text:
    660 A.2d 592
    In the Matter of the Insurance Trust of Howard S. SAMSON Dated December 5, 1967 for Elinor R. Samson, et al. (Four Cases) Appeal of Richard C. BEINHAUER. (Four Cases)
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1995.
    Filed March 28, 1995.
    Reargument Denied June 7, 1995.

      Michael E. Lowenstein, Pittsburgh, for appellant.
    John R. McGinley, Pittsburgh, for Stoecklein, participating party.
    Templeton Smith, Jr., Pittsburgh, for Trustees, participating party.
    Before ROWLEY, P.J., and.McEWEN and POPOVICH, JJ.
   POPOVICH, Judge:

This case involves an appeal from the orders (consolidated for appeal purposes) of the Court of Common Pleas of Allegheny County, Orphans’ Court Division, approving the sale of trust property excepted to by the appellant, Richard C. Beinhauer. We affirm.

The record discloses that on December 5, 1967, Howard S. Samson (settlor) created an “Insurance Trust Agreement” whereby the trustees were to hold certain policies of insurance on the settlor’s life in trust, and the proceeds were made payable to the trustees as beneficiaries. The trustees also had the power to invest assets of the trust and distribute income to the wife (75%) and daughter (25%) on a quarterly basis. The principal could be invaded by the trustees and paid to the wife if deemed advisable. Further, the Trust was to terminate after the passage of 21 years “following the death of the survivor of the [settlor’s] wife and all his issue living at his death or until the prior death of all the [settlor’s] issue.” The remainder interest was transferrable to three charitable organizations.

Article Five (A) of the Trust Agreement reserved to the trustees the power to sell the trust corpus for a price deemed reasonable by the trustees, but in no event was the sale to be made “to any person ... who is a resident of Allegheny or to any corporation doing business in Allegheny County.”

With the settlor’s death and his wife’s advancing years, the trustees decided to sell the real estate held by the Trust and distribute the proceeds to Ms. Samson. After conducting a nationwide search, the trustees located a buyer (appellant) offering a fair price (1.3 million dollars) for the settlor’s stocks and real estate holdings. In advance of completing the sale, however, the trustees interpreted Article Five (A)’s geographical exclusion of Allegheny County residents or corporations doing business therein from the sphere of potential purchasers to necessitate court approval of the sale to the appellant, who met the latter exclusionary criterion.

Toward that end, a “Petition For Leave To Consummate Sale” was filed to secure the court’s approval to sell to the appellant because of his business activities in Allegheny County. See Paragraph 10. A date was set to hear argument on the appellant’s Petition. Prior thereto, however, one Bernard E. Stoecklein objected to the Petition and submitted a bid of 1.4 million dollars.

By order dated March 11, 1994, the Orphans’ Court ruled that the Sales Agreement between the trustees and the appellant was “contingent”, and case law authorized it to “evaluate all offers” where a trust sale was pending. Exceptions by the appellant were dismissed, and the March 11th order was rendered final for áppeal purposes. The same occurred with regard to the Orphans’ Court’s April 13th (denial of the appellant’s preliminary objections) and May 12th (authorization of oral auction in open court) orders, all of which were consolidated by this Court for appeal purposes.

Initially, we are asked to consider whether the Orphans’ Court exceeded its authority in refusing to grant the “Petition for Consummation” of the Sales Agreement between the appellant and the trustees after concluding that the geographical restriction in the Trust Agreement did not apply to preclude the sale to the appellant.

In support of his position, the appellant argues that 20 Pa.C.S.A. § 3360(a) prescribes only two instances in which a court may intervene to consider subsequent offers made to a trustee; to-wit:

... first, where the transaction can only be accomplished with court approval, such as where the transaction is prohibited by the trust agreement, or second, where the parties “specifically provide for prior approval of the terms of sale.” Because neither of these exceptions applies here, judicial intervention was not permissible in this case.

Appellant’s Brief at 17-18. We disagree and begin our explanation of the same with Section 3360(a), which provides in pertinent part:

(a) Inadequacy of consideration or better offer. — When a personal representative shall make a contract not requiring approval of court, or when the court shall approve a contract of a personal representative requiring approval of the court, neither inadequacy of consideration, nor the receipt of an offer to deal on other terms shall, except as otherwise agreed by the parties, reheve the personal representative of the obligation to perform his contract or shall constitute ground for any court to set aside the contract, or to refuse to enforce it by specific performance or otherwise. Provided that this subsection shall not affect or change the inherent right of the court to set aside a contract for fraud, accident or mistake. Nothing in this subsection shall affect the liability of a personal representative for surcharge on the ground of negligence or bad faith in making a contract.

20 Pa.C.S.A. § 3360(a).

This Court has had occasion to apply Section 3360(a) to a scenario in which an Orphans’ Court refused to approve the sale of real estate to a prospective buyer (North Fork, Inc.), even though an executor had petitioned for approval of the sale as required by the terms of the Agreement where a subsequent buyer (Stabler Development Corp.) had made a higher offer for the same property. See In re Estate of Lazarus, 420 Pa.Super. 379, 616 A.2d 1023 (1992), allocatur denied, 534 Pa. 649, 627 A.2d 179 (1993).

On appeal, in affirming the Orphans’ Court, the Lazarus Court made some observations which are instructive as to the course to pursue at bar; to-wit:

... section 3360(a) deals specifically with only two situations: (1) when a personal representative shall make a contract not requiring court approval, or (2) when a court has already approved a contract of a personal representative requiring court approval. The present case falls under neither category. The contract between the Executor and North Fork, Inc., does not fall into category one since the contract did not require court approval. While the second category under that section does deal with contracts requiring court approval, as did the North Fork contract, when read carefully, and in its entirety, it is clear that the type of situation falling within the second category of section 3360(a) is most succinctly interpreted by our Supreme Court in Estate of Penrose, 486 Pa. 9, 403 A.2d 982 (1979).

In addressing the possible applicability of section 3360(a) to the case before it, the Penrose court stated:

Any suggestion that section 3360(a) of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. §§ 101 et seq., precluded the court’s consideration of the [subsequently made] Keeley offer in determining whether to approve the R & R [initial] agreement is without legal or factual basis.

In [In re] Curtis Estate, supra, this court stated:

The Act of May 24, 1945, P.L. 944, 20 P.S. §§ 818, 819 [now section 3360 ], specifically addresses itself to situations in which it appears after approval that a higher price could have been obtained, and it forbids any withdrawal of approval for such a reason. Absent a showing of a lack of integrity in the judicial process which led to the approval, the approval, once given, is final and binding.
437 Pa. [123] at 129, 261 A.2d [589] at 593 [ (1970) ]. Here prior to court approval and before execution of the R & R agreement another offer arose. That offer was properly considered by the court in evaluating the best interests of the beneficiaries. Estate of Penrose at 14-15, n. 3, 403 a.2d at 984-85, n. 3 (emphasis added).
Presently, we also are faced with a situation where, prior to court approval, another offer was presented to the executor. Clearly, in light of Penrose, supra, and Curtis, supra, the trial court did not err in evaluating the offers in light of the best interests of the beneficiaries and granting its approval accordingly.
This interpretation of section 3360(a) becomes all the more cogent when one considers that, under established principles of contract law, the “court approval” clause in the sales agreement operates as a condition precedent.
* * sfc sH ‡
... the North Fork sales agreement ... was conditional. The agreement provides that an event must occur; namely, that the Orphans’ Court approve the agreement before any contractual duties arise. Furthermore, although this event must occur, it is not certain to occur. Court approval of the agreement is not pro forma. A key characteristic of a conditional contract is that the condition is not certain to occur. * * * Section 3360(a) specifically provides that a better offer will not “constitute ground[s] for any court to set aside the contract.” Until the condition precedent is satisfied, no contractual duties arise. Thus, when presented with two conditional sales agreements, the trial court is well within its power to evaluate the agreements and grant its approval of one or the other. It is only when, after initial approval of the court has been granted, that section 3360(a) would come into play to prevent the court from setting aside a contract it has already approved.

420 Pa.Super. at 384-86, 616 A.2d at 1025-1026.

Instantly, as in Lazarus, the Sales Agreement provided specifically for court approval as a sine qua non to consummating the sale between the trustees and the appellant:

... in order to satisfy conditions and restrictions of the Trust Agreement, Sellers[/Trustees] will seek court approval for leave to consummate the sale of the assets to [the appellant] in accordance with the petition for leave to make public or private sale.... After Sellers[/Trustees] obtain the final order of court requested in the petition, SellersI/Trustees] shall notify Buyer of receipt of the order....

See Exhibit “A”, attached to Orphans’ Court’s May 12, 1994, order at Record No. 28 (“Article 5.1 — Miscellaneous”). Also, with the conditional nature of the Sales Agreement, the Orphans’ Court had the authority to open the bidding process by holding an auction in court to allow for the most lucrative return for the beneficiary (Ms. Samson) of the trustees’ sale of trust assets. See note 2, supra.

To embrace the appellant’s contention that the trustees only requested by petition that the Orphans’ Court rule that the “geographic” clause of proscribing sales to Allegheny County residents or corporations doing business in the same county did not apply to the appellant ignores record evidence to the contrary. For instance, in the “Petition For Leave To Consummate Sale” at Paragraph 9, it provided that the sale of real estate had been discussed “with four national entities ... and with numerous entities in southwestern Pennsylvania ... interested in real estate development.” Interested entities were advised on June 30,1993, to submit sealed bids and “that all proposals would be subject to the approval of ... Trust Investment committee, that the Petitioners expected to seek court approval of the sale____” (Emphasis added). •

In Paragraph 20 of the “Petition to Consummate,” the petitioners wanted to complete the sale, but they believed that Article Five (A) “may limit their power” to sell to the appellant because of his activities in Allegheny County individually and as an owner of stock in corporations which conducted business in Allegheny County. “For this reason Petitioners wish[ed] to insure that the limitation on their power to sell [wa]s removed and therefore s[ought] court approval of the proposed sale in accordance with Section 7141, 3351, 7133 & 3353 of the Pennsylvania Probate, Estates and Fiduciaries Code.” See Record No. 7, page 5.

