author: OPINION BY BECK, Judge:

text:
      570 A.2d 1338
    COMMONWEALTH of Pennsylvania v. Thomas W. JONES, Appellant.
    Superior Court of Pennsylvania.
    Argued August 15, 1989.
    Filed March 8, 1990.
    Reargument Denied May 2, 1990.

      Robert L. Hickok, Philadelphia, for appellant.
    Frances G. Gerson, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   OPINION BY BECK, Judge:

Appellant, Thomas W. Jones, was tried and convicted by a jury of first degree murder , robbery, and possession of an instrument of crime. After a sentencing hearing immediately following the trial, the jury elected to sentence appellant to death. Post-verdict motions were denied and appellant took a direct appeal to the Supreme Court. The Supreme Court remanded to the trial court for an evidentiary hearing on the allegations of ineffectiveness of counsel. On the basis of evidence adduced at the remand hearing, the judge found ineffective assistance of counsel at the penalty phase only of the original trial. As a result of that finding, the Supreme Court granted appellant’s request for extraordinary relief and ordered that the death penalty be vacated and a life sentence imposed, 520 Pa. 68, 550 A.2d 536. It is from the imposition of this life sentence which appellant now appeals. In his appeal to this court appellant raises numerous allegations of error which he claims entitle him to a new trial. We find his claims to be without merit and affirm the judgment of sentence.

The evidence which formed the basis for the convictions of first degree murder and related charges is as follows. Appellant Jones, who at the time of the crime was twenty years old, was involved in a short-lived homosexual liaison with the victim, fifty-three year old Herbert Wenger. On the night Wenger was murdered, Friday, January 15, 1982, he and Jones entered Wenger’s apartment just after midnight. Not long afterward, Wenger’s upstairs neighbor was awakened by a sharp, loud noise which was followed by the muffled sound of voices. One of the voices protested “no” and “stop” and then another sharp retort rang out. After that there was silence. No one was seen leaving Wenger’s apartment but later that night Wenger’s 1978 Oldsmobile, in which he and appellant had arrived, was gone.

For days Wenger’s friends tried unsuccessfully to contact him. Finally, on Tuesday morning January 19, Emil Fox contacted the police, alarmed that Wenger was missing especially since Fox was supposed to drive him to the airport that morning to begin a vacation. Fox and the police entered Wenger’s apartment to find him dead in the bathtub. Wenger had been shot twice with a .25 caliber gun. One bullet hit Wenger at the base of his neck, travelled downward and lodged in his spine. The other shot was through his head. Missing from Wenger’s apartment, in addition to his car, were his wallet, driver’s license and all of his keys. Wenger’s assailant apparently had taken Wenger’s keys and locked him into the apartment, for the dead bolt lock had been secured from the outside and no keys were found inside the apartment. Appellant’s wallet containing identification and a photograph of appellant was found in Wenger’s living room.

Meanwhile, the night after the murder, appellant drove Wenger’s car to a convenience store where he attempted to sell a .25 caliber gun to the store manager, James Green. Green, who was acquainted with appellant, commented that the weapon was “dirty” to which appellant replied, “Yeah, I just fired it the other day”. Green refused to purchase the gun. At the same time, appellant solicited Green’s help in opening the gas cap to the stolen Oldsmobile because he apparently was unfamiliar with its operation.

About four days after the killing, on the day the police discovered Wenger’s body, appellant was involved in a minor automobile accident with! a Sears repair truck. When the driver of the truck attempted to exchange identification and other information with appellant, appellant at first evaded the issue and then hurriedly left the scene without providing the requested information. The driver of the Sears truck copied the license number and called the police.

That evening the police, having been alerted that the car was stolen in connection with a homicide, spotted appellant driving the Oldsmobile home. He was stopped and arrested in front of his house. The trunk and gas cap keys were in appellant’s pocket along with the vehicle’s registration in Wenger’s name. Later that night, appellant gave a statement to the police acknowledging having been with Wenger on the night of the murder but denying any connection to Wenger’s death. He insisted that Wenger, with whom he admitted being “sexually involved”, had loaned him the car for his birthday, January 16, the day following the murder. Appellant further stated that he tried to reach Wenger after the accident with the Sears truck and even “went around his house” but couldn’t get in because Wenger “never gave [him] a key”.

Later the same night police obtained a search warrant for appellant’s home which was executed at 2 A.M. Inside appellant’s bedroom the police found the two front door keys to Wenger’s apartment, Wenger’s driver’s license, credit cards, other forms of identification and a safe deposit box key belonging to Wenger. Wenger’s wallet and other credit cards had been found earlier in the glove compartment of the stolen car. Thereafter the police arrested appellant for the murder of Herbert Wenger.

Appellant makes the following claims of error which we will address in order: 1) trial counsel had a conflict of interest which deprived appellant of effective assistance of counsel; 2) the evidence was insufficient to sustain the convictions for first degree murder and robbery; 3) the trial court impermissibly restricted the voir dire of prospective jurors; 4) the prosecutor was guilty of misconduct during his closing argument; 5) the trial court gave the jury several erroneous instructions on the law; and 6) the trial court erred in denying appellant’s motion to suppress evidence. We find that none of these claims entitles appellant to relief.

With respect to appellant’s first claim of error, i.e. that he was denied the effective assistance of counsel because of an alleged conflict of interest on the part of his trial attorney, we find that this issue has not been preserved for appellate review. Appellant alleges that trial counsel had a conflict of interest which prejudiced his handling of appellant’s homicide case because appellant’s trial counsel had previously represented appellant’s brother-in-law in an assault case in which the brother-in-law was accused of shooting appellant in a family-based dispute. Apparently, trial counsel had been hired by the family to represent the brother-in-law in the assault case (in which appellant was the complainant) and later also was hired to represent appellant in this pending but wholly unrelated murder prosecution. Because appellant was reluctant to proceed against a family member, the charges against the brother-in-law were nol prossed about three months prior to the beginning of appellant’s homicide trial.

After the conclusion of the murder trial and after imposition of the death penalty, trial counsel was replaced by post-verdict counsel who prepared and argued post-verdict motions and also represented appellant in his original direct appeal to the Supreme Court. The ineffectiveness of trial counsel based on an alleged conflict of interest was not raised by post-verdict counsel in any form whatsoever. Appellant does not dispute this fact. The issue of a conflict of interest was raised for the first time by remand counsel during the evidentiary hearing before the remand court. Remand counsel asserted trial counsel’s ineffectiveness, but failed to raise post-verdict counsel’s ineffectiveness. Appellant was represented by different lawyers during trial and at the post-verdict stage. The Commonwealth argued at that time to the remand court and continues to argue to this court that under these circumstances the issue of conflict has been waived. We agree.

A claim of ineffective assistance of counsel must be raised at the earliest stage in the proceedings at which counsel whose effectiveness is being challenged no longer represents appellant. See, e.g., Commonwealth v. Cargo, 498 Pa. 5, 444 A.2d 639 (1982); Commonwealth v. Seachrist, 478 Pa. 621, 387 A.2d 661 (1978); Commonwealth v. House, 371 Pa.Super. 23, 537 A.2d 361, 363 (1988). Here, new counsel entered an appearance at the post-verdict stage and was therefore required to raise any claim of previous counsel’s ineffectiveness in order to preserve it for review. Commonwealth v. House, 537 A.2d at 363. While trial counsel’s ineffectiveness was asserted with respect to voir dire and the penalty phase of appellant’s trial, post-verdict motions did not address the particular contention at issue here. As such, that issue cannot be considered on appeal. Commonwealth v. Quarles, 361 Pa.Super. 272, 279, 522 A.2d 579, 582, appeal denied, 517 Pa. 592, 535 A.2d 82 (1987).

In fact, appellant does not even claim that the conflict of interest was raised in a timely fashion below. Instead, he asks this court to address the merits of the claim despite the failure to have raised it at the post-verdict stage based on three arguments. First, appellant claims that the Supreme Court, in its remand order, specifically directed us to hear “those issues which were presented in the initial appeal and were not considered, as well as any other issues that may be deemed appropriate for review.” From the underscored language appellant argues that somehow he has been granted an expanded right to appeal unpreserved issues by the Supreme Court. We think this is an unwarranted interpretation of the remand order. We can only conclude that issues “appropriate for review” are those issues which have been properly preserved for our review under traditional and established concepts of waiver and preservation. Therefore, appellant cannot look to the remand order to carve out an exception to the application of ordinary standards of appellate review.

