text:
    637 A.2d 334
    PITTSBURGH NATIONAL BANK, as Executor of Murial A. Laughery, Deceased, Appellant, v. Joel S. PERR, Individual and General Partner, Trading as Washington Plaza Associates, a Limited Partnership; Washington Plaza Associates, a Limited Partnership, Joel S. Perr, Individual, General Partner, John W. Galbreath and Co., Inc., a Corporation; Perr Management Company, Inc., a Corporation; Detroit Policemen and Firemen’s Property Partners, a Limited Partnership, Individually and WP Apartments, Inc., a Corporation, Individually, and Together t/d/b/a WP Partnership, a General Partnership; MIG Mortgage Services, Inc., a Pennsylvania Corporation, Individually and t/d/b/a Detroit Policemen and Firemen’s Property Partners, a Limited Partnership; Johnstown Company, a Corporation a/k/a Johnstown American Subsidiary Corporation No. 4, a Corporation; Washington Plaza Management Company, a Corporation; GFS Management of Pennsylvania, Inc., a Corporation.
    Superior Court of Pennsylvania.
    Argued Nov. 10, 1993.
    Filed Feb. 2, 1994.

      Francis C. Rapp, Jr., Pittsburgh, for appellant.
    Tracey G. Vinson, Pittsburgh, for Galbreath & Co., appellee.
    Before TAMILIA, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from the order of the Court of Common Pleas of Allegheny County, dated April 6, 1993, which granted the preliminary objections, in the nature of a demurrer, to the complaint of appellant as to its claim against appellee. We affirm.

Appellant, Pittsburgh National Bank, is the executor of the estate of Muriel A. Laughrey. According to the complaint, the decedent lived at the Washington Plaza Apartments in Pittsburgh, Pennsylvania. The appellee, John W. Galbreath and Co., Inc., managed the apartment complex from July 17, 1989 until July 30, 1990. During that time period, appellee employed Otis Lee Boyd as a maintenance worker. Boyd was hired on June 2,1987, by the Perr Management Co. (hereinafter “Perr”) which managed the complex at that time. From 1987, numerous and successive management companies operated the complex and employed Boyd, including appellee. Unbeknownst to any of the management entities except Perr, Boyd had a lengthy criminal record involving robbery and other theft crimes. The complaint also alleges that Boyd supported a habitual drug dependency and exhibited symptoms of a drug addict.

As part of his duties, which included routine maintenance, Boyd was permitted access to the tenants’ apartments. Upon gaining entry into the residences, he was able to skim from the tenants by taking some, but not all, of the money from the wallets or purses of tenants after gaining access to their apartments. During the evening of January 11, 1991, Boyd went to the decedent’s apartment under the guise of repairing plumbing in the decedent’s bathroom. He intended to skim from the decedent’s purse, which he hoped he would find in the decedent’s bedroom. Boyd found her purse in the bathroom. While pilfering through it, the decedent confronted Boyd. A struggle ensued which culminated when Boyd strangled the decedent. He was subsequently tried, and convicted of first-degree murder. On the date of the murder, appellee did not manage the apartment complex, nor was Boyd one of its employees.

Appellant filed the underlying action for the wrongful death of the decedent against the various owners of the Washington Plaza Apartments, as well as the numerous management companies which had employed Boyd. Appellant claimed that the defendants negligently hired Boyd and failed to warn the tenants of his dangerous proclivities. Appellee filed preliminary objections in the nature of a demurrer, which the trial judge granted. The trial judge reasoned that on the date of the murder appellee did not employ Boyd and was under no duty to control his actions. This timely appeal followed and calls into question whether a previous management company of a residential facility owes a duty to investigate or warn of the criminal background of a former employee who murdered a tenant at the facility after it ceased operating the facility.