Lastly, Paragraph 12 of the “Petition to Consummate” read that all those interested parties making inquiry into the purchase of property, “in each case ... have [been] notified ... that the proposed sale is subject to court approval and ... if they have any interest in the proceeding, they should contact the Clerk of the Orphans’ Court Division for further information.” Id. at page 6 (Emphasis added).

Accordingly, viewed in light of the language contained in the “Insurance Trust Agreement,” “Sales Agreement” and “Petition For Leave To Consummate Sale,” the trustees were not seeking solely to invalidate the “geographic” clause of the Trust Agreement, but to obtain the Orphans’ Court’s imprimatur for the sale and to insulate the fiduciaries from any possible surcharge for acting improvidently or ultra vires. This is evident from the fact that the trustées received inquiries “nationally” from prospective buyers, and the sale drew more than the appellant’s interest. Thus, regardless to whom the trustees sold, court approval would have been necessary in advance of consummating any agreement with a prospective buyer, be he/she within or outside the confines of Allegheny County. Paragraphs 9, 10 and 12 of the Sales Agreement indicate no less. See discussion supra.

The appellant having proffered no argument supportive of his request for a reversal of the Orphans’ Court’s actions, we affirm the order appealed. See Lazarus, supra, 420 Pa.Super. 379, 616 A.2d 1023.

Order affirmed.

      . The trustees consisted of Elinor R. Samson, wife of the settlor, Thomas D. Thomson, Esquire, and Mellon National Bank and Trust Co.

      . The auction in open court resulted in the appellant being outbid by Mr. Stoecklein with an offer of 2 million dollars for the Trust's assets, accepted and finalized thereafter.

      . The second issue raised by the appellant, i.e., the Orphans' Court erred in finding that the successful bidder (Bernard E. Stoecklein) had standing to object to the “Petition For Leave To Consummate Sale” is rendered moot with the Orphans’ Court’s determination that 20 Pa. C.S.A. § 3360(a), as interpreted by In re Estate of Lazarus, 420 Pa.Super. 379, 616 A.2d 1023 (1992), allocatur denied, 534 Pa. 649, 627 A.2d 179 (1993),' authorized-its -actions in opening up the bidding process for the benefit of the beneficiaries....” Orphans’ Court Opinion, 9/30/94, at 8.
      Given that the Sales Agreement conditioned the purchase upon securing “court approval,” the objections of Stoecklein were secondary to the Orphans’ Court opening the bidding process.
      Likewise, the appellant’s reliance upon In re Estate of Hughes, 517 Pa. 410, 538 A.2d 470 (1988), is misplaced because Hughes fell within the first category under 20 Pa.C.S.A. § 3360(a), i.e., when a personal representative shall make a contract not requiring court approval, and' consequently distinguishable from the present case. See Lazarus, supra.


source: Caselaw Access Project

author: BECK, Judge.

license: Public Domain

text:
    660 A.2d 596
    COMMONWEALTH of Pennsylvania v. Lawrence HARPER, Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 12, 1995.
    Filed May 10, 1995.
    Reargument Denied July 20, 1995.

      Ramy I. Djerassi, Philadelphia, for appellant.
    David Laigaie, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   BECK, Judge.

We address, inter alia, the propriety of the court’s giving an instruction on accomplice liability where appellant was not charged as an accomplice but only as the principal.

In this appeal from the judgments of sentence for first degree murder, robbery and possession of an instrument of crime, appellant asserts that the trial court erred in instructing the jury on accomplice liability and that trial counsel was ineffective for failing to object to the prosecutor’s cross-examination of a defense witness. We find appellant’s claims to be without merit and affirm.

Appellant was convicted by a jury and sentenced to life in prison for the fatal shooting of Kevin Evans. The homicide occurred on a Philadelphia street in the early morning hours of April 25, 1992. Evans was exiting a restaurant when appellant snatched a gold chain from his neck and then shot him in the head. Appellant and another man were observed standing over Evans’s body, going through his pockets and then fleeing. Appellant also attempted to flee from police when he was arrested several days later.

At trial, the Commonwealth presented two witnesses who were on the street the night of the murder. Henry Blakely testified that he was across the street from the scene of the crime when he heard a gunshot and observed two men standing over the body of the decedent. One of the men wore a waist-length black leather jacket and held a gun; the other man wore a full-length Los Angeles Raiders coat. Blakely saw the armed man in the leather jacket rifle through the victim’s pockets. Blakely did not identify appellant as a perpetrator.

Noel Jackson testified that he was standing outside of the restaurant just prior to the shooting and observed appellant there when Evans approached. Jackson knew both appellant and Evans. As the victim entered the restaurant, Jackson watched appellant take a gun from his waistband and heard him declare, “I am going to kill that motherfucker.” Jackson began to walk away and as he was crossing the street, he heard a shot. Jackson turned and saw appellant and a man he. knew as Andre running toward him. He saw that appellant had in his hand a gold chain. He also observed that appellant was wearing a black leather jacket.

Appellant presented Carl Brooks, an alleged eyewitness at trial. Like Blakely, Brooks also was positioned across the street from the restaurant at the time of the shooting. He testified to seeing two black males, one of whom wore a black coat with writing on the back, approach the victim, attempt to rob him and shoot him in the head. Brooks identified the shooter as someone he knew named Ski-Bop. On cross-examination, Brooks was asked by the prosecutor why he had not told homicide detectives on the night of the shooting that Ski-Bop was the shooter. He was also asked about his familiarity with appellant and his family, his dislike of Ski-Bop, and the fact that he had been brought to court by appellant’s family. Brooks was further cross-examined about a conversation he initiated with the prosecutor the day before his testimony, wherein he stated that he was afraid of appellant’s family.

After closing arguments, the prosecutor requested a jury charge on accomplice liability. The court granted the request over appellant’s objection. The jury returned a verdict of guilty on all counts and, after a penalty hearing, appellant was sentenced to life in prison.

Appellant’s first claim, that the trial court erred in granting the Commonwealth’s request for an accomplice charge, is based on lack of notice. The request for the charge, appellant argues, came too late in the proceedings, caused surprise to appellant and foreclosed a defense response to this theory of the case. We note that a conspiracy charge originally made against appellant was dismissed by the court at the preliminary hearing stage.

In his brief, appellant argues that the prosecution ignored both the letter and the spirit of Pa.R.Crim.P. 1119(a), regarding requests for jury instructions, in failing to make a written request for an accomplice liability charge prior to closing statements. With respect to these allegations, the law is clear. First, Rule 1119 does not require written requests for jury instructions, it merely states a preference for such. See Commonwealth v. Donahue, 428 Pa.Super. 259, 630 A.2d 1238, 1247 (1993), appeal denied, 538 Pa. 612, 645 A.2d 1316 (1994). Second, the trial court is not limited to instructing a jury on only those points requested by the parties prior to closing statements. Regardless of whether or when a request for a specific instruction is made by a party, the trial court must charge the jury appropriately, that is, in a manner supported by the evidence. See id. (counsel’s request for supplemental jury instruction after judge charged jury was proper where charge appropriate under the facts of the case). See also Commonwealth v. Danzy, 225 Pa.Super. 234, 310 A.2d 291 (1973). Appellant’s challenges to the timing and manner of the charge, therefore, are meritless.

However, appellant’s claim that he was surprised by the instruction on accomplice liability, and that his surprise resulted in prejudice to his defense, warrants a close review of the evidence presented at trial. Essentially, appellant asserts that he had no notice that he would be facing a theory of accomplice liability and could not respond thereto. He also asserts that the evidence did not in any manner support such a theory.

The Commonwealth relies on Commonwealth v. Perkins, 485 Pa. 286, 401 A.2d 1320 (1979), as authority for its position that appellant was given proper notice and the instruction was appropriate. As in the instant case, the appellant in Perkins was charged only as a principal. Further, the prosecution’s request for the accomplice charge came after closing arguments. However, in the Perkins case, our supreme court was equally divided on the propriety of the accomplice charge and, as a result, merely affirmed the judgment of sentence.

In his opinion in support of affirmance, Justice O’Brien stated that a defendant could be found guilty under a theory of accomplice liability even if only charged as the perpetrator. Id. at 288, 401 A.2d at 1321. Based on Danzy, supra, 225 Pa.Super. 234, 310 A.2d 291, Justice O’Brien stated that the timing of the charge was of no moment as the evidence supported an accomplice theory of guilt and the court was therefore required to give the instruction. Id. at 292, 401 A.2d at 1323.

Justice Roberts filed an opinion in support of reversal. He noted that the record established the Commonwealth expressly represented at trial that it would not pursue a theory of accomplice liability at trial. The defense relied on that representation, Justice Roberts found, and therefore had no “reasonable notice of accomplice liability, and no reason to anticipate, present evidence, or argue to the jury against accomplice liability.” Id. at 296, 401 A.2d at 1325.

Subsequent opinions of this court have addressed the issue of the “late accomplice charge,” and have established a test for determining whether error occurred in this context based on both expressions in Perkins.

In Commonwealth v. McDuffie, 319 Pa.Super. 509, 466 A.2d 660 (1983), the informations charged appellant as a principal for robbery and related crimes; however, the trial judge found the appellant guilty as an accomplice. On appeal, the appellant argued that “imposing criminal liability on him as an accomplice ... constitute^] a fatal variation ... between the allegations and the proof,” entitling him to a discharge. Id. at 511, 466 A.2d at 661.

The McDuffie court, relying on the reasoning in the opinion in support of affirmance in Perkins, held that a person need not be charged as an accomplice in order to be found guilty under such a theory and that charging the appellant for the commission of a crime was sufficient to warrant his conviction as an accomplice. Id. The court then addressed the concerns stated by Justice Roberts in the Perkins opinion in support of reversal. Noting that there had been no express rejection of an accomplice theory by the Commonwealth on which the appellant had relied, the court found that the facts of the case before it were sufficiently distinct from those in Perkins. The McDuffie court found that the Commonwealth’s charge of conspiracy and its inclusion in the complaint of the language “[appellant] did with another hold up ... [the victim]” constituted “notice clearly adequate to alert [the] appellant to the potential imposition of criminal liability as an accomplice.... ” Id. at 513, 466 A.2d at 662 (emphasis in original).

