driving under suspension. Berry was sentenced to time served (four months) plus twenty months probation. He received credit from September 24,1998, to January 24,1999. Berry was returned to the State Correctional Institution at Frackville (SCI-Frackville) after his sentencing on July 8, 1999. On July 27,1999, Berry requested a panel revocation hearing regarding his new conviction. A hearing was held at SCI-Frackville on September 17, 1999. Following the hearing, the Board issued an order dated November 29, 1999, recommitting Berry as both a technical and convicted parole violator to serve a total of twelve months baektime. Berry’s parole violation maximum sentence date was recalculated to March 25, 2001. Berry thereafter filed a request for administrative relief alleging that the Board erred by failing to provide him with credit for tune served solely under the Board’s warrant from January 24, 1999, to July 8, 1999 (a period of five months and fourteen days). By letter mailed February 2, 2000, the Board denied Berry’s request for administrative relief. The Board noted that Berry did not post bail following the September 24, 1998, charges. The Board concluded, citing Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634 (Pa.Cmwlth.1999), that Berry was not entitled to credit as he had no right to deposit the five months and fourteen days into a “penal checking account and apply any pre-sentence custody credit in excess of his new sentence to his original sentence.” (Certified Record at 66). The Board also concluded that, after adding the one year, eight months and seventeen days that Berry owed on his original sentence to July 8, 1999, when Berry was first held solely on the Board’s warrant, it properly recalculated Berry’s parole violation maximum sentence date to March 25, 2001. On appeal to this Court, Berry argues that the Board erred as a matter of law in failing to provide him with credit for all time served solely under the Board’s warrant, i.e., that period of time from January 24, 1999, to July 8, 1999. More specifically, Berry argues that since- his maximum term for the September 24, 1998, charges expired on January 24, 1999, any time he served subsequent to that date was served solely under the Board’s warrant. We disagree. Section 9760(1) of the Judicial Code, 42 Pa.C.S. § 9760(1), requires that time spent in custody awaiting trial and sentencing on new criminal charges be credited towards a new sentence. See also Snyder v. Pennsylvania Board of Probation and Parole, 701 A.2d 635 (Pa.Cmwlth.1997), petition for allowance of appeal denied, 555 Pa. 693, 722 A.2d 1059 (1998). Our Supreme Court further defined this issue in Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). In Gaito, the Court, adopting this Court’s rationale from Rodrigues v. Pennsylvania Board of Probation and Parole, 44 Pa. Cmwlth. 68, 403 A.2d 184 (1979), held as follows: Thus, if a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spént in custody shall be credited to his new sentence.' Gaito, 488 Pa. at 403-404, 412 A.2d at 571. Our Supreme Court thereafter created an exception to this rule by stating in a footnote that “[i]t is clear, of course, that if a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charges, the pre-trial custody time must be applied to the parolee’s original sentence.” Gaito, 488 Pa. at 404 n. 6, 412 A.2d at 571 n. 6. Applying the exception from the footnote in Gaito, this Court, in Davidson v. Pennsylvania Board of Probation and Parole, 667 A.2d 1206 (Pa. Cmwlth.1995), held that a parolee detained in custody for failure to post bond on new criminal charges that are ultimately nolle prossed is entitled to credit against his original sentence. Recently, however, we stressed that this exception only applies if a parolee is not convicted or if no new sentence is imposed. See Smarr v. Pennsylvania Board of Probation and Parole, 748 A.2d 799 (Pa.Cmwlth.2000). In the case at bar, Petitioner asks this Court to extend the exception such that a parolee who receives a shorter term of sentence than the period of time he is incarcerated at the time of sentencing is entitled to credit against his original sentence for this additional time. We refuse to do so. In this case, Berry pled nolo contendere to charges of reckless driving, fleeing and eluding police and driving under suspension. Hence, Berry was “convicted” of these new charges. In addition, Berry was sentenced to time served (four months) plus twenty months probation as a result of this conviction. As Berry was “convicted” of these new charges and a new “sentence” was imposed, the exception as stated in Gaito and Davidson does not apply. Thus, we cannot say that the Board erred as a matter of law in fading to credit Berry for time served from January 24,1999, to July 8,1999. Accordingly, the order of the Board is affirmed. ORDER AND NOW, this 13th day of July, 2000, the order of the Pennsylvania Board of Probation and Parole is affirmed. . Berry's actual date of release was September 18, 1993. His parole violation maximum sentence date at that time was March 16, 1999. . A preliminary hearing was held before a local district justice on October 8, 1998. At this hearing, all charges against Berry were dropped as a result of the victim’s failure to appear. . At this hearing, a charge of driving under suspension was added and the charge of unauthorized use of a motor vehicle was withdrawn. . Berry was actually recommitted as a technical parole violator to serve nine months back-time and recommitted as a convicted parole violator to serve twelve months baektime concurrently for a total of twelve months back-time. .Our scope of review of a Board’s recommitment order is limited to determining whether necessary findings of fact are supported by substantial evidence and are in accordance with law and whether any constitutional rights of the parolee have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Cromartie v. Pennsylvania Board of Probation and Parole, 680 A.2d 1191 (Pa.Cmwlth.1996).