Our standard of review in an appeal from an order sustaining preliminary objections in the nature of a demurrer is the same as that which the trial court employs: all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true for purposes of review. Eckell v. Wilson, 409 Pa.Super. 132, 135, 597 A.2d 696, 698 (1991). However, we cannot accept as true conclusions of law. Id. The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which relief may be granted. Id. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory. Id. at 135-36, 597 A.2d at 698.

In order to establish a cause of action for negligence, a plaintiff must prove the following four elements: (1) a duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the conduct and the resulting injury, and (4) actual damages. Morena v. South Hills Health System, 501 Pa. 634, 642 n. 5, 462 A.2d 680, 684 n. 5 (1983). The crux of the present matter is whether, as Otis Boyd’s former employer, appellee owed a duty to appellant to investigate Boyd’s violent propensities, and to warn tenants of the same. We find that no such duty exists.

“Duty, in any given situation, is predicated on the relationship existing between the parties at the relevant time.” Id. at 642, 462 A.2d at 684 (1983) (emphasis added). In Morena, the decedent’s estate sued paramedics who transported the decedent to a hospital after he was shot. At the hospital, doctors determined that the decedent needed treatment which was only available at another facility and would need to be transported there. Hospital officials asked the paramedics to move the decedent. The paramedics were not informed of the urgency of situation. After consulting with their supervisor, the paramedics informed the hospital officials that they could not, in fact transport the decedent to the other hospital because of a policy prohibiting inter-hospital transfers. The hospital engaged the services of a private ambulance service to make the transfer; but because of the delay, the decedent died.

Our Supreme Court held that no cause of action lay against the paramedics who transported the decedent to the hospital. The Court held that their duty to the decedent ceased to exist when they successfully transported the decedent to the hospital. Id. at 643, 462 A.2d at 685. Further, the existence of any subsequent duty rested upon some knowledge attributable to the paramedics that the transfer was an emergency. Id.

Similarly in the present matter, while the appellee managed the apartment complex, it had a duty to the decedent to investigate the background of its employees and warn her if any of the employees had violent propensities. Nonetheless, contrary to appellant’s argument, this duty terminated when appellee ceased managing the premises. During its tenure as the management company of the complex, appellant’s decedent incurred no harm or injury from appellee’s breach of any duty. Once appellee terminated its management function, it owed no further duty to the decedent. Rather, any duty existing when the decedent was killed emanated from the management or owner of the complex at that time.

This Court reached a similar conclusion in Hoffman v. Sun Pipe Line Co. 394 Pa.Super. 109, 575 A.2d 122 (1990). In that case, the defendant’s pipe line was punctured, causing gasoline leakage into a town house development. The plaintiffs entered into an agreement to purchase one of the townhouses without knowledge of the seepage. Upon learning of the leak, the plaintiffs were unable to rescind the agreement. The plaintiffs sued the pipe line company for damages. In holding that the pipe line company was not liable to the plaintiffs, we reasoned that its liability to successive home owners could be limitless and that the plaintiffs had recourse against the sellers of the property. Id. at 118, 575 A.2d at 127.

The paramount concern in both Morena and Hoffman was that the concept of “duty” in negligence law is limited. As the panel in Hoffman stated:

Even where a harm to a particular plaintiff may be reasonably foreseeable from the defendant’s conduct, and that conduct is the cause-in-fact of the plaintiff’s harm, the law makes a determination that, at some point along the causal chain, liability will be limited. The term “proximate cause”, or “legal cause” is applied by courts to those considerations which limit liability, even where the fact of causation can be demonstrated. Because of convenience, public policy, or a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point, as no longer a “proximate” or “legal” consequences [sic] naturally flowing from the wrongdoer’s misconduct. To put it simply, at a certain point, negligent conduct will be viewed as too remote from the harm arising to the plaintiff, and thus not a substantial factor in bringing about the plaintiffs harm.
Whether the analysis proceeds in terms of “duty”, “foreseeability”, or “proximate cause”, we must remain mindful of Prosser and Keeton’s admonition that our essential inquiry in these cases is the same:
in all of these proposed rules and formulae the courts and writers have been groping for something that is difficult, if not impossible, to put into words: some method of limiting liability to those consequences which have some reasonably close connection with the defendant’s conduct and the harm which it originally threatened, and are in themselves not so remarkable and unusual as to lead one to stop short of them.