In Commonwealth v. Smith, 334 Pa.Super. 145, 482 A.2d 1124 (1984), a panel of this court again faced a challenge to an accomplice charge where the appellant had been charged only as a principal. Drawing on both Perkins and McDuffie, the Smith court held that because the appellant had not been misled by the Commonwealth through the informations or at trial, and because the evidence adduced at trial supported an accomplice theory, the appellant had sufficient notice and the trial court properly instructed the jury. Id. at 150, 482 A.2d at 1127. Notice to the appellant was sufficient, the Smith court reasoned, because the appellant originally was scheduled to be tried jointly with another person. Further, throughout the trial, the appellant repeatedly attempted to transfer criminal liability to that other person. Id.

The holdings of McDuffie and Smith require that we carefully review the record to determine whether appellant had sufficient notice of the potential for an accomplice theory despite being charged as a principal and whether appellant was misled by the Commonwealth. Our analysis of the transcript leads us to rule in the Commonwealth’s favor.

The Commonwealth offered two witnesses who were at the scene of the crime. The first witness, Carl Blakely (who could not identify appellant) testified to observing a guy with a gun leaning over the -victim and “another guy standing along with him.” Blakely’s description of these two men was of such import that the court directed the witness to refer to the man wearing a waist length leather jacket and holding a gun as “number one” and the man wearing a full length Raiders coat as “number two.” On cross-examination, defense counsel sought to impeach Blakely with his previous statement to police by repeatedly attempting to get him to admit that it was “number two” who had the gun. See Smith, supra, 334 Pa.Super. 145, 482 A.2d 1124 (appellant clearly on notice of potential for accomplice liability where he repeatedly attempted throughout the trial to transfer blame to other person with him at the time of the crime).

The Commonwealth’s second witness was Noel Jackson. Jackson identified appellant and testified that he observed appellant with a gun and heard him say that he intended to kill the victim; however, Jackson did not see the actual shooting. He too testified to seeing appellant in the company of another man he knew as Andre. Jackson stated that after he heard the shot, he saw appellant and Andre running toward him and away from the scene. '

Appellant’s primary witness was Carl Brooks, who testified that the shooter was an individual he knew by the name of Ski-Bop. Although Brooks testified that he did not see appellant that night, he stated that two people were involved in the victim’s murder.

It is clear from a reading of the entire transcript that in presenting its case, the Commonwealth focused on appellant as the shooter. It is equally clear, however, that the witnesses offered by both parties testified to observing two males involved in the shooting. Under McDuffie and Smith, this testimony, coupled with the absence of an express rejection of accomplice theory by the Commonwealth, constitutes sufficient notice of the potential for accomplice liability and provides support for the grant of an accomplice instruction. The only thing that can be even remotely characterized as the Commonwealth’s “misleading” the defense is the prosecutor’s failure to request the accomplice charge prior to closing. As discussed above, this is an insufficient basis upon which to refuse to deliver to the jury an instruction which finds support in the evidence presented at trial. See Danzy, supra, 225 Pa.Super. 234, 310 A.2d 291. We find, therefore, that appellant was not deprived of notice in this case and there was no error by the trial court in instructing the jury on accomplice liability.

Appellant’s second issue is framed as an ineffectiveness challenge addressing the cross-examination of defense witness Carl Brooks. In order to establish ineffective assistance of counsel, appellant must present an underlying issue of arguable merit, a lack of reasonable strategy on the part of counsel, and resulting prejudice. Commonwealth v. Blount, 538 Pa. 156, 647 A.2d 199, 203 (1994). The record reveals that Brooks was an illiterate and learning-disabled man who did odd jobs at the nightclub across the street from the restaurant where the victim was killed. Brooks was working at the club on the night of the crime and testified that he saw the shooting and could identify the shooter. As noted previously, he named a man he knew as Ski-Bop as the shooter.

On cross-examination, Brooks was asked by the prosecutor about an incident that occurred outside the courtroom the day before Brooks testified. Apparently, Brooks approached the Commonwealth’s attorney and told him that he disliked Ski-Bop, that he had been brought to court by appellant’s family, whom he feared, and that he was afraid to be seen by the family talking to the prosecutor. During this encounter, Brooks was shaking and crying. When confronted with questions about the incident and asked by the prosecutor to “tell the truth,” Brooks admitted that all of what the prosecutor said was true. Appellant claims that the prosecutor’s questioning of Brooks was improper because it “implied the prosecutor knew the truth” and that “truth” differed from Brooks’s testimony. Appellant further claims that the prosecutor’s questions were “unfairly intimidating” considering Brooks’s mental capacity.

Appellant attempts to characterize the cross-examination of Brooks as a violation of the well-settled rule that a prosecutor may not express a personal opinion on the credibility of a defense witness. See Commonwealth v. Bricker, 506 Pa. 571, 487 A.2d 346 (1985). We fail to see the analogy to Bñcker here. Our thorough review of the transcript leads us to conclude that Brooks merely was cross-examined for bias, which bias was evidenced by his statements to the prosecutor the previous day, and to which he readily admitted. While the questioning of Brooks, both on direct and cross-examination, proved difficult due to his mental impairment and obvious nervousness and agitation, there was no objectionable behavior on the part of the assistant district attorney. Therefore, counsel could not be ineffective for failing to make an objection. We reject appellant’s ineffectiveness claim as it is without underlying merit. See Commonwealth v. Pierce, 537 Pa. 514, 645 A.2d 189, 195 (1994) (counsel not ineffective for failing to assert a meritless claim).

Judgments of sentence affirmed.


author: CERCONE, Judge: DEL SOLE, Judge,

text:
    660 A.2d 600
    Debbie S. WASSERMAN v. FIFTH & REED HOSPITAL d/b/a Mount Sinai Hospital, Appellant (Two Cases).
    Superior Court of Pennsylvania.

      Argued March 8, 1995.
    Filed June 7, 1995.

      Barbara S. Magen, Philadelphia, for appellant.
    Blake Berenbaum, Philadelphia, for appellee.
    Before DEL SOLE, FORD ELLIOTT and CERCONE, JJ.
   CERCONE, Judge:

This is a consolidated appeal from a final judgment entered March 17, 1994 which appellant has improperly characterized as an appeal from two post verdict orders. We affirm.

Appellee Debbie S. Wasserman was employed by appellant Fifth and Reed Hospital, Inc. d/b/a Mount Sinai Hospital (“hospital”) as a social worker. Her duties included arranging patient discharges. The hospital required Ms. Wasserman to work a seven and one-half hour day and allotted her a one-half hour lunch break. Ms. Wasserman punched a time clock at the beginning and end of each work day but not at lunch.

On May 10, 1989, Ms. Wasserman went to lunch with a friend at 1:00 p.m. They chose to eat at a cafeteria operated by the hospital and located within the hospital’s building. Appellee made a salad at the salad bar and, using a container labeled “vinegar,” dressed it with a clear liquid. After ingesting the salad, Ms. Wasserman felt a burning sensation in her mouth and throat. She was rushed to the hospital’s emergency room, treated and released to return to work an hour later. Subsequent chemical analysis revealed that the container labeled “vinegar” had actually been filled with an oven cleaning solution composed of sodium and potassium hydroxide (commonly known as lye).

Appellee filed a common law tort action against the hospital seeking to recover for the resulting injuries. During trial, the hospital unsuccessfully motioned for nonsuit, arguing that the exclusivity clause of the Workers’ Compensation Act barred the tort action of an employee injured during the course of employment. At the close of testimony, the hospital restated its position to no avail in a motion for directed verdict. The jury awarded appellee $125,000.00 in damages. The lower court denied post-trial motions and judgment was entered on March 16, 1994.

In this timely appeal, appellant presents the following issues for our consideration:

I. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR POST-TRIAL RELIEF SINCE THE VERDICT WAS IMPROPER AND AGAINST THE WEIGHT OF THE EVIDENCE AS PLAINTIFF’S ENTIRE CLAIM AGAINST DEFENDANT IS BARRED PURSUANT TO THE IMMUNITY AND EXCLUSIVITY PROVISIONS OF PENNSYLVANIA WORKMEN’S COMPENSATION ACT?
II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR POST-TRIAL RELIEF SINCE THE LOWER COURT ERRED IN ALLOWING PLAINTIFF’S TREATING PHYSICIAN, DR. LOWELL MEYERSON, TO TESTIFY ON THE ISSUE OF CAUSATION SINCE DR. MEYERSON WAS ONLY ABLE TO STATE THAT THE ALLEGED NEGLIGENT CONDUCT “COULD HAVE” CAUSED PLAINTIFF’S INJURY?
III. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR POST-TRIAL RELIEF SINCE THE LOWER COURT ERRED IN ALLOWING PLAINTIFF’S EXPERT WITNESS, DR. GORDON BENDERSKY, TO PROVIDE TESTIMONY WHICH LACKED AN ADEQUATE FACTUAL BASIS?
IV. DID THE TRIAL COURT ERR IN DENYING DEFENDANT’S MOTION FOR POST-TRIAL RELIEF SINCE THE LOWER COURT ERRED IN ALLOWING PLAINTIFF TO TESTIFY CONCERNING STATEMENTS ALLEGEDLY MADE TO HER BY HER TREATING PHYSICIAN DESPITE THE FACT THAT THIS TESTIMONY CONSTITUTED INADMISSIBLE HEARSAY AND ALLOWED PLAINTIFF TO PROVIDE EXPERT MEDICAL TESTIMONY ON HER BEHALF?
V. DID THE TRIAL COURT ERR IN FAILING TO GRANT A NEW TRIAL OR REMITTITUR DESPITE THE FACT THAT THE VERDICT WAS UNDULY EXCESSIVE?

Brief of Appellant at 3. We shall address eaeh issue in the order presented.

We begin by considering appellant’s contention that, because the hospital was immune from the tort action of its employee, a judgment n.o.v. was proper. In reviewing an order denying a motion for judgment n.o.v., we must consider the evidence “in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). A judgment n.o.v. is proper if the movant is entitled to judgment as a matter of law or if the evidence was such that no two reasonable minds could disagree that the verdict was improper. Id.