Next appellant argues that the first “real” opportunity to present the issue of conflict of interest was at the remand stage because there was no evidence that post-verdict counsel knew of the conflict in order to argue it. This contention begs the question. Nothing in the record explains why the conflict could not have been known as easily by post-verdict counsel as by remand counsel. Appellant, his family, and trial counsel were the sources of information necessary to develop any argument regarding an assertion of a conflict of interest. Presumably, these sources were as available to post-verdict counsel as they were to remand counsel. In any event, nothing in the record indicates otherwise and we refuse to engage in guesswork.

Finally, appellant argues that the remand court addressed the issue of ineffectiveness based on the asserted conflict of interest and therefore the issue is preserved. We cannot agree. The remand court’s decision to consider the conflict claim despite the Commonwealth’s assertion of waiver does not alter our conclusion that the complaint was untimely and has not been preserved. Cf. Commonwealth v. Heckman, 366 Pa.Super. 224, 530 A.2d 1372 (1987); Commonwealth v. Philpot, 491 Pa. 598, 421 A.2d 1046 (1980).

Next appellant argues that the evidence at trial was insufficient to sustain the murder and robbery convictions. With respect to the first degree murder conviction appellant’s primary contention is that the Commonwealth failed to prove specific intent to kill, a necessary element of first degree murder, beyond a reasonable doubt. This argument is meritless.

The test to be applied in evaluating the sufficiency of the evidence is whether, viewing all the evidence admitted at trial, together with all reasonable inferences which can be drawn therefrom, in the light most favorable to the Commonwealth, the jury could have found that each element of the offense was proven beyond a reasonable doubt. Commonwealth v. Jackson, 506 Pa. 469, 485 A.2d 1102 (1984); Commonwealth v. Toledo, 365 Pa.Super. 224, 529 A.2d 480 (1980). Moreover, specific intent to kill, like other elements of a crime, may be established solely by circumstantial evidence. See Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Culbreath, 439 Pa. 21, 264 A.2d 643 (1970).

In Pennsylvania, first degree murder is defined as an “intentional killing”. 18 Pa.Cons.Stat.Ann. § 2502(a) (Purdon 1983). An “intentional killing” is a “[k]illing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.Cons. StatAnn. § 2502(d) (Purdon 1983). Finally, a killing is “willful, deliberate, and premeditated if it is committed by one who is conscious of his own purpose and intends to end the life of his victim.” Commonwealth v. Stewart, 461 Pa. 274, 279, 336 A.2d 282, 285 (1975) (footnote omitted). Whether or not the assailant intended to end the life of his victim can be proven by the circumstances of the event, for rarely is the killing accompanied by a direct statement of intent by the defendant. Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330 (1987). One of the most commonly recognized circumstances from which the jury can infer a specific intent to kill is the use by the defendant of a deadly weapon on a vital part of his victim's body. See, e.g. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987); Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Crowson, 488 Pa. 537, 412 A.2d 1363 (1979). As the Supreme Court has emphasized: “[I]f a deadly force is knowingly applied by the actor to the person of another, the intent to take life is as evident as if the actor stated the intent to kill at the time the force was applied.” Commonwealth v. Harvey, 514 Pa. 531, 538, 526 A.2d 330, 334 (1987).

In the instant case, appellant does not, nor reasonably could he, argue that the Commonwealth failed to prove that it was he who took the life of Herbert Wenger. Instead he contends that the evidence was equally consistent with a “tempestuous quarrel between gay lovers” and therefore no specific intent to kill can be drawn from the fact that the Commonwealth proved that appellant shot his victim once through the base of his neck and then again directly through the head. Contrary to appellant’s argument, we conclude that there is absolutely nothing in the record to negate the inference of a specific intent to kill. We decline to impute “passion” to the killing, as appellant suggests, merely because the decedent and the defendant were sexually involved. There was absolutely no evidence of a struggle or of the “quarrel” to which appellant alludes. The reasonable inference from the testimony is that appellant shot the unarmed Wenger first through the base of his neck and that following this shot Wenger said “no” and asked appellant to “stop”. Appellant responded to this by shooting Wenger a second time through the head. The jury reasonably could infer that the “angry”, “loud” voices that Wenger’s upstairs neighbor overheard after she was awakened by what can only be assumed to be a gunshot, were the product of Wenger’s realization that appellant was about to take his life. In fact, despite appellant’s contention, no contrary inference can be drawn on this record.

Appellant also contests the sufficiency of the evidence to support his robbery conviction. Robbery is committed if, in the course of committing a theft, a person physically removes property from another by force. 18 Pa.Cons.Stat.Ann. § 3701; Commonwealth v. Brown, 506 Pa. 169, 484 A.2d 738 (1984). In this case the jury heard evidence from which it could conclude that appellant shot and killed the victim and took his wallet, credit cards, identification, house keys, car keys, car and safe deposit box keys. From this the jury could have found every essential element of robbery proven beyond a reasonable doubt. The case upon which appellant relies to suggest the opposite, Commonwealth v. Simpson, 436 Pa. 459, 260 A.2d 751 (1970), is wholly inapplicable. In Simpson, the evidence was that the defendant was seen leaving a used car lot to test drive a car with the victim. The victim was never seen nor heard from again and was eventually discovered months later. When the victim was finally found his body was badly decomposed. The medical examiner could find no traces of trauma nor could the cause of death be determined. In fact, death by natural causes could not be ruled out. Under these circumstances the Supreme Court in Simpson concluded that “if a dead body is to be used as the only evidence to establish a taking by violence ... [death] must ... be consistent with a violent act.” 436 Pa. at 465, 260 A.2d 751. Since the evidence in Simpson could not show that the defendant employed violence, the robbery conviction was overturned. Obviously the same cannot be said in the instant case. It is beyond dispute that appellant employed “violence” to accomplish the taking here and his conviction for robbery was sustained by ample evidence.

Appellant’s next allegation on appeal is that the trial court improperly restricted voir dire. Specifically he claims that the trial court disallowed certain questions by defense counsel which would have probed prospective jurors’ bias on race and homosexuality. Appellant contends that greater latitude in voir dire was necessary because the instant case involved a black defendant and a white victim who were in a homosexual relationship. We have carefully examined the record and conclude that the trial court properly and thoroughly conducted voir dire.

The purpose of voir dire is to ensure a fair, competent, impartial and unprejudiced jury. See, e.g., Commonwealth v. White, 366 Pa.Super. 538, 531 A.2d 806 (1987); Commonwealth v. Hamm, 325 Pa.Super. 401, 473 A.2d 128 (1984). However, the scope to be allowed each party in exploring the possible biases which may bear on the impartiality of jurors is a matter which rests in the sound discretion of the trial court. Commonwealth v. Richardson, 504 Pa. 358, 473 A.2d 1361 (1984). Absent palpable error, a trial court’s decision in this regard will not be disturbed. Commonwealth v. Merrick, 338 Pa.Super. 495, 488 A.2d 1 (1985). We are persuaded that, given this standard, the trial court in no way abused its discretion.

In support of his argument that voir dire was impermissibly restricted, appellant attempts to characterize this as a “racially sensitive” case. As a result, he contends, the trial court should have allowed greater than usual latitude in probing racial bias. However, we find nothing in the record of this case to support the notion that it was racially sensitive. Our Supreme Court has held that a prosecution cannot be characterized as racially sensitive for purposes of voir dire inquiry by the mere fact that the defendant is black and the victim is white. Commonwealth v. Richardson, 504 Pa. at 362, 473 A.2d at 1363. Race was not a factor emphasized in the evidence by either side in the instant case. More importantly, on the issue of race as well as on the issue of possible prejudice stemming from the fact that homosexual activity was referred to in the case, the trial court both permitted and asked numerous questions probing bias on these points with all the prospective jurors. Defense counsel repeatedly explored the impact that the defendant’s race and sexual preference might have on the impartiality of potential jurors. He was permitted to ask each juror whether appellant’s homosexuality would prejudice him or her. In addition, the trial court also assured itself through extensive questioning that the issues of homosexuality and race bias would not impact on the decision-making process. Compared to the wide latitude the trial court did allow defense counsel, the few instances wherein he restricted questions probing the jurors’ personal viewpoints on the morality of homosexuality hardly constituted an abuse of discretion. The trial court’s obligation to see that appellant was tried by an impartial jury was fulfilled by the scope of voir dire he allowed.

Appellant also asserts that the trial court committed reversible error by permitting a line of questioning concerning the fact that Herbert Wenger was known by his friends and neighbors to be fastidious and protective in the care and use of his car. Appellant cannot prevail on these arguments which have either been waived or are wholly without merit.