Id., 394 Pa.Super. at 115-16, 575 A.2d at 126 (citations omitted). See also Glick v. Martin & Mohler, Inc., 369 Pa.Super. 428, 535 A.2d 626 (1987), allocatur denied, 519 Pa. 665, 548 A.2d 255 (1988) (duty cannot be overly broad and must be specifically defined).

In the present case, policy considerations, too, favor the finding that appellee is not liable to the estate. Appellee was not the management company operating the apartment building when Boyd killed the decedent. Any duty flowing to decedent necessarily terminated when appellee ceased its management of the facility and its employment of Boyd. To hold otherwise would be to allow appellant to maintain causes of action against a limitless number of entities which, through the natural course of events, caused Boyd to be in a position to harm the decedent. We decline to permit such endless liability. Moreover, we are further persuaded of the wisdom of our result as appellant may still maintain a cause of action against the owners and operators of the facility at the time Boyd fatally injured the decedent. See Hoffman v. Sun Pipe Line Co., 394 Pa.Super. at 118, 575 A.2d at 127. Upon proper proof, the estate will be entitled to full remuneration from those entities.

We are also cognizant of appellant’s citation to our decision in Coath v. Jones, 277 Pa.Super. 479, 419 A.2d 1249 (1980), but find it to be inapposite. In that case, we held that a customer of an electronic service company had a cause of action against the company for injuries she sustained at the hands of a former employee of the service. We held that “an employer may be negligent if he knew or should have known that his employee had a propensity for violence and such employment might create a situation where the violence would harm a third person.” Id. at 482, 419 A.2d at 1250. Although the Coath case involved a former employee of the service company, we found it necessary for the employer, knowing of the dangerous propensities of the employee, to warn the customers that he was no longer employed, thereby prohibiting the employee’s entrance into the customer’s home. Id. In the present case, however, appellee terminated its relationship with the decedent and Boyd when it ceased managing the complex. Nonetheless, Boyd was still employed at the complex by the new management company and was permitted access to the apartments. The duty befell on the new management to warn tenants about Boyd. Finding no cause of action to exist in favor of appellant against appellee, we affirm the order of the trial court.

Order affirmed.


source: Caselaw Access Project

author: POPOVICH, Judge:

license: Public Domain

text:
    637 A.2d 622
    Sandra Lee Fitz SMITH, Appellee, v. Davis Page SMITH, III, Appellant (Two Cases).
    Superior Court of Pennsylvania.
    Argued Oct. 7, 1993.
    Filed Dec. 17, 1993.

      Edward H. Fackenthal, Norristown, for appellant.
    Before POPOVICH, JOHNSON and HOFFMAN, JJ.
   POPOVICH, Judge:

The Appellant/Defendant, Davis Page Smith, III, files dual appeals: The first challenges an order of support and the second questions a contempt order. We quash in part and affirm in part.

The record discloses that the Plaintiff, Sandra Lee Fitz Smith, filed a complaint in divorce seeking, inter alia, support for herself and her two children. A temporary order was issued on October 17, 1989, for $2,800.00 per week. Thereafter, the order was modified by the court on December 28, 1989, directing the Defendant to pay $4,600.00 per week. This was “based upon defendant’s admission as to his then annual earnings of $700,000.00, for which the Court determined he netted $10,900.00 per week.” Trial Court Opinion, 3/30/93 at 1.

A civil contempt order was issued by the court on February 12,1990, attaching the Defendant’s wages and directing him to pay $13,800.00 forthwith. On March 20, 1990, a second civil contempt order was issued attaching the Defendant’s wages and placing liens on various pieces of his property.