As part of the quid pro quo of the Workers’ Compensation Act (the “Act”), an employee surrenders the right to sue an employer in tort for injuries received in the course of employment to obtain the benefit of strict liability. 77 P.S. § 481(a). If an injury is compensable under the Act, the compensation provided by that Act is the employee’s exclusive remedy. See Lewis v. School District of Philadelphia, 517 Pa. 461, 470, 538 A.2d 862, 867 (1988). See also Ducjai v. Tarvin, 540 Pa. 103, 656 A.2d 102 (1995) (discussing exclusivity provisions of the Act). A compensable injury includes “any injury to an employee, regardless of his previous physical condition, arising in the course of his employment and related thereto, and such disease or infection as naturally results from the injury or is aggravated, reactivated or accelerated by the injury.” 77 P.S. 411(1). Whether a claimant is acting within the course and scope of employment at the time of injury so as to fall within the Act’s coverage is a question of law to be determined on the basis of findings of fact. Vosburg v. Connolly, 405 Pa.Super. 121, 125, 591 A.2d 1128, 1130-31 (1991). An injury arising in the course of employment

shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment; but shall include all other injuries sustained while the employe is actually engaged in the furtherance of the business or affairs of the employer, whether upon the employer’s premises or elsewhere, and shall include all injuries caused by the condition of the premises or by the operation of the employer’s business or affairs thereon, sustained by the employe, who, though not so engaged, is injured upon the premises occupied by or under the control of the employer, or upon which the employer’s business or affairs are being carried on, the employe’s presence thereon being required by the nature of his employment.

77 P.S. § 411(1). Consequently, the Act distinguishes between two categories of injuries: “injuries that are sustained while the employee is actually engaged in the furtherance of the business of the employer, regardless of the physical location of the injury____and injuries occurring on the premises of the employer.” Tatrai v. Presbyterian University Hospital, 497 Pa. 247, 251, 439 A.2d 1162, 1164 (1982) (citations omitted).

To determine whether an employee was acting in furtherance of the business of the employer, courts consider the nature of the employment and conduct a case specific inquiry. A traveling employee is entitled to a broader definition of the course of employment. As such, a traveling employee who is injured during a necessary or authorized break is presumed to be engaged in the furtherance of the employer’s business. Maher v. Hallmark Cards, Inc., 207 Pa.Super. 472, 218 A.2d 593 (1966). Appellee in this case is a stationary employee, ie., one who works primarily at the business site. Consequently, the phrase “course of employment” will be narrowly interpreted:

[d] espite the fact that such a phrase could be given a very broad reading, a review of certain cases makes clear that this requirement means a direct or immediate furtherance of the business affairs of the employer. A mere indirect or incidental benefit to the employer is insufficient.

Carretti v. Schwanger, 404 Pa.Super. 51, 55, 589 A.2d 1165, 1167, 1169 (1991), appeal denied 529 Pa. 615, 600 A.2d 532 (1991).

In Tatrai, a hospital employee became ill during working hours and was directed by her supervisor to the emergency room for treatment. While in the emergency room, the employee was injured when the x-ray table on which she was reclining collapsed. Tatrai 497 Pa. at 249, 439 A.2d at 1163. As in this case, the hospital argued that it was immune from a tort action because the injury arose in the course of employment. Our Supreme Court found that, at the time of the injury, the employee was not actually engaged in the furtherance of her employer’s affairs:

We find it to be a tenuous proposition to argue that the indirect benefit to the employer of a healthy employee satisfies the statutory requirement of being actually engaged in the furtherance of the employer’s business. It would ignore reality to deny the fact that the employee’s purpose in seeking medical aid was primarily for her own benefit. While the maintenance of good health is of course of incidental value to the employer, the primary beneficiary is the employee whose well being is served.

Id. at 252, 439 A.2d at 1164.

In this case, appellant contends that the practice of its employees in taking their lunch breaks in the cafeteria inured to the direct benefit of the hospital:

The cafeteria in the Hospital was there primarily for the convenience of the Mt. Sinai staff and undeniably benefited both the employees as well as defendant; during meals, fellow employees could fraternize and discuss Hospital matters. In this vein, there can be no doubt that the cafeteria provided a social function which was also business-related ____could reduce stress.... Likewise, the quicker the employees ate, the more rapidly they could return to their jobs. Also, providing the staff with the opportunity to remain on the premises during meals made them more available to the Hospital----
This desire for easy access and communication is undoubtedly why there was a loudspeaker in the cafeteria as well as ‘house telephones.’

Reply Brief of Appellant at 2. But see Carretti, 404 Pa.Super. at 55, 589 A.2d at 1167 (generally, employees are on their own time during lunch and an off-premises injury during such time is not one sustained in the course of employment). The record does not support hospital’s contention. Ms. Wasserman was not an “on-call” employee. N.T., 4/13/93, at 51. See Barrick v. Pocono Highland Camp, 208 Pa.Super. 72, 74, 220 A.2d 662, 664-65 (1966) (although employee lived on employer’s premises, he was not required to be on premises, was not on call, and was not engaged in his duties at the time of the injury; therefore, employee’s injuries were not deemed to have arisen in the course of employment). Although the hospital required its employees to wear beepers when on duty, it was appellee’s practice to remove the beeper and lock it in her desk before going to lunch. Unlike doctors, residents and interns, social workers are not constrained by the exigencies of the job to remain available at an instant’s notice. In fact, Ms. Wasserman had never been called away from lunch by a supervisor either personally or by page. Nor was she required to advise her office of where she could be reached during lunch. N.T., 4/13/93, at 84, 103.

Personal convenience dictated appellee’s choice of eating establishments. Although Ms. Wasserman ate lunch in the hospital cafeteria a majority of the time, she was at liberty to, and occasionally did, leave the premises for lunch. At times, she packed a lunch. The cafeteria was operated by the hospital but not restricted to hospital personnel. To the contrary, because the meals were reasonably priced, members of the community routinely ate in the cafeteria. Hospital employees were not entitled to special discounts. Ms. Wasserman, like any other patron, was required to pay full price for her meals. Consequently, we find that Ms. Wasserman’s act of eating lunch in the hospital cafeteria did not directly benefit her employer. Compare Speight v. Burens, 371 Pa.Super. 478, 538 A.2d 542 (1988) (employee went to lunch with his employer to discuss work projects; injuries sustained in motor vehicle accident on return from lunch were covered by the Workers’ Compensation Act). Because appellee was not actually furthering the hospital’s business at the time of the injury, the injury does not fall within the first category of “an injury in the course of employment.”

We now turn to the second category of injuries arising in the course of employment. Specifically, we must determine whether appellant is immune from an employee’s tort suit because the incident occurred on the hospital’s premises and was caused by the hospital’s negligence. An employee who is injured on the employer’s premises while not engaged in the furtherance of the business or affairs of the employer must satisfy three conditions in order for the injury to be compensable under the Act:

It must be shown that the injury was caused by the condition of the premises or by the operation of the employer’s business; that the injured employee, though not so engaged, was in fact injured upon the employer’s premises; and the employee’s presence thereon was required by the nature of the employment.

Tatrai, 497 Pa. at 253, 439 A.2d at 1165. The controverted question is whether Ms. Wasserman’s presence was required by the nature of her employment.

An employee is covered by the Act if it is “clear that the [employee’s] presence on the facility of the employer was required under the terms of employment and/or facilitated the orderly and expeditious disposition of the employer’s affairs.” Id. at 254, 439 A.2d at 1166. For example, in Tatrai, the employee was in her employer’s emergency room not to promote the orderly and expeditious disposition of the hospital’s affairs, but rather to seek treatment. The employee’s presence upon the premises at the time of the injury was only a fortuitous circumstance:

[Ms. Tatrai] went to the hospital emergency room which was open to members of the general public. The sole reason appellant went to the emergency room was for treatment of her illness. Upon her arrival to the emergency facility, Ms. Tatrai was treated as a paying patient and like any other member of the general public. Since Ms. Tatrai’s presence in the emergency room was not in furtherance of the affairs of her employer and was not required by reason of her employment, we must conclude that Workmen’s Compensation is not her exclusive remedy. There is no reason to distinguish appellant from any other member of the public injured during the course of treatment. The risk of injury which appellant suffered was a risk to which any member of the general public receiving like treatment would have been subjected. The occurrence of the injury was not made more likely by the fact of her employment.

Id. at 255, 439 A.2d at 1166.

According to our Supreme Court, “the controlling factor [in Tatrai ] was that the employee went to and was injured in the public emergency room which served the general public. Thus, there was no basis for distinguishing [Ms. Tatrai] from any other member of the public injured during the course of treatment.” Budzichowski v. Bell Telephone Company of Pennsylvania, 503 Pa. 160, 167-168, 469 A.2d 111, 114-115 (1983). In Budzichowski, an employee was injured while on the job and negligently treated by staff doctors who were working in the employer’s medical dispensary, a facility not open to the general public. Limiting the employee to recovery under the Act, the Court stressed: “The treatment received by [employee] at the [employer’s] dispensary was not available to the general public and would not have been available to the [employee] but for his employment relationship with [employer].” Id. Applying this rationale, a panel of this court recently denied tort recovery to a hospital employee who, after contracting tuberculosis, received negligent treatment and monitoring in a program available only to employees. Snyder v. Pocono Medical Center, 440 Pa.Super. 606, 656 A.2d 534 (1995). The hospital had established the employee health program to further its own special interest in curtailing the spread of contagious diseases, not to confer independent benefits on its employees. Id. Because the employee’s presence was therefore necessary to further the employer’s business interests, the injuries arose in the course of employment and were covered by the Act. Id.

In this case, Ms. Wasserman ate in a cafeteria open to the public not to further her employer’s interests but to accommodate her own. As we have already noted, appellee was free to leave the hospital during her lunch break. Moreover, she was not an “on-call” employee. Ms. Wasserman had never been paged or interrupted by business concerns during her lunch break. As such, there is no reason to distinguish appellee from any other member of the public so injured. Accordingly, we agree that the exclusivity provision of the Workers’ Compensation Act does not bar this employee’s tort suit. Judgement n.o.v. was properly denied.