At trial the Commonwealth called as witnesses several friends and neighbors of Herbert Wenger who testified to his disappearance and the discovery of his body, as well as to certain other aspects of his personal life. The first such witness was Wenger’s upstairs neighbor, Mary Francis Carolan, whose testimony covered the sounds and activities she observed the night of Wenger’s murder. After establishing that Carolan had been the upstairs tenant in Herbert Wenger’s house for three to four years and that during that time Wenger had consistently parked his car outside their front door, the prosecutor asked Carolan whether she had ever known Wenger to loan his car to anyone. Carolan replied that he was very “particular” with his “things”, especially his car. This line of questioning was never objected to by defense counsel and any objection to it was thereby waived. Moreover, when the Commonwealth pursued a similar line of inquiry with other close friends of the decedent, and defense counsel did object, the trial court properly overruled the objections. These witnesses were testifying from long-time personal experience and observation of the decedent and his habits and the testimony elicited cannot be characterized as “hearsay”. Furthermore, defense counsel was permitted on cross-examination to attempt to undo the impact of their testimony by having the same witnesses admit that although they personally had never seen Wenger loan his automobile to anyone, he may have deviated from his policy on occasions of which they were not aware. The trial court did not err in connection with this testimony.

Appellant further complains that he is entitled to a new trial because the prosecutor engaged in improper and prejudicial argument during his closing argument. The specific contention is as follows. At trial the medical examiner introduced evidence that one of the bullets that hit Wenger on the night he was killed entered his body where his shoulder adjoins his neck and travelled downward to eventually lodge in his spine. Both defense counsel and prosecutor sought to explain the trajectory of the bullet during his closing argument. Defense counsel invited the jury to speculate that the angle of the bullet was explained by a “struggle” between appellant and Wenger during which Wenger was possibly “leaning forward to tackle” appellant. The prosecutor, on the other hand, suggested to the jury that the evidence did not “suggest a struggle” but that “the angle of the bullet suggests perhaps that the deceased, before the first shot, base of the neck and shoulder, was on his knees pleading for a life perhaps because the man held a gun to him____”. Defense counsel’s objection to the remark by the prosecutor was sustained. Appellant now claims that the prosecutor’s argument entitles him to a new trial. We do not agree.

While a prosecutor may not engage in argument that appeals to bias and hostility in the jury or which stigmatizes the defendant so thoroughly that the jury can no longer deliberate dispassionately on his guilt or innocence, every objectionable remark will not result in a new trial. Commonwealth v. Goins, 508 Pa. 270, 530, 495 A.2d 527, 530 (1985). Only remarks which have the “unavoidable effect” of prejudicing the jury require reversal. Commonwealth v. Graham, 522 Pa. 115, 560 A.2d 129, 130-31 (1989). The prosecutor’s language has to be evaluated in the context of the trial and the evidence. Commonwealth v. Smith, 490 Pa. 380, 388, 416 A.2d 986, 989 (1980). Here, while the prosecutor’s remarks may have overstepped the bounds of permissible argument, it is clear from the context in which they occurred that they were attempts by the Commonwealth to counter the defense’s speculative “theory” of the killing. Moreover, the argument was based on the properly admitted evidence of the bullet’s trajectory and the further evidence that the words “no” and “stop” were heard between the gunshots on the night of the murder. Finally, the objection to the prosecutor’s argument was sustained and the trial court frequently admonished the jury that their memory and assessment of the evidence governed their deliberations and that therefore they were to disregard anything to the contrary said by either counsel or the court. See Commonwealth v. Scarpino, 494 Pa. 421, 431 A.2d 926 (1981). Under these circumstances we cannot conclude that appellant is entitled to a new trial.

Appellant raises numerous objections to the trial court’s instructions to the jury. Appellant admits that “some” of the errors complained of were never addressed by trial counsel. In a belated attempt to pursue the unpreserved claims, appellant now asserts the ineffectiveness of trial counsel for failing to object to these aspects of the court’s charge. However, appellant’s claim of ineffectiveness is also untimely. The claims must be raised at the first opportunity at which counsel whose ineffectiveness is being claimed no longer represents the defendant, i.e. at post-verdict motions. (See discussion on argument number one in the instant case). This was not done with respect to many of the claims now raised. We will address only those claims of error which have been properly preserved for review.

Appellant argues that the trial court erred in instructing the jury on the crime of robbery since there was insufficient evidence of a forcible taking. In essence this argument duplicates the sufficiency claim which we have addressed earlier in this opinion. Suffice it to say that there was ample evidence upon which the jury could conclude that appellant shot and killed his victim in the course of a theft of his car, keys, wallet and other personal property.

Appellant also disputes the trial court’s charge to the jury on flight and concealment. In its instructions the trial court advised the jury on the settled rule of law that when a defendant has reason to know that he may be suspected in connection with a crime, the jury may infer a consciousness of guilt from that person’s flight or other evasive conduct. See Commonwealth v. Harvey, 514 Pa. 531, 526 A.2d 330, 334 (1987); Commonwealth v. Whack, 482 Pa. 137, 393 A.2d 417 (1978). This instruction was clearly warranted by the testimony regarding appellant’s evasive and suspicious conduct during the automobile accident with the Sears repair truck a few days after Wenger’s murder. Any argument on the strength of the inference to be drawn from appellant’s conduct was properly and adequately addressed to the jury as finders of fact in their task in assessing the appropriate weight to be given the evidence. The trial court’s charge correctly stated the law, was supported by the evidence at trial and left the evaluation of the evidence in the hands of the jury.

Next appellant claims that the trial court improperly characterized the instant case as a “murder” case to the jury, thus impermissibly conveying to the jurors his personal view of the guilt of the defendant. We note that defense counsel took no note of this allegedly prejudicial conduct on the part of the court and therefore counsel’s ineffectiveness for failing to object is asserted. Appellant has failed to sustain his burden of establishing ineffectiveness in this regard. Commonwealth v. Thomas, 372 Pa.Super. 349, 539 A.2d 829 (1988). Counsel cannot be deemed ineffective for failing to raise a meritless claim such as the one at issue here. Of course the defendant in this case was being prosecuted for murder and the trial court could properly instruct the jury that the informations so stated without overstepping the bounds of proper judicial conduct. The trial court’s jury charge taken as a whole squarely and repeatedly placed the burden of proof for all elements of all charges on the Commonwealth. The court’s instructions further emphasized the necessity of the jury’s exercise of independent judgment on the evidence, free from any opinions it may have sensed from either counsel or bench. Appellant’s claim here is meritless.

Finally, with repect to the court’s charge, appellant contends that it was error for the trial court to deny a suggested charge to the jury on involuntary manslaughter. Absent evidence which could reasonably have supported an involuntary manslaughter verdict, appellant is not entitled to the charge. See Commonwealth v. Williams, 490 Pa. 187, 415 A.2d 403 (1980); Commonwealth v. White, 490 Pa. 179, 415 A.2d 399 (1980). In the instant case there was no evidence which reasonably would have supported a verdict of involuntary manslaughter. The trial evidence, which has been discussed at length elsewhere in this opinion, simply could not support a finding of reckless or grossly negligent conduct as appellant has urged. Therefore, the trial court correctly refused to charge on this point.

Appellant’s last argument on appeal is that the trial court erred in failing to suppress the evidence seized from his home pursuant to the search warrant. Appellant claims that the warrant affidavit failed to establish probable cause.

This court must review the probable cause determination in a search warrant affidavit in a “common sense, non-technical, ungrudging and positive manner”. Commonwealth v. Jones, 506 Pa. 262, 269, 484 A.2d 1383, 1387 (1984). Whether a search warrant was validly issued depends upon the totality of the circumstances. Commonwealth v. Gray, 509 Pa. 476, 503 A.2d 921 (1985). Finally, we approach warrant affidavits in a practical, realistic manner, giving due deference to the judgment of the issuing magistrate. Commonwealth v. Carlisle, 348 Pa.Super. 96, 501 A.2d 664 (1985). We conclude that the affidavit here provided sufficient probable cause for the warrants to issue. The affidavit stated that Wenger had been found dead of multiple gunshot wounds from a .25 caliber weapon. It further averred that appellant was arrested while driving the automobile registered in the name of the murder victim. The affidavit stated that the officers stopping appellant knew that the car and its operator were wanted in connection with the homicide and also noted that the decedent’s registration was found in appellant’s pocket. Finally, the affidavit stated that the decedent was found without any money, travellers checks or credit cards despite the known fact that he was scheduled to leave on vacation the day his body was discovered. In conclusion, the warrant affidavit stated that the affiants had reason to believe that the weapon and personal items of Wenger can be found in appellant’s residence. The affidavit certainly satisfied the requirements of probable cause. It was reasonable to conclude that there was a fair probability that additional items of evidence would be found in the home of the suspect who already was in possession of the murder victim’s car and owner’s card.