Next, an order of court sur civil contempt was issued February 4, 1993, directing the Defendant to pay $1,500.00 and remanding him to the Montgomery County Prison until the amount stated was paid. “The $1,500 amount was paid and Smith was released the next day. The record does not disclose who paid the amount.” Appellant’s Brief at 5-6. Appeals followed in a timely fashion and seek review of the support and contempt orders entered on February 4, 1993.

In respect to the order directing payment of $4,600.00 per week in spousal and child support, the Appellant contends that the court abused its discretion because he was financially destitute — bankrupt and unemployed — at the time of trial and the current earnings of both parties were not viewed in light of the Support Guidelines or Melzer v. Witsberger, 505 Pa. 462, 480 A.2d 991 (1984).

Procedurally, the Appellant’s efforts to modify the December 28, 1989, order occurred at a hearing on May 7-8 of 1990. Thereafter, the court issued an order on February 4, 1993, affirming the 1989 support requirements.

The issues relating to the support order, when distilled, consist of challenges to the court’s discretion and necessitate a review of the “sufficiency” of the evidence to resolve the matter. See Rock v. Rock, 385 Pa.Super. 126, 560 A.2d 199, 201 (1989).

Our ability to apply the aforementioned standard is compromised by a deficiency in the record, i.e., the May 7-8, 1990, hearing transcript has not been made a part of the official record certified to this Court, a function reserved specifically to the party seeking appellate review. See Pa.R.App.P. 1911(a); Commonwealth v. Chopak, 532 Pa. 227, 615 A.2d 696, 701 n. 5 (1992); School District v. Maryland Casualty Co., 402 Pa.Super. 569, 587 A.2d 765, 768 (1991); Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730, 738 (1989); Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289, 291 (1988).

In resolving the matter, we are guided by the following precepts: First, it is black letter law in this jurisdiction that an appellate court cannot consider anything which is not a part of the record in the case. See McCaffrey v. Pittsburgh Athletic Association, 448 Pa. 151, 293 A.2d 51, 57 (1972). Second, it is the responsibility of the Appellant to supply this Court with a complete record for purposes of review. See Rule 1911(a); Chopak, supra; Maryland Casualty Co., supra; Butler, supra; Thomas, supra. Third, although no reproduced record has been offered by the Appellant to remedy the deficiency in the official record, we would note that reproduction of the record is not an acceptable substitute for the original, certified record. See Gemini Equipment v. Pennsy Supply, 407 Pa.Super. 404, 595 A.2d 1211, 1215 n. 5 (1991); Frank v. Frank, 402 Pa.Super. 458, 587 A.2d 340, 342-43 n. 5 (1991); McCormick v. Allegheny General Hospital, 364 Pa.Super. 210, 527 A.2d 1028, 1033 (1987); Ritter v. Ritter, 359 Pa.Super. 12, 518 A.2d 319, 323 (1986). Fourth, a failure by an Appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes a waiver of the issue(s) sought to be examined. See Maryland Casualty Co., supra; Butler, supra.

At bar, the aforesaid translates into our inability to assess the merits of the Appellant’s arguments seeking a reversal of the support order.

Presently, the Appellant challenges the order of support on grounds necessitating a review of the hearing transcript. For example, the Appellant attributes the court with abusing its discretion in entering a support order without taking into consideration his financial and unemployment status, considering facts “existing] at the commencement of the proceedings rather than nine months later at the time of trial,” and deciding his support obligations without determining the current earnings of the litigants or applying Melzer or some reasonable variation thereof. See Appellant’s Brief at 2.

Because we have been presented with no evidence of record to support the relief requested by the Appellant, the course to pursue is well-marked and directs that, “where the appellant is remiss in fulfilling th[e] duty [to provide a record which is sufficient to permit meaningful appellate review as is the case here], the appeal must be quashed.” Chopak, supra, 532 Pa. at 236, 615 A.2d 696, 701 n. 5, quoting Fox v. Gabler, 377 Pa.Super. 341, 346, 547 A.2d 399, 401 (1988) (Emphasis added). Therefore, the appeal perfected at No. 830 PHL 1993 is quashed.