Appellant further asserts that the trial court committed several errors which mandate the award of a new trial. A lower court’s denial of a motion for new trial will not be reversed on appeal absent either an error of law which controlled the outcome of the case or a comparable abuse of discretion when the ruling turns on the weight of the evidence. Simmons v. St. Clair Memorial Hospital, 332 Pa.Super. 444, 481 A.2d 870 (1984). After reviewing the record, we find each of appellant’s claims of error to be without merit. As such, we conclude that appellant’s motions for new trial were properly denied.

According to appellant, the lower court erred in allowing Dr. Lowell Meyerson to téstify on the issue of causation. The record discloses that appellee did not rely on the testimony of Dr. Meyerson, appellant’s expert witness, to establish causation. Instead, appellant presented her own expert, Dr. Gordon Bendersky. Dr. Bendersky opined, with a reasonable degree of medical certainty, that Ms. Wasserman’s injuries resulted from the ingestion of oven cleaning solution. Notes of Deposition, hereinafter N.D., 4/5/93, at 32. See Cohen v. Albert Einstein Medical Center, 405 Pa.Super. 392, 592 A.2d 720 (1991), appeal denied 529 Pa. 644, 602 A.2d 855 (1992) (expert must express his opinion within a reasonable degree of medical certainty).

Likewise, appellant maintains that because Dr. Bendersky lacked an adequate factual basis for his opinions, the lower court erred in admitting his testimony as to appellee’s injuries. An expert’s opinion may be based on facts of which he dr she has no personal knowledge if those facts are supported by evidence in the record. Collins v. Hand, 431 Pa. 378, 390, 246 A.2d 398, 404 (1968). Moreover, our Supreme Court has adopted a “limited” exception to this rule: “medical witnesses [are permitted] to express opinion testimony on medical matters based, in part, upon, reports of others which are not in evidence, but which the expert customarily relies upon in the practice of his profession.” Commonwealth v. Thomas, 444 Pa. 436, 445, 282 A.2d 693, 698 (1971). In addition, an expert may properly base an opinion on assumed facts which are supported by evidence in the record and conveyed in the form of a hypothetical question. See Hussey v. May Department Stores, Inc., 238 Pa.Super. 431, 357 A.2d 635 (1976).

In this case, Dr. Bendersky based his expert opinion on a review of the medical records, on his particular knowledge, training and experience, and on hypotheticals. N.D., 4/5/93, at 13, 33, 58-59. The medical records were admitted into evidence and were characterized as the type of records upon which an expert would reasonably rely in reaching a conclusion. N.D., 4/5/93, at 13-14. Accordingly, we find that the lower court properly admitted Dr. Bendersky’s expert testimony.

We now consider whether the trial court erred in allowing appellee to relate Dr. Meyerson’s comments to the effect that ulcerative colitis created an increased risk of colon cancer. Ms. Wasserman had suffered from ulcerative colitis in the past. During the five years immediately preceding the incident, however, the condition lay dormant. Both experts agreed that stress is one cause of the resurgence of ulcerative colitis. N.D., 3/24/93, at 12; N.D., 4/5/93, at 28. According to Dr. Meyerson, the combination of a family history of cancer and chronic ulcerative colitis created in Ms. Wasserman a higher risk of developing colon cancer. For that reason, he ordered a colonoscopy. N.D., 3/24/93, at 55. The level of stress engendered by a fear of cancer, regardless of the rationality of that fear, was relevant to the patient’s condition. Before allowing Ms. Wasserman to express the fear created by Dr. Meyerson’s supposition, the court cautioned the jury that the statements were being offered, not for their truth, but for their effect on appellee. N.T., 4/14/93, at 49-50. See Spotts v. Reidell, 345 Pa.Super. 37, 48, 497 A.2d 630, 636 (1985) (recognizing the efficacy of curative instructions to limit the use of hearsay testimony as reflecting appellee’s state of mind). Because we agree that appellee offered testimony relating to this out-of-court conversation, not to prove the truth of the matter asserted, but to prove appellee’s state of mind, we find that it was properly admitted.

In its final claim, appellant argues that the jury’s award of $125,000.00 was excessive and necessitates a new trial or, in the alternative, remittitur. The assessment of damages is peculiarly within the province of the jury, and the jury’s award will not be set aside on appeal unless it is so excessive as to shock the conscience of the court or unless it is clearly based on partiality, prejudice or passion. Krysmalski by Krysmalski v. Tarasovich, 424 Pa.Super. 121, 147, 622 A.2d 298, 311-312 (en banc), appeal denied, 535 Pa. 675, 636 A.2d 634 (1993). See also Geyer v. Steinbronn, 351 Pa.Super. 536, 506 A.2d 901 (1986) (the trial court did not abuse its discretion in refusing to set aside or reduce the award of damages when there was no support for a finding that the jury misapprehended or disregarded the evidence and when there was evidence from which the jury could have found that the defendant’s actions precipitated a worsening of plaintiffs alcoholism which sent his personal life into a tailspin and caused his marriage to deteriorate). Similarly, the grant or refusal of either a new trial or remittitur because of the excessiveness of the verdict is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion or error of law. Krysmalski, supra.

During this trial, evidence was adduced from which the jury could have found that the ingestion of oven cleaning solution culminated in the exacerbation of ulcerative colitis, a condition which had lain dormant for five years. The jury was free to compare the testimony of Dr. Bendersky, Dr. Meyer-son, and Ms. Wasserman in reaching its conclusion. By awarding a verdict in favor of appellee, the jury demonstrated that it had accepted as credible her graphic descriptions of the deleterious impact of the affliction on her physical and social well-being. The lower court agreed that Ms. Wasserman was “a thoroughly credible witness.” Trial Court Opinion dated 3/28/94 at 12. On appeal, the Superior Court is not free to substitute its judgment for that of the finder of fact. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 166, 611 A.2d 1174, 1176 (1992). We conclude, therefore, that the trial court did not abuse its discretion in refusing to set aside or reduce an award of damages which was not so grossly excessive as to shock this court’s sense of justice.

Judgment affirmed.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I join the Opinion authored by Judge Cercone. I write to emphasize that appellee did not receive wages while taking her lunch break. At a minimum, if an employer seeks to claim that an injury to an employee is compensable, the employee should be receiving wages at the time of the occurrence. See 4/13/93 R.R. at 69A.

      . 77 P.S. § 1 et seq.

      . In its Memorandum Opinion and Order dated 3/28/94, the lower court confined its discussion to the hospital’s amenability to a common law tort action.

      . The parties have stipulated that the injury occurred on the hospital's premises. N.T., 4/13/93, at 99. Likewise, they do not dispute that the hospital’s negligence resulted in the placement of oven cleaner solution in the vinegar container. N.T., 4/14/93, at 113.

      . Our court’s decision in Henry v. Lit Brothers, 193 Pa.Super. 543, 165 A.2d 406 (1960) does not mandate a contrary result. The employer in Henry operated an employee cafeteria on the business premises and actively encouraged employee patronage. Employer also provided recreational facilities and allowed employees to use an outdoor yard for recreational purposes. An employee, after eating in the employees’ cafeteria, was injured while playing football in the yard. As in Snyder, supra., neither the cafeteria nor the yard were open to the general public; rather, both were restricted to employee use. The court found that the employee was covered by the Act. Id. at 548-49, 165 A.2d at 409-10.


author: POPOVICH, Judge.

text:
    660 A.2d 609
    COMMONWEALTH of Pennsylvania, Appellee, v. Eric BROOKS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 10, 1995.
    Filed June 14, 1995.

      Sheryl S. Chernoff, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge.

This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, following appellant’s conviction on one count of murder in the second degree, one count of aggravated assault, six counts of robbery, two counts of criminal conspiracy and two counts of possession of an instrument of crime. On January 25, 1991, appellant and his co-defendants robbed a Thriftway grocery store, during which a cashier was murdered when he could not open a cash register. Appellant gave the order to kill the victim. Two weeks later, on February 8,1991, appellant and two of his co-defendants robbed a Roy Rogers fast food restaurant, during which the manager of the restaurant was shot by appellant. Appellant was found guilty after his bench trial and was then sentenced to life imprisonment for his murder conviction. Upon review, we affirm.

Herein, appellant raises the following questions for our consideration:

1. Was trial counsel ineffective for failing to file a motion to sever the charges relating to the Thriftway robbery and murder from the Roy Rogers robbery and aggravated assault, where the details of the two crimes were not sufficiently similar so as to render the evidence relating to each incident admissible in a separate trial for the other, and where appellant has been unfairly prejudiced by the consolidation of the offenses?
2. Was trial counsel ineffective for failing to object to the use at trial of the redacted statements of appellant’s co-defendants, where statements could not be redacted sufficiently to avoid a violation of the Bruton rule, and where such violation prejudiced the defendant?
3. Was trial counsel ineffective for failing to file a motion to sever the charges against appellant from those of his co-defendants where appellant was prejudiced by the introduction of the co-defendants’ redacted statements during the joint trial?

The record, when viewed in a light most favorable to the Commonwealth, reveals that on January 25, 1991, appellant, James Rivers, Roy Johnson, Ronald Taylor, Jeffery Giddings and Truman Jenkins decided to rob the Thriftway Shopping Center at Third and Lehigh Streets in Philadelphia. Upon arrival, Johnson and Rivers entered the pharmacy which was located on one side of the supermarket, and Johnson, brandishing a firearm, demanded cash from the register. After obtaining the money, Rivers handcuffed the clerk and forced her to the floor.

At the same time, appellant, Taylor, Giddings and Jenkins entered the delicatessen area of the supermarket. Appellant and Giddings, with their guns drawn, approached the register and demanded money from the cashier, Carmen Feliciano. The cashier could not open the register, and when Lawrence Hollerway, another store employee, entered the area, he was seized by appellant. Appellant then told Feliciano and Holler-way that Hollerway would be shot if the cash register was not opened. When Hollerway was not able to open the register, appellant shouted, “Shoot him. Shoot him.” Giddings then said, “Well die” and shot the victim in the abdomen, fatally wounding Hollerway. The robbers then fled, and, later, they met to divide the proceeds from the robbery. The events which took place in the delicatessen section of the supermarket were video-taped by a store surveillance camera.