Judgment of sentence is affirmed.

      . 18 Pa.Cons.Stat.Ann. § 2502 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 3701 (Purdon 1983).

      . 18 Pa.Cons.Stat.Ann. § 907 (Purdon 1983).

      . The murder trial at which appellant was convicted was presided over by the Honorable Eugene Gelfand. On remand from the Supreme Court, the evidentiary hearing was held before the Honorable Charles L. Durham. For the sake of clarity, hereinafter references to Judge Gelfand will be to the "trial judge" and references to Judge Durham will be to the "remand judge”.
      In addition, during the lengthy course of this criminal proceeding appellant has been represented by four different attorneys. Again for the sake of clarity and brevity, they shall be referred to as “trial counsel”, "post-verdict counsel”, "remand counsel” and “appeals counsel”, depending on which procedural stage they assisted appellant in his cause.

      . Fox and the police obtained the keys to Wenger’s apartment from an elderly neighbor down the street who was entrusted with the care of Wenger's apartment while he was away on vacations. Fox testified that two keys were required to open the front door — one for the dead bolt lock and one for the regular cylinder lock.

      . The police also recovered a misfired .25 caliber bullet from the hallway between Wenger’s bedroom and bathroom.

      . Specifically, Green testified that the weapon appellant tried to sell him was a R & G .25 caliber automatic which Green recognized because his hobby is firearms.

      . The evidence further suggests that prior to the shot through the head, appellant’s weapon misfired, lending additional weight to the conclusion of a specific intent to kill.

      . For example, prospective jurors were asked whether the fact that appellant was black and the decedent white would affect their impartiality or ability to render a fair verdict. Defense counsel asked each juror whether the introduction of evidence about homosexual activity would impair the juror's judgment. Often, either the court or defense counsel would follow up with further questions developing this area of potential bias.

      . Appellant raises as separate claim the propriety of a nighttime search of his residence. The warrant was applied for shortly after one o’clock in the morning, just after the police had taken a statement from appellant. The warrant averred that due to the lateness of the horn and the ease with which the highly portable items sought may be concealed or moved, a nighttime warrant was in order. The trial relied on the disposable nature of the items and the high probability that family members would learn of appellant's apprehension which occurred just outside his home. We find that reasonable justification existed for the search to occur at night.


source: Caselaw Access Project

author: BECK, Judge:

license: Public Domain

text:
    571 A.2d 386
    COMMONWEALTH of Pennsylvania v. Matthew C. WAX, Appellant.
    Superior Court of Pennsylvania.
    Argued May 25, 1989.
    Filed Jan. 16, 1990.
    Reargument Denied March 16, 1990.

      Steven J. Cooperstein, Philadelphia, for appellant.
    Alan Sacks, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before BECK, JOHNSON and HOFFMAN, JJ.
   BECK, Judge:

In a jury trial appellant Matthew Wax was convicted of attempted theft by deception. The court imposed a sentence of one-to-two years imprisonment and a $15,000 fine. On appeal he challenges the effectiveness of trial counsel for failure to preserve various claims of trial error. Appellant also seeks leave to appeal the discretionary aspects of his sentence. We conclude that the issues he raises are without merit and, therefore, we affirm.

Matthew Wax was a tenant in an office building in Philadelphia where he maintained an entertainment consulting business. On March 22, 1983, there was a fire in appellant’s then-unoccupied two-room suite of offices. The fire department was summoned and easily extinguished the blaze. The fire officials examined, photographed and secured the scene.

At the time of the fire, the Aetna Casualty and Surety Company (Aetna) insured appellant’s office and its contents for $35,000. Claiming a loss for equipment and other valuables totalling in excess of $32,000, Wax submitted a sworn proof of loss statement to Aetna. Aetna disallowed the claim on the ground that it had been falsified. The fabricated insurance claim formed the basis for the prosecution in the trial court.

At trial the Commonwealth’s evidence showed that on the date of the fire the premises had been practically emptied and that none of the items claimed to have been destroyed or damaged by the fire was present when the firemen arrived. In fact, the Commonwealth’s evidence showed that prior to the fire appellant had removed numerous items from his office, had fallen far behind in his payment of rent, had incurred a number of other debts and had apparently been beseiged by other financial difficulties.

With the aid of new counsel on appeal, appellant asserts the ineffectiveness of trial counsel for: 1) failing to preserve trial court error in permitting the Commonwealth to amend the bill of information; 2) failing to preserve trial court error in admitting evidence of appellant’s financial condition at the time of the crime; 3) failing to object to the prosecutor’s “course of conduct” depicting appellant as a deceptive person; and 4) failing to object to the introduction of hearsay evidence.

The standard by which this court must evaluate claims of ineffective assistance of counsel is settled. The effectiveness of trial counsel is presumed and appellant bears the burden of rebutting that presumption. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988); Commonwealth v. Jones, 298 Pa.Super. 199, 444 A.2d 729 (1982). In order to overcome the presumption appellant must show that the issue underlying the claim of ineffectiveness had arguable merit; that the course of conduct chosen by counsel had no reasonable basis in effectuating the client’s interest, and that counsel’s action or inaction operated to prejudice him. Commonwealth v. Tavares, 382 Pa.Super. 317, 555 A.2d 199 (1989). Appellant has failed to meet his burden on each of his ineffectiveness claims.

Prior to the commencement of appellant’s jury trial, the Commonwealth moved to amend the bill of information charging appellant with attempted theft by deception. Originally the bill identified the property involved as having a value of $32,000. The amendment resulted in the property being valued simply as “in an amount in excess of $2,000”, i.e., the statutory requirement for a third degree felony. 18 Pa.Cons.Stat.Ann. § 3903(a) (Purdon 1983). Since the trial court properly permitted amendment of the bill, trial counsel was not ineffective for failing to pursue this claim of error.

Pa.R.Crim.P. 229 permits amendment to an information for the description of “any property” provided that the change does not create a different or additional offense against which the accused must defend. Where the defendant has not been prejudiced case law has repeatedly held proper amendments to informations which have not broadened or changed the charge or which have not altered the nature or grade of the offense. Commonwealth v. Stanley, 265 Pa.Super. 194, 401 A.2d 1166 (1979); Commonwealth v. Oates, 269 Pa.Super. 157, 409 A.2d 112 (1979); Commonwealth v. Womack, 307 Pa.Super. 396, 453 A.2d 642 (1982). This case falls squarely within Rule 229 and the line of cases permitting amendment.

Appellant was fully aware of the Commonwealth’s proof not only through the original information but also through a bill of particulars. The crime specified in the amended information involved the same elements and arose from the same factual situation as set forth in the original information. See Commonwealth v. Womack, supra. Appellant cannot assert that the amended information undermined his defense or that he has been prejudiced or surprised. The change in the information from $32,000 to an amount in excess of $2,000 was therefore a permissible amendment. We conclude that the issue underlying his first ineffectiveness claim is without arguable merit; therefore appellant’s argument that his counsel was ineffective fails.

Appellant next claims his counsel was ineffective because he failed to object when the prosecutor introduced evidence of appellant’s indebtedness including moneys he owed for rent on the office, for gambling debts and for the purchase of a Mercedes which was repossessed. He asserts this evidence should have been excluded under the principles announced by the Pennsylvania Supreme Court in Commonwealth v. Haight, 514 Pa. 438, 525 A.2d 1199 (1987). In Haight, the defendant was charged with burglary. During the trial the Commonwealth was allowed to elicit testimony that at the time the crime was committed the defendant was unemployed ant? receiving welfare benefits. In upholding the Superior Court the Supreme Court in Haight concluded that evidence of indigency was irrelevant on the question of whether the defendant committed the burglary. Therefore the testimony relating to appellant’s unemployment and receipt of welfare benefits had been improperly admitted. 525 A.2d at 1200. Haight cannot be construed as creating an absolute bar to the admission of all evidence of financial difficulties.

Haight easily is distinguished from the instant case. Here, evidence of appellant’s debts was specific and substantial and from it the jury could infer appellant’s motive or state of mind to commit a crime, especially where the crime was strictly an economic one. Moreover, no general prejudice such as that present in Haight can be asserted because evidence of the debts clearly was not intended to stigmatize appellant on the basis of his economic status. Since Haight does not dictate the result appellant suggests, this court should assess the admissibility of the disputed evidence under traditional considerations of relevancy.