We next turn our attention to the Appellant’s challenge of the February 4, 1993, order holding him in contempt for failing to pay arrearages totalling $800,000.00. For not complying with the support order, the Appellant was directed to pay $1,500.00 and placed in jail until payment was made.

The Appellant argues that he was denied his due process rights in that a formal hearing, wherein testimony was presented in open court, was dispensed with by the court in favor of eliciting argument from counsel. Also, the court proffered the view that with the Appellant’s payment of the $1,500.00 to exit jail, which occurred the day after the order was entered, he purged himself of the mantel of contempt and rendered inquiry of the order moot. We disagree in part.

In Altemose Construction Co. v. Building & Construction Trades Council, 449 Pa. 194, 296 A.2d 504 (1972) (plurality opinion, but six participating justices agreed on contempt issue), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973), our Supreme Court reversed the judgments of contempt imposed upon picketers for procedural irregularities held to be violative of due process.

More specifically, the trial court in Alternóse had issued an injunction limiting union picketing. The next day (June 6th) the picketers were arrested for violating the previous day’s order.

It appears that a contempt hearing was held the day following the issuance of the preliminary injunction, i.e., June 6th at 2 p.m. The individual arrestees, albeit not expressly represented, had counsel from the union speak extensively on their behalf. Following testimony by the Sheriff and other witnesses as to the events of the morning, the trial judge called the contemnors individually to the bar of the court for interrogation by him. Of the 129 arrested, 125 were adjudged guilty of civil contempt and fined $100.00. The contemnors were to “stand committed until the sentence of the court [wa]s complied with.”

Later in the day of their incarceration, all were released when the fines were paid for the contemnors by their unions. An appeal was perfected claiming, inter alia, that the contemnors were denied procedural due process. The Supreme Court agreed, but, before holding so, held that the payment of the fines by the contemnors did not render their appeal moot because the trial court acted beyond its authority by not affording the contemnors their procedural due process rights. Such “irregularities” were sufficiently serious to render the case analogous to one where there was no power to act on the part of the trial court. As to the requirements which were not met, the Alternóse Court commented:

The long-standing procedural safeguards attendant upon civil contempt proceedings have been recently reviewed by Mr. Justice O’Brien in Com. ex rel. Magaziner v. Magazines 434 Pa. 1, 253 A.2d 263 (1969). There we stated that civil contempt was a several step process: “rule to show cause why an attachment should not issue, an answer and hearing, rule absolute (arrest), hearing on the contempt citation, adjudication of contempt.” 434 Pa. at 6, 253 A.2d at 266. The court quoted with approval the statement in Douglass-Whisler Brick Co. v. Simpson, 233 Pa. 517, 519, 82 A. 760 (1912), that “arrest and imprisonments of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will afford him an opportunity of being heard.” While it appears that the individual appellants had notice, through the Sheriff, of the injunction [if they did not disperse from the scene], we think it clear that “opportunity of being heard” embraces more than opportunity, after being first arrested and jailed and without time to consult with counsel if desired, to show cause why one should not be held in contempt.
‡ ‡ ‡ H* ‡
Nothing in the reprehensible disobedience of those who heard the Sheriffs reading of the court’s injunction operated to deprive them of the plain mandates of our statutory law, which are but declaratory of the constitutional guarantees of due process of law. See Philadelphia Marine Trade Association [v. International Longshoremen’s Association, Local Union No. 1291] supra, 392 Pa. 500, at 511, 140 A.2d 814 [1958].