Two weeks later, on February 8, 1991, appellant, Johnson, Rivers and two other men robbed a Roy Rogers restaurant on Broad Street in Philadelphia. While Rivers robbed the customers, Johnson jumped over the counter, forced the manager into the back room of the restaurant and ordered him to open the safe. During the robbery, Johnson asked the manager, “Did you hear about Third and Lehigh?”, and warned that the same thing would happen to him if he did not open the safe. When the manager was unable to open the safe, Johnson shot him in the chest. The manager was again attempting to open the safe when appellant and Rivers entered the room. After he was still unable to gain entry, appellant, Johnson and Rivers all shot him. Appellant and his partners-in-crime then took $80.00 from the manager’s wallet and the money from the cash registers and fled. The manager, despite being shot four times, survived his injuries.

Four days later, on February 12, 1991, Johnson brought his .380 Baretta pistol and two loaded clips to David Green for disposal. However, Green gave the handgun to the police. Ballistic testing established that the gun had been fired during both the Thriftway and Roy Rogers robberies.

Upon his arrest, appellant confessed to participating in the Thriftway robbery and murder. At trial, the video tape of the Thriftway robbery and murder were shown, and two eyewitnesses testified concerning appellant’s participation in the events. The eyewitnesses versions corresponded to the video taped images. Also, the shooting victim from the Roy Rogers robbery, as well as another eyewitness, identified appellant as the man who announced the robbery and as one of the men who shot the victim. Appellant was then convicted of, inter alia, one count of murder, one count of aggravated assault and two counts of robbery.

The standard to be applied when counsel’s stewardship is attacked is well known: “The ineffectiveness of counsel is found where there is merit to the underlying claim, the course chosen by counsel does not have a reasonable basis, and the defendant shows prejudice.” Commonwealth v. Graham, 522 Pa. 115, 118, 560 A.2d 129, 130 (1989); Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989). Therefore, when reviewing appellant’s first assertion of error, we must determine whether there is arguable merit to appellant’s claim that the charges relating to the events at the Thriftway supermarket should have been severed from those at the Roy Rogers restaurant.

In Commonwealth v. Newman, 528 Pa. 393, 598 A.2d 275 (1991), our Supreme Court set forth the law regarding consolidation of separate indictments for trial:

Whether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant. Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (1988)....
******
Rule 1127 of the Pennsylvania Rules of Criminal Procedure provides in relevant part as follows:
A. Standards
(1) Offenses charged in a separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.

Rule 1128 provides that “[T]he court may order separate trials of offenses or defendants or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.” Pa.R.Crim.P. 1128. Thus, where a defendant moves for severance of two or more indictments not based on the same act or transaction, the court must determine whether evidence of the distinct offenses would be admissible in a separate trial for the other; whether such evidence can be easily separated by the jury so as to avoid confusion; and whether the defendant will be unduly prejudiced by the consolidation. Lark, 518 Pa. at 302, 543 A.2d at 497.

Rule 1127 A(1)(a) was adopted December 11, 1981, in direct response to this Court’s decision in Commonwealth v. Morris, 493 Pa. 164, 425 A.2d 715 (1981). In Morris, we held that indictments may be consolidated where the separate offenses show the unusual or distinctive modus operandi of the defendant. Id., at 176, 425 A.2d at 720. In arriving at this standard, we weighed the possibility of prejudice to the defendant and/or the injustice caused by the consolidation against the consideration of judicial economy. In seeking consolidation of the indictments, the Commonwealth is required to show more than the crimes are of the same class. Rather, it must show that a high correlation in the details of the crimes exists such that proof that the defendant committed one makes it very unlikely that anyone else but the defendant committed the other. Morris, 493 Pa. at 176, 425 A.2d at 721.

As this Court noted in Morris, evidence of a distinct crime is inadmissible solely to show a defendant’s propensity to commit a crime. Morris, Id. at 175, 425 A.2d at 720. Evidence of other crimes is, however, admissible for certain purposes if the probative weight of the evidence outweighs any possible prejudice to the jury. Commonwealth v. Claypool, 508 Pa. 198, 495 A.2d 176 (1985). Accordingly, evidence of other crimes may be introduced for the limited purposes of showing (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial. Lark, 518 Pa. at 303, 543 A.2d at 497.

Newman, 528 Pa. 393, 598 A.2d 275, 598 A.2d at 277-278; see also, Commonwealth v. Murphy, 418 Pa.Super. 140, 151-158, 613 A.2d 1215, 1221-1224 (1992), allocatur denied 533 Pa. 658, 625 A.2d 1192 (1993).

Here, it is clear that each robbery would have been admissible in a trial for the other. Indeed, Johnson, one of appellant’s co-defendants, referred to the earlier robbery while threatening the manager of the Roy Rogers restaurant. The robberies were committed within a two week period, and both were committed between the hours of 6:00 p.m. and 8:00 p.m., on a Friday evening. The Thriftway and Roy Rogers were located in the same neighborhood, approximately nine blocks apart. Both robberies involved essentially the same group of men who were armed with handguns. During both robberies, a similar modus operandi was employed, whereby one or more co-conspirators would go behind the business’ counter and threaten to kill an employee unless that employee opened the cash register or safe, while the other men robbed the customers. In both robberies, an employee was shot when he was unable to open the cash register or safe. At least one of the handguns used in both robberies was the same. Accordingly, we find it was not an abuse of discretion to try these separate indictments together. Cf, Claypool, supra, 508 Pa. 198, 495 A.2d 176 (where defendant exploits prior criminal acts to intimidate victim, those prior acts are admissible in trial for subsequent crime); Commonwealth v. Rush, 538 Pa. 104, 646 A.2d 557, 560-561 (1994) (evidence admissible where common scheme is used to commit crime); Commonwealth v. Reid, 533 Pa. 508, 626 A.2d 118 (1993) (evidence the defendant committed unrelated murder admissible to prove subsequent murder where empty shell casings found at both murder scenes were fired by the same gun).

Moreover, appellant’s trial was held before a judge, sitting without a jury. Appellant has offered no basis for us to conclude that the judge could not keep separate the facts of the two incidents so as to avoid both confusion and prejudice. See, Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368 (1992); Commonwealth v. Lavelle, 382 Pa.Super. 356, 555 A.2d 218 (1989), allocatur denied, 524 Pa. 595, 568 A.2d 1246 (1989). Thus, appellant has failed to demonstrate that he was prejudiced by the consolidation of the indictments. Newman, supra, 528 Pa. 393, 598 A.2d 275; Lark, supra, 518 Pa. 290, 543 A.2d 491.

Appellant was convicted on the basis of overwhelming evidence, including his own confession, a video tape of him committing the Thriftway robbery and testimony of the manager of the Roy Rogers whom appellant shot. See, Commonwealth v. Sam, 535 Pa. 350, 635 A.2d 603 (1993), cert. denied — U.S. —, 114 S.Ct. 2123, 128 L.Ed.2d 678 (1994) (counsel not ineffective for failing to object to evidence of other crimes, where properly admitted evidence was overwhelming). Appellant was not convicted of on a mere showing of his “propensity to commit crime.” Newman, supra, 528 Pa. 393, 598 A.2d 275. Since the issue underlying appellant’s first assertion of error is without merit, counsel cannot be held ineffective for failing to raise this issue. Graham, supra, 522 Pa. 115, 560 A.2d 129; Durst, supra, 522 Pa. 2, 559 A.2d 504.

Next, we will address appellant’s interrelated, second and third allegations of error. Appellant claims that trial counsel was ineffective for failing to object to the use at trial of the redacted statements of his co-defendants, where the statements could not be redacted sufficiently to avoid a violation of Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476, 479 (1968). In a related claim, appellant asserts that trial counsel was ineffective for failing to move to sever his trial from that of his co-defendants because use of their redacted statements at trial unduly prejudiced his case. Accordingly, in assessing counsel’s stewardship, we must determine whether there is merit to appellant’s claim that he was prejudiced by the admission of his co-defendant’s redacted statements.

The potential prejudice to a defendant from the use of a non-testifying co-conspirators’ statements must be balanced against the demands of judicial economy and desire for verdict consistency. Commonwealth v. Oliver, 431 Pa.Super. 1, 5, 635 A.2d 1042, 1044 (1993), citing Commonwealth v. Wharton, 530 Pa. 127, 142 and n. 5, 607 A.2d 710, 718 and n. 5 (1992), citing Richardson v. Marsh, 481 U.S. 200, 210, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176, 187 (1987). As stated in Oliver, supra:

Until the late 1960’s, courts routinely allowed the admission of .non-testifying co-defendants’ statements, and held that all prejudice could be cured by a simple limiting instruction that the jury only consider each confession against its author, and not the other co-defendants who were implicated by name. The U.S. Supreme Court declared this practice unconstitutional in Bruton v. United States. The response has been to employ another fiction: redaction of co-defendants’ statements so as to eliminate all references to an accused by name. This practice of substituting pronouns or “other person” for specific names has been approved by our courts. See Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977). Redacting testimony is not a magic curative elixir, but still requires a court to balance the potential prejudice to the defendant against the probative value of the evidence, the possibility of minimizing prejudice, and the benefits to the criminal justice system of conducting joint trials. Redacted testimony may still violate the Bruton rule if it is “powerfully incriminating” and lends “ ‘substantial, perhaps critical weight’ to the prosecution’s ease.” Commonwealth v. Rawls, 276 Pa.Super. 89, 97, 419 A.2d 109, 113 (1980).

Oliver, 431 Pa.Super. 6, 635 A.2d at 1044-1045; see also, Wharton, supra, 530 Pa. 127, 607 A.2d 710.

Appellant contends that the redacted confessions of his co-defendants clearly implicated him in the robberies, and that the judge could easily “fill in the blanks in the redacted testimony and thus could not help but use the testimony in assessing [his] guilt.” Oliver, 431 Pa.Super. 8, 635 A.2d at 1045; see also, Wharton, 530 Pa. 143, 607 A.2d at 718. Unfortunately for appellant, as previously stated, we find that the evidence against him which was wholly unrelated to the redacted confessions was overwhelming, and, thus, appellant was not prejudiced in a manner which would warrant separate trials. Cf., Commonwealth v. Bond, 539 Pa. 299, 312-313, 652 A.2d 308, 313-314 (1995) (where evidence of defendant’s guilt, including defendant’s own confession, is overwhelming, prejudice from redacted portions of co-defendant’s confession was minimal and did not warrant new trial); Wharton, supra, 530 Pa. 127, 607 A.2d 710 (while acknowledging a possible violation of the Bruton rule, court held that any violation was harmless in light of overwhelming evidence of defendant’s guilt). Since counsel cannot be held ineffective for failing to raise meritless claims, we find that counsel was not ineffective for failing to object to the admission of the redacted confessions and for failing to move for a severance.