Relevant evidence is that which, either taken alone or in connection with other evidence, tends to prove or disprove some material issue in the case. Stated another way, to establish relevancy we ask whether the evidence sheds light upon or advances the inquiry in which the fact-finder is involved. See, e.g., Commonwealth v. Walzack, 468 Pa. 210, 218, 360 A.2d 914, 918 (1976); Commonwealth v. Bellacchio, 296 Pa.Super. 468, 479, 442 A.2d 1147, 1152 (1982). If the evidence in question is logically relevant it is admissible unless the trial court, in its discretion, determines that its potential prejudicial impact, outweighs its probative value.

In the instant case we hold that under the totality of the circumstances the evidence of specific debts may be introduced where the jury may clearly draw an inference that the financial difficulties of the defendant were material to his motive or state of mind in committing a crime. We recognize that while evidence of indebtedness or of other financial burdens may be clearly probative of a possible motive to commit a crime for monetary gain, we must also consider whether, on the other side of the equation, the potential for prejudice outweighs the obvious relevance of the proof. We are sensitive to the fact that a blanket application of this principle would “prove too much against too many” and may encourage the Commonwealth to argue that a “defendant [with] no apparent means of income ... was more likely to commit a crime for dollar gain”. State v. Mathis, 47 N.J. 455, 471-472, 221 A.2d 529, 537-538 (1966). We do not hold that financial indebtedness is always relevant. Instead we require a common sense evaluation of the disputed evidence and an inquiry into whether the probative value of the evidence exceeds its prejudicial impact.

With these general principles in mind, we consider whether evidence of appellant’s indebtedness was properly admitted. In the instant case, proof of appellant’s immediate financial liabilities was both specific and substantial. Unlike Haight, the jury here was not asked to speculate on a chain of inferences far too weak to be probative. The Commonwealth showed that at the time appellant filed his insurance claim his gambling debts were roughly equal to the amount of money he sought from the insurance company, that he was more than a year behind in his rent, and that he had other troublesome money problems. The appellant’s serious and pressing financial difficulties accompanied by an affluent lifestyle can hardly be said to lack a logical connection to a crime which is committed solely for monetary gain. See United States v. Reed, 639 F.2d 896, 907 (2d Cir.1981). The evidence was relevant to establish appellant’s motive or state of mind in committing the offense with which he was charged. See Commonwealth v. Boyle, 470 Pa. 343, 368 A.2d 661, 669 (1977); Commonwealth v. Adkins, 468 Pa. 465, 364 A.2d 287, 291 (1976). Furthermore, the probative value of this evidence clearly outweighed its prejudicial effect. The evidence was not inherently prejudicial and did not raise problems of stigma and unfairness such as those implicated in Haight.

We conclude that proof of appellant’s specific and significant financial problems together with an affluent lifestyle was evidence from which the jury reasonably could infer a motive for the commission of the crime and was not unduly prejudicial. Therefore the evidence was properly admitted and trial counsel was not ineffective for failing to pursue this claim of error.

Appellant further argues that trial counsel was ineffective in failing to: (1) object to numerous questions and arguments by the prosecutor; (2) object to the introduction of certain evidence and (3) request a mistrial based on the cumulative impact of prosecutorial improprieties.

In large part, appellant’s argument is that the prosecutor acted improperly in developing testimony about appellant’s rent dispute with his landlords. We find appellant’s argument meritless. Evidence of appellant’s ongoing negotiations with the building’s owners, his continuing failure to pay the rent, and his consequent removal of property from his suite of offices, was all probative of appellant’s state of mind at the time he filed his insurance claim. The Commonwealth’s proof sought to establish that the property appellant claimed to have lost in the fire was not present when the fire occurred. The property had been removed by him prior to the fire and the removal was part of an intent to abandon the premises. and neglect the outstanding rent obligations. This series of inferences was clearly relevant to establish the crime with which appellant was charged. The weight and credibility accorded the evidence were matters entirely within the province of the jury. Commonwealth v. Ogin, 373 Pa.Super. 116, 120-22, 540 A.2d 549, 552 (1988) (en banc). Counsel was not ineffective for failing to object to this evidence.

Moreover, evidence of appellant’s disputes with his landlords was both elicited and utilized by the defense in developing a defense theory that the building management had a vendetta against appellant. This theory extended so far as to suggest that the landlords “benefitted most” from the blaze and, indeed, may have started it themselves. Since the evidence elicited by the Commonwealth is the same evidence that the defense used to establish its defense, it is clear that trial counsel was not ineffective for failing to object to the prosecutor’s developing testimony about appellant’s rent dispute with the landlord. Cf. Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985); Commonwealth v. Rawles, supra.

Appellant’s final claim of ineffectiveness concerns trial counsel’s failure to object to a portion of the testimony given by one of the building’s owners, Dr. Herbert Kean. Specifically, appellant points to that part of Dr. Kean’s testimony wherein he stated that he instructed the maintenance staff to allow appellant to continue to remove equipment from the premises in the hopes of terminating appellant as a tenant. Kean stated that the maintenance man in the building had told him that appellant was removing property. Appellant now argues that Kean’s testimony about what the maintenance man told him was inadmissible hearsay and that the failure of counsel to challenge it entitles him to a new trial. This claim is baseless. Even assuming arguendo the evidence was inadmissible hearsay , the evidentiary value of the testimony at issue was de minimus. The Commonwealth’s proof that the property claimed to have been lost in the fire was not in the office at the time it occurred was based primarily on the fire mar-shall’s testimony and photographs and peripherally on the maintenance man’s observations. Dr. Kean as well as the fire marshall were fully cross-examined at trial by defense counsel. Dr. Kean’s passing remark in his testimony could not have had an adverse effect on the outcome of the proceedings. Therefore, appellant has not met his burden in overcoming the presumption of effectiveness to which trial counsel is entitled.

Lastly, appellant challenges the discretionary aspects of the sentence imposed by the trial court. We note that, as required pursuant to Pa.R.A.P. 2119(f) and the Supreme Court’s opinion in Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), appellant has included in his brief a statement of the reasons relied upon in seeking permission to appeal his sentence. Therefore, we must decide whether appellant has raised a “substantial question” regarding the appropriateness of his sentence before we can allow the appeal. 42 Pa.Cons.Stat.Ann. § 9781(b) (Purdon 1982). This judgment must be made on a case by case basis. In the instant case we conclude that a substantial question has been raised because of appellant’s color-able allegation that the trial court considered impermissible factors in sentencing him. Commonwealth v. Losch, 369 Pa.Super. 192, 201 n. 7, 535 A.2d 115, 119 n. 7 (1987).

The appellant maintains that the trial court improperly considered his privileged background as an aggravating factor. Furthermore, he argues that the trial court relied on the erroneous assumption that appellant had previously committed insurance fraud. While these claims raise a colorable allegation that the trial court relied on impermissible factors, careful examination of the record reveals that appellant is not entitled to the relief he seeks.

Appellant argues that the trial court erred in considering his “exemplary” family background as an aggravating factor. If anything, appellant asserts the trial court should have considered it as a mitigating factor. To support his argument, appellant relies on Commonwealth v. Lowe, 361 Pa.Super. 343, 522 A.2d 614 (1987). The Lowe court held that a lifelong history of blameless, law abiding conduct should be a mitigating factor in the imposition of sentence where the misconduct is a wholly isolated event and where the court is convinced that the offender has experienced such shame and remorse that he has already been partially punished. We find that Lowe is clearly distinguishable. See Commonwealth v. Palmer, 315 Pa.Super. 601, 462 A.2d 755 (1983). The record does not reveal that appellant’s background demonstrated a lifelong history of blameless and law abiding conduct that the Lowe court contemplated. More importantly the record reveals that appellant experienced none of the remorse and regret which figured so prominently in the Lowe opinion.

Likewise we find no merit in appellant’s claim that the trial court erroneously assumed that he had engaged in other insurance fraud when imposing sentence. Appellant’s contention is based on the trial court’s remark during the sentencing hearing that appellant had undertaken to “become a professional at this sort of activity”. Careful reading of the sentencing hearing makes clear that taken in context, this remark in no way supports the conclusion that the trial court was improperly converting appellant’s prior insurance claim into a criminal episode. Instead, an overall reading of the sentencing proceeding reveals that the judge was referring to appellant’s history of falling prey to excessive greed and acquisitiveness.