RODGERS, Senior Judge. Joseph Tongel (Appellant) appeals from the order of the Court of Common Pleas of Allegheny County (trial court) quashing as untimely Appellant’s petition to review and vacate an arbitration award. We affirm. By letter dated December 22, 1998, Appellant was terminated from his employment as a City of Pittsburgh police officer for admittedly taking cash for his own use from a possible crime scene. Pursuant to Section 19-6 of the Working Agreement between the City of Pittsburgh and the Fraternal Order of Police, Fort Pitt Lodge No. 1 (Working Agreement), Appellant appealed his discharge and elected to proceed before a tripartite arbitration board comprised of a City designee, an FOP designee and a neutral member who served as board chairman. Arbitration commenced on February 2, 1999 and, with the parties’ consent, the arbitration panel continued its deliberations on February 18, 1999. The parties agreed that Chairman Michael E. Zobrak would write the arbitration award. Chairman Zobrak issued a letter dated February 22, 1999, informing the parties as follows: “In accordance with the provisions of the Collective Bargaining Agreement, I hereby issue the following determination in the above-captioned case: The grievance is deniedR.R. 7a (emphasis in original). In the letter, Chairman Zob-rak cited the facts that Appellant knew what he was doing when he took the money and he did not express remorse until after he was confronted by federal investigators. Chairman Zobrak concluded by stating that he “will expand on these positions in my full award.” Id. On March 12, 1999, a fifteen-page document entitled “Decision In Discharge Grievance” was issued, signed by the three panel members. The first paragraph of this document states that the parties were notified of the panel’s decision by letter of February 22, 1999 and that the document explains in detail the reasoning applied by the panel to reach its determination. R.R. 9a. On April 12, 1999, Appellant filed a petition to vacate the arbitration award. On May 9, 1999, the City filed a motion to quash the petition on the grounds that it was filed beyond the thirty-day appeal period provided by Section 5571(b) of the Judicial Code. The City averred that the final award was issued February 22, 1999, in accordance with Section 19-8 of the Working Agreement. In relevant part, Section 19-8 states that “the Arbitration Board’s decision must be issued in writing within five working days of the hearing, and a supporting opinion, if one-is requested, may be issued within thirty days of the hearing.” R.R. 80a. The trial court found that the binding arbitration award was issued February 22, 1999 and that Appellant’s petition, filed fifty days after the entry of that award, was untimely. The trial court granted the City’s motion to quash by order dated November 8, 1999. On appeal to this Court, Appellant acknowledges the mandatory language of Section 19-8, but argues that until the March 12,1999 decision was issued, he was not able to determine whether he had sufficient grounds to appeal under the narrow certiorari scope of review. Appellant contends that if the February 22, 1999 letter is held to trigger the running of the appeal period, grievants will routinely file appeals in order to preserve their rights until a “full decision” informs them' whether grounds for appeal exist. Appellant also maintains that allowing the appeal period to begin with- the issuance of the “full decision” would not prejudice the City. Appellate review of a trial court’s order granting a motion to quash an appeal as untimely is limited to determining whether the trial court abused its discretion or committed an error of law. Fraternal Order of Police, White Rose Lodge No. 15 v. City of York, 708 A.2d 855 (Pa. Cmwlth.1998). In the present case, the language of the parties’ Working Agreement unambiguously requires the arbitrators’ decision to be issued in writing within five working days. The February 22, 1999 letter definitively informed Appellant that the grievance was denied and set forth the basis for the panel’s determination, i.e., Appellant’s misconduct. In addition, Section 19-12 of the Working Agreement permits the five-day time limitation set .forth in Section 19-8 to be extended by written consent of the parties; as the City observes, this section provides grievants the opportunity to delay a decision without filing a protective appeal. Thus, we reject Appellant’s contention that the bargained for provisions of the Working Agreement leave grievants no alternative other than to flood the courts with unnecessary appeals. We conclude that the trial court neither erred as a matter of law nor abused it discretion in quashing Appellant’s petition as untimely. Accordingly, we affirm. ORDER NOW, July 7, 2000, the order of the Court of Common Pleas of Allegheny County in the above matter is affirmed. . 42 Pa.C.S. § 5571(b). . The narrow certiorari scope of review, applicable to arbitration awards involving police or fire personnel, limits courts to reviewing questions concerning: 1) the jurisdiction of the arbitrators; 2) the regularity of the proceedings; 3) an excess of the arbitrator's powers; and 4) deprivation of constitutional rights. Pennsylvania State Police v. Pennsylvania State Troopers’ Association (Betancourt), 540 Pa. 66, 656 A.2d 83 (1995).