Judgment of sentence affirmed.

      . Appellant also received consecutive sentences of five to twenty years for two of the six robbery convictions and five to ten years for the aggravated assault. In addition, appellant received concurrent sentences for his two criminal conspiracy and two possession of an instrument of crime convictions.

      . We note that two of appellant’s co-defendants raised this same issue in their appeals, and, consistent with our decision herein, we found that it was not error to try the two sets of separate indictments at one time. Commonwealth v. Rivers, No. 3689 Philadelphia 1992, and Commonwealth v. Johnson, No. 3577 Philadelphia 1992 (filed January 28, 1994), slip op. at 6-9.

      . Moreover, appellant was tried by a judge, not a jury, and, therefore, the problems associated with a jury’s improper use of a redacted confession which were addressed in Bruton, supra, 391 U.S. 123, 88 S.Ct. 1620, are not present in this case.


author: HESTER, Judge:

text:
    660 A.2d 614
    COMMONWEALTH of Pennsylvania v. Anthony Spence WILLIAMS, Appellant.
    Superior Court of Pennsylvania.
    Submitted April 17, 1995.
    Filed June 15, 1995.

      Anthony S. Williams, appellant, pro se.

      Robert L. Steinberg, Dist. Atty., Allentown, for Com., appellee.
    Before HUDOCK, SAYLOR and HESTER, JJ.
   HESTER, Judge:

Anthony S. Williams appeals pro se from the March 14,1994 order denying him PCRA relief. We hold that three of appellant’s issues can be entertained in this second post conviction proceeding. Those issues include one raising a claim of innocence, one involving an allegation that appellant’s plea agreement was breached which would constitute a manifest injustice that no civilized society could tolerate, and one involving the legality of appellant’s sentence. However, in examining the merits of those three claims, we have determined that there is no genuine issue of material fact and that appellant is not entitled to PCRA relief. Accordingly, we affirm denial of appellant’s second PCRA petition without a hearing.

Appellant was charged with one count each of attempted murder, theft, receiving stolen property, aggravated assault, and conspiracy and with three counts of robbery. On May 6, 1985, appellant tendered a nolo contendere plea to one count of robbery and one count of conspiracy. The record indicates that the Commonwealth, through the testimony of the victim, would have established the following:

[O]n October 15th, 1983, [at] approximately 2:15 in the morning hours, the victim in this case, an Anthony Parker, was at the intersection of Seventh and Chew.
He had made a phone call, and then he had proceeded over to the Friendly Tavern....
And a car pulled up over by the phone booth.... The car pulled up and .... there [were] two people in it, the passenger, which was the Defendant and a driver.
They yelled over does anyone know where we can get some smoke? The victim went over to the car and said, I think I know where I can get some smoke. And he said can you give me a lift, I’ll give you some money.
The occupants in the car then said how much money do you have? Let me see it. The victim then showed him the money he had in his pocket, four 20’s, $80. They then let him into the car.
They were going to proceed down to the NCA Club at the 300 block of Ridge Avenue....
So then as soon as the victim in this case got into the back seat of the car, Your Honor, the car made a quick right into Pollard’s lot.
At that time the passenger, who was [appellant] pulled out a gun, a .38 caliber gun, pointed it at the victim in this case, who was in the back seat. And they said give me your money.
At that time the victim didn’t want to give up his money. He was saying it’s my mother’s money, it’s whatever. He didn’t want to give it up.
[Appellant] and the driver then rustled through his pockets. They took some Hershey Park coins, Timesaver card, and also sunglasses that were in the jacket of the victim.
And he was fighting with him. He didn’t want to give up his money. Then after a few moments the car pulled back out onto Seventh Street, went down Seventh Street, over the Eighth Street Bridge.
The victim Anthony Parker figured they were going to take him down and dump him into Trout Creek and shoot him....
At that time he then kicked the seat of the car up onto [appellant] and grabbed the hand that had the gun in it____ [T]he gun then went off. A bullet was lodged in the roof of the vehicle____
Mr. Parker was kicking at [the driver] while at the same time wrestling with the gun and which was being held by the Defendant in this case. While they were wrestling again the gun went off again and blew out the right passenger side window.
[T]he victim ... then climbed out through the window.... [H]e was in a hysterical mood or state of mind ... as the first bullet that went off grazed his temple area....
Mr. Richard Troxell ... had heard the two shots. He came out, saw Tony was in hysterics and bleeding profusely from the head and hand, grabbed him, took him into the house.
He gave him a towel for his head ... and then called the police....
[Police] had a description of the car. And they also had a description of the Defendant from this incident and other incidents that occurred.
[After appellant was arrested,] he gave a statement to Detective Stevens.... [H]e said he had borrowed the car from Bob in New York, that he thought it to be stolen.
He went to the K-Mart lot to buy cigarettes on Wednesday night. This would have been October 12th, 1983. Two men that he didn’t get a look at put a gun to his head and took his car. They then shot out his window.
Yesterday he found the car parked on a lot right by where he was living. And he never did try to call police because he was intimidated. And he said the car was gone for six days____

Notes of Testimony (“N.T.”), 5/6/85, at 27-32.

On July 22,1985, appellant was sentenced to seven and one-half to twenty years imprisonment. Appellant filed an appeal to this court, which was dismissed based on the failure to file a brief. Dismissal was without prejudice to appellant to pursue a post conviction petition raising the same issues. The Supreme Court denied review, again without prejudice to appellant’s post conviction rights.

On January 7, 1987, appellant filed a pro se petition under the now-repealed Post Conviction Hearing Act. Counsel was appointed and eventually filed an amended petition. On September 8, 1989, a hearing was held, and a second hearing was scheduled on November 14, 1989, since testimony was not complete. At the November 14, 1989 hearing, appellant withdrew his PCHA petition and the supplemental, counseled petition.

On November 27, 1989, appellant filed a pro se petition to reinstate the prior petitions which he had voluntarily withdrawn at the November 14, 1989 hearing. The November 27, 1989 petition was denied on January 16, 1990. Appellant appealed the January 16, 1990, but that appeal also was dismissed.

Appellant then filed on January 16, 1992, and January 21, 1992, respectively, a post conviction petition and supplemental post conviction petition. The petitions were denied based on the fact that appellant no longer was in custody. We reversed, noting that appellant was serving parole which rendered him eligible for post conviction relief, and we remanded for consideration of the merits of the 1992 petitions. See 42 Pa.C.S.A. § 9543(a)(l)(i). A hearing was scheduled, and both appellant and his appointed counsel failed to appear at the hearing. The January, 1992 petitions then were dismissed, and this pro se appeal followed.

Appellant alleges that he was unable to attend the hearing on the January, 1992 petitions because he could not secure permission from his New York parole officer. He also alleges that he told counsel to appear. Appellant contends that this latest dismissal is a violation of our prior order.

We first note that the January, 1992 petitions initiated appellant’s second post conviction proceeding. Appellant’s first post conviction proceeding occurred in 1987, when he filed a PCHA petition, withdrew it, moved to reinstate it, appealed denial of reinstatement, and the appeal was dismissed.

With this in mind, we examine the issues raised in the 1992 petitions. In those petitions, appellant alleged: 1) the plea agreement was not adhered to by the district attorney; 2) the Commonwealth lacked jurisdiction to prosecute him since he could not be identified as the perpetrator; 3) his sentence was excessive since it was two and one-half times that recommended in the sentencing guidelines; 4) his speedy trial rights were violated; 5) he was not informed of the elements of the offenses to which he was entering a nolo contendere plea; 6) his plea was induced unlawfully by promises of a lesser sentence; 7) appellant was given inaccurate information about the maximum possible sentence; and 8) his sentence was unlawful since it included a deadly weapon enhancement imposed pursuant to sentencing guidelines which were invalidated by the Pennsylvania Supreme Court.

To be eligible for relief under the PCRA, a PCRA petitioner must plead and prove the existence of four factors. 42 Pa.C.S. §§ 9543(a)(1), (a)(2), (a)(3), and (a)(4). We examine the third one first. Under section 9543(a)(3)(i) a PCRA petitioner must establish that the issues have not been waived. Waiver is defined in section 9544(b) which provides in relevant part, “[A]n issue is,waived if the petitioner failed to raise it and if it could have been raised ... on appeal ... or in a prior proceeding actually initiated under this subchapter.” (Emphasis added). Since all of appellant’s issues could have been raised both on direct appeal and in the 1987 proceedings initiated under the prior post conviction proceeding act, they have been waived under section 9544(b).

Appellant nevertheless will be eligible for relief under the PCRA if one of the two exceptions to waiver contained in section 9543(a)(3) applies. Section 9543(a)(3) provides that an allegation of error that has been waived can be entertained under two conditions:

(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.

42 Pa.C.S. § 9543(a)(3).

Since these are appellant’s second post conviction proceedings, Commonwealth v. Ryan, 394 Pa.Super. 373, 575 A.2d 949 (1990), provides that 42 Pa.C.S. § 9543(a)(iii) does not apply. In Ryan, we held:

In the present case, appellant could have raised all of the issues presented herein in his prior PCHA petition. Accordingly, the issues have been waived under section 9544. The waiver in this instance results from appellant’s failure to raise the issues in his prior post conviction proceedings. Since the waiver was not during pretrial, trial, post-trial or direct appeal proceedings, section 9543(a)(3)(iii) is not applicable. Accordingly, appellant has waived the issues presented herein unless 9543(a)(3)(h) applies.

Id., 394 Pa.Super. at 378, 575 A.2d at 951.