It is clear that in appellant’s case the trial court considered only relevant and permissible factors in imposing the sentence it did. At the conclusion of a lengthy sentencing hearing at which both sides were fully heard, the trial judge articulated his reasons for imposing a period of confinement in appellant’s case. Nothing appellant has argued persuades us that in doing so the trial court abused his discretion and barring that we will not substitute our judgment for that of the court below. See Commonwealth v. Sanders, 339 Pa.Super. 373, 489 A.2d 207 (1985); see also Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Judgment of sentence is affirmed.

      . Although the fire marshall concluded that the fire had been intentionally set, neither appellant nor any other person has been charged with arson in connection with the incident.

      . 332 Pa.Super. 269, 481 A.2d 357 (1984).

      . Appellant asserts further that in his own testimony he established legitimate excuses for the debts he had accumulated. Whether or not to believe him, of course, was a matter in the sole province of the jury and does not determine the admissibility of the disputed evidence. The weight the jury chose to assign to the evidence of appellant’s financial difficulties was left to it alone.

      . The record does not support several of appellant’s claims of prosecutorial overstepping and we can dispose of these summarily. The prosecutor did not suggest that appellant had set the fire in his office but repeatedly assured the court and the jury that it was the Commonwealth’s theory that appellant had seized upon the fire as an opportunity to attempt to defraud the insurance company. Nor did the prosecutor intimate that a previous insurance claim collected by appellant had been improper. In fact, the Commonwealth argued that the prompt and full payment of appellant’s first, legitimate claim inspired him to proceed with the false one. Trial counsel cannot be ineffective for failing to object to wholly proper conduct on the part of the prosecutor. Commonwealth v. Rawles, 501 Pa. 514, 462 A.2d 619 (1983).

      . Appellant also claims that the prosecutor engaged in improper conduct by attempting to establish that appellant had instituted a number of lawsuits. The record fails to reveal any intention on the part of the prosecutor to portray appellant as deceitful based upon his involvement in litigation nor can we find a prejudicial impact in this line of questioning.
      Similarly, we cannot fairly characterize as prejudicial the prosecutor’s questioning of appellant regarding his use of the designation ‘‘p.c.’’ in some of his correspondences. The question itself did not constitute error and, through it, appellant was allowed the opportunity to explain his lack of intent to deceive anyone in the use of the appellation "p.c,”. Trial counsel is not obligated to pursue a meritless claim.
      Finally, appellant asserts that the prosecutor "poisoned” his case by his attempts to question some of his numerous reputation witnesses on the underlying bases for their opinion of appellant’s reputation. The trial court sustained defense objections to any questioning of the character witnesses regarding appellant’s financial status since their testimony exclusively went to his reputation for truthfulness. Therefore, any questions in this area remained unanswered. It is axiomatic that a new trial is not compelled by every arguably irrelevant question or remark made. Commonwealth v. Marker, 231 Pa.Super. 471, 331 A.2d 883 (1974). Furthermore, the trial court instructed the jury that questions asked by counsel are not evidence and that all evidence to which any objection is sustained must be disregarded. Any potential harm was thereby attenuated and cannot provide the basis for relief. Commonwealth v. Lowry, 385 Pa.Super. 236, 560 A.2d 781, 785 (1989).

      . We are not convinced that the disputed testimony violated the evidentiary rule against hearsay. The testimony at issue here was offered not to prove the truth of the matter asserted therein, i.e., that appellant removed property from the premises, but merely to explain Dr. Kean’s decision to inform the building personnel to allow appellant to take what he wanted out of the building. Viewed in this context, the testimony is not hearsay and was properly admitted. See Commonwealth v. Heath, 319 Pa.Super. 319, 466 A.2d 178 (1983); Commonwealth v. Sneed, 514 Pa. 597, 526 A.2d 749 (1987).

      . In the Lowe case, the appellant had served twenty eight years in the Pennsylvania State Police and had attained the rank of Sergeant. In addition, he entered a plea of guilty to the charges of forgery and false reports with which he was charged.

      . Appellant incorrectly argues that the trial court could not consistently find that his crime was founded upon greed and, at the same time, have allowed in testimony of his financial difficulties as evidence of motive. However these are not inconsistent concepts. Greed is defined in Webster’s Dictionary as a "selfish desire to acquire more than one needs or deserves”. It certainly is easy to conceive of a situation where an individual is beseiged with debts for items which are a part of a lifestyle begotten by greed and who, therefore, is motivated to use criminal means to eradicate those liabilities.

      . Appellant's additional claims regarding his sentence amount to an argument that the trial court incorrectly weighed various legitimate sentencing considerations and therefore imposed a harsher sentence than was deserved. Absent a manifest abuse of discretion, however, we will not disturb the trial court’s judgment in this arena. See, e.g. Commonwealth v. Sanders, supra.


author: Opinion by BECK, Judge: CIRILLO, President Judge,

text:
    571 A.2d 392
    Marie Helen RYAN, Appellant v. Joseph Francis RYAN, Appellant Appeal of JEFSABA, INC.,
    at No. 1500,
    at No. 1370.
    at No. 1499.
    Superior Court of Pennsylvania.
    Argued Dec. 6, 1988.
    Filed Jan. 16, 1990.
    Reargument Denied March 28, 1990.

      Leonard Dubin, Philadelphia, for Joseph Ryan, appellant (at 1370) and appellee (at 1499 and 1500).
    Ralph M. Evans, Philadelphia, for Marie Ryan, appellant (at 1500) and appellee (at 1370 and 1499).
    Before CIRILLO, President Judge, and BECK and KELLY, JJ.
   Opinion by BECK, Judge:

This case presents the question , of whether in making an equitable distribution award a trial court may order a “buy-out” of stock instead of an in-kind distribution of stock in a closely-held corporation. We conclude that under the circumstances of this case, it was error for the trial court to order an in-kind distribution.

Marie Ryan (wife) and Joseph Ryan (husband) were married for twenty-seven years prior to their final separation in March of 1982. One child was born of the marriage and husband adopted wife’s two children from a previous marriage. All three children are emancipated adults. Both husband and wife are in their sixties. In 1979, husband suffered a stroke and is now confined to a wheelchair.

After hearings before the Master in Divorce, the Master determined that the marital assets, exclusive of income, totalled $1,020,711.00. Husband filed exceptions to the Master’s report, but wife did not. Husband’s exceptions included an exception to the Master’s recommendation that wife be awarded half of husband’s stock in Jefsaba Inc. (Jefsaba), a closely-held corporation.

The trial court accepted the Master’s finding that the major marital asset was husband’s interest in Jefsaba which owns the Holiday Inn in New Hope, Pennsylvania. The master determined that at the time of the hearing, Jefsaba had a net value of $2,448,000, and that husband owned 20 of the 66 outstanding shares of the corporation. Therefore, his interest constituted 30.3% of the corporation’s net value or $741,744.00. The trial court adopted the Master’s recommendation that ten of the shares, or one-half of the marital unit’s total, be transferred to wife.

In his exceptions, husband noted that pursuant to an agreement entered into by the five stockholders of Jefsaba, unanimous consent of all stockholders is required as a condition for any transfer of shares. Noting that this agreement was entered into just eleven days prior to the first scheduled Master’s hearing, the trial court adopted the Master’s view that the agreement was motivated by a desire to thwart wife’s claim in the divorce action. The trial court found binding an earlier agreement which allowed transfer of Jefsaba shares to a member of a stockholder’s immediate family on the condition that the transferred shares be non-voting.

Both parties filed petitions for reconsideration of the trial court’s order. The trial court granted reconsideration and later issued a Supplemental Opinion and Order dated April 8, 1988. In this opinion, the court discussed husband’s contention that the court erred in ordering an in-kind distribution of the Jefsaba stock. In support of his position, husband cited cases from other jurisdictions which recognize the reality that parties who cannot get along as husband and wife are unlikely to do so as business partners.

The trial court reached its decision based upon its belief that Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984) controlled and mandated in-kind distribution as opposed to a “buy-out” remedy. The court also noted that it would be difficult to value the stock accurately at the time of the court proceeding. The court recognized that the value as determined by the Master at the hearing in 1984 was no longer accurate; implying, thereby, that a buy-out would require further proceedings.

In his report, the Master found that wife was entitled to 25% of husband’s gross income from Jefsaba for the years 1982-1984. The trial court, applying Sutliff v. Sutliff, 361 Pa.Super. 504, 522 A.2d 1144 (1987), aff'd in part and rev’d in part, 518 Pa. 378, 543 A.2d 534 (1988), which was not decided at the time of the Master’s hearing, concluded that wife was entitled to 50% of this income for the years 1982-1984, and denied wife any distribution for subsequent years. The trial court noted that the Master’s report “only dealt with the period 1982-1984, and insufficient information exists in the record to render an award as to subsequent years.”

In her petition for reconsideration, wife sought equitable distribution of the dividends from Jefsaba for years subsequent to 1984. In its supplemental opinion, the trial court held the issue waived based upon wife’s failure to file exceptions to the Master’s report.

Following the entry of the Supplemental Opinion and Order, wife filed the instant appeal and husband filed a cross-appeal.

Appeal of Wife

The wife asserts she is entitled to 50% of the dividends from the Jefsaba stock from 1984 through the date of the trial court hearing, July 8, 1987, and that the trial court erred in finding that she was entitled to 50% of the dividends from the, Jefsaba stock only to the date of the Master’s hearing in 1984. In response to wife’s petition for reconsideration, the trial court held that wife waived the issue by failing to file exceptions to the master’s report.

In the second section of this opinion we determine that the trial court erred in ordering an in-kind distribution of Jefsaba stock to wife and that the case must be remanded for a valuation of husband’s Jefsaba stock and a distribution of wife’s share of that value. Given this determination, we find that we need not decide whether wife has properly preserved the issue of her entitlement to dividends accruing past the date of the original master’s hearing in 1984. On remand, wife may seek leave of the trial court to except on this ground nunc pro tunc. Pa.R.C.P. 1920.55. If the trial court again refuses to take testimony as to dividends accruing since mid-1984 and, therefore, refuses to distribute a portion of those dividends to wife, and if wife again appeals that determination, then the difficult waiver problem posed by this case will require decision.

Husband’s Cross-Appeal

Husband asserts that the trial court erred in ordering an “in-kind” distribution of the Jefsaba stock: (1) where neither party sought this remedy; (2) where it would be unwise to force the parties into a business relationship; and (3) where the trial court erred in its interpretation and application of Barletta

Husband claims that neither party in this case requested an in-kind distribution. In support of this contention, husband notes that during the Master’s hearing, wife produced testimony as to the value of the stock pursuant to a “buy-out” remedy. In addition, wife’s post-trial memorandum on “the issue of equitable division of marital property” included a category entitled “assets in name of husband” under which was listed: “Jefsaba, Inc. stock, value as determined by Master.” Husband also points out that in her post-trial memorandum, wife acknowledged that it is “not practicable to order the transfer of one-half of the stock of JEFSABA.” Instead, wife suggested that husband pay her one-half of the value of the stock.

In response to husband’s contention, wife admits that she considered a “buy-out” as a possible remedy. She acknowledges that such a suggestion appeared in her post-trial memorandum. However, wife now asserts that based on Barletta, the “unreasonableness of a buy-out, with the inherent problems of valuation involved, became obvious.”

Our review of the trial court opinions makes clear that the in-kind distribution in this case was ordered because the trial court interpreted Barletta as mandating in-kind distribution over the remedy of a “buy-out.” We believe that the trial court read Barletta too broadly.

In Barletta, the trial court ordered the husband, over his objection, to “buy-out” his wife’s interest in certain marital personal property, all of which was readily severable. 506 Pa. at 408, 485 A.2d at 754. The Pennsylvania Supreme Court reversed the trial court and concluded that under the facts of Barletta, such a “buy-out” was improper. The assumption underlying the Barletta decision was that the spouse would have to sell the personalty, in a declining market, in order to satisfy the obligation under the equitable distribution order.

Initially, we note that contrary to the trial court’s conclusion in the instant case, Barletta does not mandate in-kind distribution. The Barletta Court itself concluded:

We are not saying that the remedy of ordering a ‘buy-out’ is prohibited by statute ... we can envision situations where the distribution of marital property would be truly impracticable or economically unwise.

506 Pa. at 409, 485 A.2d at 754. The Barletta court held that the personal property in that case should have been divided between the parties and not distributed to one spouse because the personalty “was readily severable and we believe capable of being divided without destroying its relative value.” 506 Pa. at 408, 485 A.2d at 754. The Barletta Court concluded that “in the context of the present case, the remedy of a ‘buy-out’ was an abuse of discretion.” Id. Subsequent cases interpreting Barletta, such as Bold v. Bold, 374 Pa.Super. 317, 542 A.2d 1374 (1988), and Wolf v. Wolf, 356 Pa.Super. 365, 375, 514 A.2d 901, 906 (1986), note that under Barletta, a court may resort to a “buy-out” remedy where it makes specific findings as to why the marital property cannot be divided.

In the instant case, the facts differ considerably from those in Barletta. Neither party objected to the “buy-out” remedy. Stock in a closely-held corporation, although personalty, is different in nature from the type of personal property involved in Barletta. As we noted, the Barletta court was concerned with the fact that husband would have been forced to sell the personalty in order to satisfy the equitable distribution order. In the instant case, husband is ready, willing and able to satisfy a “buy-out” order.

Perhaps the most notable difference between these two cases is that in Barletta, the in-kind division of the personalty does not pose the problems which division of the stock in a closely-held corporation poses. The division of the in-kind personalty in Barletta permitted each party to go his and her separate ways. An in-kind division of stock in a closely-held corporation will usually force the parties into a continuing relationship. On policy grounds it is unwise to make business partners of individuals who are unable to live together as husband and wife. In the absence of special circumstances, the courts should not place divorced parties into the position where they have a continuing economic relationship with one another. Even assuming that an in-kind distribution of the stock will not bring husband and wife into daily contact, an in-kind distribution necessitates a lingering connection between two parties who obviously wish to sever their ties.

We have already determined that Barletta permits a “buy-out” in appropriate situations, and that this case presents a situation where a “buy-out” remedy is warranted. We therefore conclude that the trial court erred in ordering an in-kind distribution. We remand in order that a hearing may be conducted to determine the value of the Jefsaba stock so that husband may “buy-out” wife’s interest.

The order of the trial court is reversed and the case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

CIRILLO, President Judge, files a dissenting opinion.

CIRILLO, President Judge,

dissenting.

I respectfully dissent from both the majority’s disposition of Mrs. Ryan’s appeal and its disposition of the cross-appeal filed by Mr. Ryan.

The majority states that it will not decide whether Mrs. Ryan has properly preserved the issue of her entitlement to dividends accruing past the date of the original master’s hearing in 1984 because of its disposition of Mr. Ryan’s cross-appeal. With respect to Mr. Ryan’s cross-appeal, the majority finds that the trial court erred in ordering an in-kind distribution of Jefsaba stock to Mrs. Ryan and remands this case for a valuation of Mr. Ryan’s stock and a distribution of Mrs. Ryan’s share of that value. The majority states that on remand Mrs. Ryan may seek leave of the trial court to except nunc pro tunc on the issue of her entitlement to the dividends accruing after 1984. See Pa.R. C.P. 1920.55. If the trial court refuses to take testimony as to those dividends accruing since mid-1984 and therefore refuses to distribute a portion of those dividends to Mrs. Ryan, and if Mrs. Ryan again appeals that determination, then the majority would decide the waiver issue.

Because I believe that the trial court did not err in ordering an in-kind distribution of Jefsaba stock to Mrs. Ryan, I find it necessary to address whether Mrs. Ryan has waived her right to challenge the trial court’s conclusion that she was not entitled to any of Mr. Ryan’s income from Jefsaba from 1984 through the date of the master’s hearing, July 8, 1987. For the foregoing reasons I would find that by failing to file exceptions to the master’s report Mrs. Ryan has waived her right to contest the trial court’s conclusion that she was only entitled to 50% of the income from Jefsaba for the years 1982-1984.

The master found that Mrs. Ryan was entitled to 25% of Mr. Ryan’s income from Jefsaba for the years 1982-1984. The trial court modified the master’s recommendation by stating that Mrs. Ryan was entitled to 50% of the income from Jefsaba for the years 1982-1984. The trial court, like the master, denied Mrs. Ryan any distribution for the years following 1984. Thus, while the trial court did, in fact, modify the report of the master on the issue of dividends, this modification related solely to the percentage of income Mrs. Ryan would be entitled to for the years 1982-1984. The trial court did not alter the master’s finding that Mrs. Ryan was not entitled to any income for 1984 through July 8, 1987.

In Benson v. Benson, 357 Pa.Super. 166, 515 A.2d 917 (1986), we held

No exceptions need be filed to preserve for appeal issues which claim the trial court erred when in response to the opposing party’s exceptions, it entered a final decree which altered the terms of the master’s report and proposed order.