Furthermore, our Supreme Court recently has provided guidance on proper interpretation of the PCRA waiver provisions, and its decision provides support for the decision in Ryan. Commonwealth v. Christy, 540 Pa. 192, 656 A.2d 877 (1995). Christy involved the defendant’s first petition for post conviction relief, and the Court interpreted section 42 Pa.C.S. § 9543(a)(3). It announced that an allegation that prior counsel was ineffective for faffing to raise an issue will overcome the waiver provisions of the PCRA as long as the appellant had a constitutional right to counsel at the stage in the state proceedings where counsel’s ineffectiveness resulted in the waiver. Since a defendant has a right to counsel at trial and on direct appeal, the Court held that ineffective assistance of counsel will excuse waiver as to claims of ineffectiveness of counsel at trial and on direct appeal. It also observed that there is no constitutional right to counsel in a state collateral proceeding. Thus, if waiver results from prior counsel’s stewardship in a post conviction proceeding, waiver is not overcome under section 9543(a)(3)(iii), and the defendant must meet the standard announced in section 9543(a)(3)(h).

Section 9543(a)(3)(h) applies only to issues relating to a defendant’s innocence. Commonwealth v. Dukeman, 413 Pa.Super. 397, 605 A.2d 418 (1992).

The waiver provisions of the PCRA must be interpreted concurrently with our Supreme Court’s pronouncement in Commonwealth v. Lawson, 519 Pa. 504, 549 A.2d 107 (1988). See Commonwealth v. Ryan, supra, 394 Pa.Super. at 376, 575 A.2d at 950-51, where we applied Lawson to PCRA proceedings and stated:

[SJince this is appellant’s second petition for post-conviction relief, it “will not be entertained unless a strong prima facie showing is offered to demonstrate that a miscarriage of justice may have occurred.” Commonwealth v. Lawson, 519 Pa. 504, 513, 549 A.2d 107, 112 (1988); see also Commonwealth v. Blackwell, 384 Pa.Super. 251, 558 A.2d 107 (1989) (applying Lawson standard of review to second or subsequent petitions filed under the PCRA). This standard is met if the petitioner can demonstrate either that the proceedings resulting in his conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred or that he is innocent of the criminal charges.

Under this case law, in a second or subsequent post conviction proceeding, all issues are waived except those which implicate a defendant’s innocence or which raise the possibility that the proceedings resulting in conviction were so unfair that a miscarriage of justice which no civilized society can tolerate occurred. There also is a third exception to the waiver provisions: issues involving the legality of a sentence since those types of issues never may be waived. Commonwealth v. Yount, 419 Pa.Super. 613, 615 A.2d 1316 (1992) (legality of sentence issue considered in third post-conviction proceeding); see generally Commonwealth v. Shannon, 530 Pa. 279, 608 A.2d 1020 (1992); Commonwealth v. Anderson, 434 Pa.Super. 309, 643 A.2d 109 (1994).

Some of appellant’s claims do not meet these standards. Those claims include that appellant was not informed of the elements of the crimes to which he pled nolo contendere, his speedy trial rights were violated, the sentence imposed was an abuse of discretion, and the sentence imposed exceeded the guidelines. These allegations neither relate to appellant’s innocence nor do they raise the possibility that the proceedings were so unfair that his conviction resulted from a miscarriage of justice which no civilized society could tolerate. Therefore, they will not be entertained herein.

However, appellant’s allegation that he could not be identified as the perpetrator does raise a colorable issue relating to his innocence and will be entertained on the merits. Nonetheless, we conclude that it is absolutely refuted by the record of his plea. The victim survived the attack and identified appellant as the perpetrator. Indeed, appellant admits that the victim identified him at the preliminary hearing. Furthermore, this allegation actually relates to the sufficiency of the evidence that would have been presented against appellant at trial. It is established that any issue relating to the sufficiency of the evidence is waived by entry of guilty plea and is not subject to attack in a post conviction proceeding. Commonwealth v. Martinez, 372 Pa.Super. 202, 539 A.2d 399 (1988) (after entry of guilty plea, in a post conviction setting, only cognizable issues relate to validity of the plea and legality of the sentence). Thus, there is no issue of genuine fact that appellant is not entitled to PCRA relief on the basis of this claim.

Three of appellant’s issues are related. These include the allegations that the prosecutor failed to abide by the terms of the plea agreement, that he was promised a lesser sentence than the one which he received, and that he never was informed of the sentence he might receive prior to pleading nolo contendere. Certainly, if the prosecutor failed to adhere to the terms of the plea agreement, this would provide grounds for PCRA relief as it would be a miscarriage of justice for a person to relinquish cherished constitutional rights based on a promise that was not kept. See generally Commonwealth v. Daniels, 440 Pa.Super. 615, 656 A.2d 539 (1995) (if prosecutor fails to abide by the terms of a plea agreement, defendant must be allowed to withdraw his plea). Thus, we will entertain the allegation that the plea agreement was breached in that appellant did not receive his promised sentence and was not informed of the sentence he would receive prior to tendering his plea. We examine the record of appellant’s plea colloquy to determine the merits of this claim. The plea agreement was as follows:

MR. WALDRON: Your Honor, this is Case No. 1694 of 1983, Commonwealth v. Anthony Spencer Williams. Anyone in the courtroom at all that has anything to do with this case, please come forward.
Your Honor, this is going to be a nolo contendere plea to Count No. II, robbery as a felony one, nolo contendere to Count number VIII, conspiracy to commit robbery as a felony one.
In addition, Your Honor, we would ask for the Deadly Weapon Enhancement. And there’s no agreement as to concurrency here, Your Honor. We would leave that as the concurrency or consecutiveness up to Your Honor.
MR. BRUNNABEND: We should make it clear the Commonwealth is not taking any position and will not argue for any consecutive sentence at this point. And we’d also make it clear as far as the Deadly Weapon Enhancement that it’s not the mandatory sentence for any weapon.
THE COURT: It’s 12 plus 24, not the 5 year.
MR. WALDRON: That’s correct.

N.T., 5/6/85, at 2-3. Thus, the agreement was that appellant would tender an open plea of nolo contendere to robbery and conspiracy, graded as felonies of the first degree, and in exchange, the Commonwealth nol prossed attempted murder, theft, receiving stolen property, aggravated assault, and two counts of robbery. The Commonwealth also indicated that while it would seek a deadly weapon enhancement, it promised that it would make no other sentencing recommendations. This was reiterated when the district attorney stated that “the Commonwealth has not promised the Defendant anything regarding sentence, length of sentence, months, years.” Id. at 11. The Commonwealth abided by this agreement at sentencing and made no sentencing recommendation asking only that the enhancement be applied., N.T., 7/22/85, at 3-4.

Furthermore, appellant pled nolo contendere knowing that he was entering an open plea and could receive a sentence of up to twenty years in prison in addition to the twelve to twenty-four month enhancement for deadly weapons:

THE COURT: We want Mr. Williams to understand that in entering this plea that what we intend to do is we will order a presentence investigation and report so we can learn as much as we possible can about you and about what happened here.
And then on a given day you will come back here, and the Court has the power to sentence you. I don’t know what that sentence is going to be because we’ll have to study that report, everything that we hear, understand?
But the Court has the power to sentence you to a sentence of 10 to 20 years on the robbery charge. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: Now, on the offense of conspiracy to commit robbery, 10 to 20 years. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And there is a what is known under the law as a Deadly Weapon Enhancement. That is, the Court has the power to sentence you to an additional 12 to 24 months. Do you understand that?
THE DEFENDANT: Twelve to twenty-four months.

N.T., 5/6/85, at 6-7.

There is no doubt that several times during the colloquy, appellant told the court that he expected to receive a sentence of twelve to twenty-four months imprisonment. However, the court made absolutely clear that that was not going to happen, informing appellant repeatedly that he was tendering an open plea of nolo contendere to the charges and that he could receive a sentence of up to twenty years imprisonment. N.T., 5/6/85, at 11, 14. The plea court also stated clearly that if appellant did not understand this or did not want to plead nolo contendere under the circumstances, appellant could proceed to trial that afternoon. Id. at 40. Appellant conferred twice with his attorney so that the attorney could explain precisely what the court meant. Id. at 16, 60. After the court determined that appellant graduated from high school and understood the sentencing possibilities, appellant’s plea of nolo contendere was accepted. Id. at 26, 39-40. Appellant was sentenced to seven and one-half to twenty years imprisonment. Accordingly, there is no genuine issue of material fact in that the record establishes the plea agreement was not breached, appellant did know the sentence he possibly could receive, and appellant was not promised any sentence other than one that was less than twenty years imprisonment, which he received.

Appellant also alleges that his sentence was unlawful since it included a deadly weapon enhancement struck down by our Supreme Court in Commonwealth v. Sessoms, 516 Pa. 365, 532 A.2d 775 (1987). Appellant is not entitled to relief on this basis since our Supreme Court announced that the ruling in Sessoms could be applied only if the issue properly was preserved at all stages of the proceeding, including in the trial court. Id., 516 Pa. at 380 n. 2, 532 A.2d at 782 n. 2. Thus, Sessoms will not be applied in this collateral proceeding.

Furthermore, prior counsel’s actions in failing to raise this issue in the trial court and on direct appeal will not be deemed to be ineffective assistance. It is axiomatic that counsel will not be found ineffective for failing to predict a change in the law and in failing to preserve an issue that is not meritorious under the law in effect when counsel’s action occurred. Commonwealth v. Christy, 540 Pa. 192, - , 656 A.2d 877 (1995); Commonwealth v. Pizzo, 529 Pa. 155, 602 A.2d 823 (1992); Commonwealth v. White, 515 Pa. 348, 528 A.2d 596 (1987); Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Rowe, 411 Pa.Super. 363, 601 A.2d 833 (1992). Appellant was sentenced two years prior to the ruling in Sessoms.

Since appellant’s allegations are refuted by the record, there are no genuine issues concerning any material fact, and appellant is not entitled to PCRA relief, we affirm the trial court’s j dismissal of the 1992 petitions without a hearing. Commonwealth v. Banks, 540 Pa. 143, -, 656 A.2d 467 (1995); Pa.R.Crim.P. 1507.

Order affirmed.

      . A plea of nolo contendere is treated in the same manner as a guilty plea in terms of its effect upon a particular case. Commonwealth v. Jackson, 376 Pa.Super. 433, 546 A.2d 105 (1988); Commonwealth v. Thomas, 351 Pa.Super. 423, 506 A.2d 420 (1986).