Id., 357 Pa.Superior Ct. at 169, 515 A.2d at 918. However, we also stated in Benson that Pa.R.C.P. 1920.55

requires a party who is dissatisfied with a master’s report to file exceptions to the report, or waive any such objections. On the other hand, logic dictates that a party who is satisfied with the report need not except to it. When the trial court alters the terms of the report in response to the opposing party’s exceptions, Rule 1920.55(c) provides no motions for post-trial relief may be made. Accordingly, the only occasion to raise objections to this final decree is through a direct appeal, and any issues which claim the court’s ruling was erroneous are preserved because they are raised at the first available opportunity.

Benson, 357 Pa.Super. at 170, 515 A.2d at 919.

I believe that the reasoning in support of our decision in Benson buttresses my position that Mrs. Ryan waived her rights by not filing exceptions to the master’s report. If Mrs. Ryan was satisfied with the master’s report then she would have had no reason to except to it. Mrs. Ryan, however, was apparently not satisfied with the report be-, cause she now argues that the trial court erred when it concluded that she was only entitled to income from Jefsaba for the years following 1984. Both the master and the trial court stated that Mrs. Ryan was not entitled to income for 1984 through July 8, 1987. If Mrs. Ryan was dissatisfied with the master’s finding that she was only entitled to receive dividends for the two year period, she should have filed an exception to the master’s report. I would find that Mrs. Ryan has failed to preserve her issue for appeal.

In connection with Mr. Ryan’s appeal, the majority believes the trial court ordered an in-kind distribution of the stock because the trial court interpreted Barletta v. Barletta, 506 Pa. 404, 485 A.2d 752 (1984) as mandating an in-kind distribution over the remedy of a “buy-out.” While I agree with the majority that the trial court read Barletta too broadly, I do not believe the trial court abused its discretion by ordering the in-kind distribution. Barletta does not, as the majority correctly notes, require an in-kind distribution in every case, but merely states that “prior to a court making or approving a buy-out remedy, it is required to make specific findings as to why a division of the property cannot be effectuated.” Barletta, 506 Pa. at 409, 485 A.2d at 754-55; see also Wolf v. Wolf, 356 Pa.Super. 365, 514 A.2d 901 (1986). Therefore, it is clear that Barletta permits a “buy-out” in certain situations.

My disagreement with the majority lies with its belief that “this case presents a situation where a ‘buy-out’ remedy is warranted,” and its conclusion that by ordering an in-kind distribution the trial court committed an abuse of discretion. A trial court is permitted to exercise its discretion in fashioning the equitable distribution of marital property and we will not disturb the decision of the trial court absent an abuse of discretion. Ganong v. Ganong, 355 Pa.Super. 483, 490, 513 A.2d 1024, 1028 (1986); see also Benson, supra. “An abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence.” Braderman v. Braderman, 339 Pa.Super. 185, 190, 488 A.2d 613, 615 (1985). “An abuse of discretion has been defined as ‘not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence or the record, discretion is abused.’ ” Id., 339 Pa.Superior Ct. at 190 n. 2, 488 A.2d at 615 n. 2, citing Commonwealth ex rel. Levy v. Levy, 240 Pa.Super. 168, 361 A.2d 781 (1976). Moreover, as an appellate court we may affirm the decision of the trial court on any ground regardless of whether the reasons given by the trial court are incorrect. Coatesville Development Company v. United Food and Commercial Workers, AFL-CIO, 374 Pa.Super. 330, 338, 542 A.2d 1380, 1384 (1988).

As I noted above, I agree with the majority’s finding that the trial court misinterpreted Barletta as requiring an in-kind distribution. The trial court, however, offered additional support for its decision to distribute the stock in-kind. The Honorable Nicholas A. Cipriani stated in a supplemental opinion and order dated April 8, 1988:

Aside from Barletta, our decision to order a physical division, rather than a “buy-out,” was premised on the unavoidable difficulty in placing a proper valuation on the closely held stock. In seeking reconsideration, counsel for the Husband maintains that the Court should calculate the worth of the Holiday Inn by utilizing certain figures that were presented by the Husband’s accountant (Alvin Rosenberg) and by an appraiser (George Sengpiel) at the time of their testimony in 1984. However, this is now 1988, and it would clearly be inappropriate to use figures that are so outdated for purposes of ascertaining current market value.
As noted by the Superior Court in Sergi v. Sergi, [351 Pa.Super. 588], 506 A.2d 928, 932 (Pa.Super.1986), “equitable results will most likely flow from providing the court with the most recent information available.” Therefore, if we went the route of ordering a “buy-out” of the Wife’s interest in the Jefsaba shares, it would be necessary for us to elicit a new comprehensive appraisal, based on current information as to corporate earnings and real estate values. This would obviously require the expenditure of additional time in a case that is already five years old. Moreover, we suspect that the figures produced by any appraisal would still be disputed, given the intrinsic difficulties in evaluating closely held stock. Consequently, a physical division of the shares is clearly preferable in this situation, both because it is more likely to produce an equitable result and because it would avoid further delay.

Thus, I believe that the reasoning offered by the trial court, notwithstanding its misinterpretation of Barletta, is sufficient to support its decision to order an in-kind distribution of the Jefsaba stock.

Moreover, if section 401(d) was to be held retroactive and applied to resolve Mr. Ryan’s appeal, I would continue to remain with my affirmance of the trial court’s decision to order an in-kind distribution. Section 401(d) in pertinent part now states:

In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in-kind or otherwise, the marital property between the parties ... in such proportions and in such manner as the court deems just.

23 P.S. § 401(d) (emphasis added) (as amended, February 12, 1988, effective immediately.) Here, the trial court distributed the property in-kind and in such a manner as it deemed just. Accordingly, I would find that the trial court committed no abuse of discretion and would affirm the trial court’s decision to physically divide the shares of stock between Mr. and Mrs. Ryan.

      . Jefsaba has filed an appellate brief on the issue of whether in-kind distribution of its stock to the wife was proper. Since Jefsaba was not a party below, its participation in this appeal is improper and will not be considered: We note that wife’s petition to join Jefsaba at the trial level was denied.

      . Husband asserts that we should consider the 1988 Amendment to Section 401(d) of the Divorce Code which specifies that marital property may be subject to remedies other than in-kind distribution:
      “In a proceeding for divorce or annulment, the court shall, upon request of either party, equitably divide, distribute or assign, in-kind or otherwise, the marital property between the parties ..." (emphasis in amendment.)
      Pa.Stat.Ann. title 23, § 401(d) (as amended). Because of our resolution of this issue under Barletta and its progeny, we find it unnecessary to pass on the retroactivity of this amendment.

      . Pa.R.C.P. 1920.55 states:
      (a) Within ten days after notice of the filing of the master’s report has been mailed, exceptions may be filed by any party to the report or any part thereof, to rulings on objections to evidence, to statements or findings of fact, to conclusions of law, or to any other matters occurring during the hearing. ■ Each exception shall set forth a separate objection precisely and without discussion. Matters not covered by exceptions are deemed waived unless, prior to entry of the final decree, leave is granted to file exceptions raising those matters.

        (b) If no exceptions are filed to the master’s report within the ten-day period, the court shall review the report and if approved shall enter a final decree.
      (c) If exceptions are filed, the court shall hear argument on the exceptions and enter an appropriate final decree. No Motion for Post-Trial Relief may be filed to the final decree.

      . Both Mr. and Mrs. Ryan filed petitions for reconsideration. In her petition, Mrs. Ryan raised the issue' now before us on appeal. In a supplemental opinion dated April 8, 1988, Judge Cipriani denied both petitions and stated that because Mrs. Ryan filed no exceptions to the master's report, she had no standing to pursue the issue through a petition for reconsideration.

      . In a footnote in its opinion, the majority notes that Mr. Ryan requested this court to apply the 1988 amendment to section 401(d) of the Divorce Code in resolving his appeal. The majority states: “Because of our resolution of this issue under Barletta and its progeny, we find it unnecessary to pass on the retroactivity of this amendment.” Apparently, the majority did not reach the retroactivity issue because it concluded that under Barletta this case warranted the buy-out method of distribution. My interpretation of Barletta likewise does not necessitate deciding the retroactivity issue. Under Barletta I conclude that the trial court did not abuse its discretion in ordering the in kind distribution of the stock. Since under amended section 401(d) I would reach the same conclusion, it is unnecessary for me to address the retroactivity issue.