449 Pa. at 518, 296 A.2d at 518-19 (Footnote omitted).

At bar, the trial court recounted the events as follows:

Pursuant to Pennsylvania Rule of Civil Procedure 1910.-21, defendant was summoned to an attachment hearing before a Domestic Relations Hearing Officer on the morning of February 4,1993. When an accommodation as to arrearages could not be reached by agreement, the defendant was directed to appear before the undersigned at 1:30 p.m. to determine whether he should be found in contempt for failure to pay the support order. At that hearing, defendant, through his counsel, advanced several defenses. His principal contention was that he had fallen on hard times and now subsists by selling and leasing used cars. He insisted he had no present ability to pay the significant arrearages. In this regard, he told the Court that his earnings in 1992 totaled a mere $8,400. He further indicated that the support order in question was the subject of an appeal which had not yet been resolved.
We determined that even if defendant’s earnings were limited as he claimed, his woeful payment record over the last several years still warranted a finding of contempt. Using defendant’s figures, we determinéd that the difference between what he paid in 1992 and an appropriate support order predicated on minimum wage, would require payment of an additional $1,500. Accordingly, we issued a Contempt Order directing him to pay $1,500 forthwith or be remanded to Montgomery County Correctional Facility pending payment of that sum. The Order also provided that defendant was eligible for work release program. The next day, defendant paid the $1,500 and was released from custody. Defendant has appealed the Order adjudicating him in contempt....
if: Hs ' sfc s¡s
Defendant [] ... challenged] ... the Court’s failure to conduct a hearing with sworn testimony. Instead, the Court engaged in colloquies with the defendant, his counsel and the plaintiff, during which all were invited to state their positions. This is the customary Montgomery County practice where the list judge on any given day is required to deal with numerous contempt cases in a limited amount of time. Sworn testimony will be taken but only at the request of a party. No such request was made here and defendant in no way objected to the conduct of the hearing. Consequently, any criticism of this procedure has been waived.

Trial Court Opinion, 3/30/98 at 2-3, 6 (Emphasis added; footnote omitted; citation omitted).

Initially, we wish to respond to the trial court’s assertion that the present appeal is rendered moot by the Appellant’s payment of the $1,500.00, which prompted his release after serving time in jail.

As in Alternóse, we find that the “irregularities” that accompanied the contempt “colloquy” were violative of the Appellant’s procedural due process rights. For example, the Appellant was given no advance notice (by rule to show cause) of the potential for civil contempt proceedings to follow on the heels of his appearance in the Domestic Relations Division. See Douglass-Whisler Brick Co. v. Simpson, 233 Pa. 517, 519, 82 A. 760 (1912). On the contrary, the Appellant was merely advised to appear for an attachment hearing before a domestic relations hearing officer on the morning of February 4, 1998. Only after arrearages could not be ameliorated was the Appellant “directed to appear before [the trial court] ... at 1:30 p.m. to determine whether [the Appellant] should be found in contempt for failure to pay the support order.”

From our review of the record, it would appear that none of the requirements reiterated in Alternóse, as a condition precedent to finding one in civil contempt, was satisfied. The fact that the trial court may have been “required to deal with numerous contempt cases in a limited amount of time” (see Trial Court Opinion, 3/30/93 at 6), and, therefore, dispensed with the notice and/or the taking of testimony, is not the basis upon which we choose to affirm the order of contempt. Rather, we find that the Appellant’s failure to object to the court’s noncompliance with the procedural shortcomings attendant to the contempt proceeding constituted a waiver of his Alternóse argument.

Our conclusion is predicated upon our Supreme Court’s ruling in Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), which succeeded Alternóse and abolished the “basic and fundamental error” rule allowing for review of an issue not preserved at trial by aligning it with a claim of “basic and fundamental error” to secure appellate scrutiny.

Specifically, Dilliplaine held in unequivocal terms that:

Perhaps at an earlier stage of our jurisprudential development this practice [of counsel not claiming error at trial] could be justified. Today, however, there is no excuse for and appellate courts should not encourage less than alert professional representation at trial. Virtually all active practitioners at our bar have had a formal legal education at a law school accredited by the American Bar Association. The Pennsylvania Bar Institute, Pennsylvania Trial Lawyers Association, and local bar associations as well as the American Bar Association and the American Law Institute provide programs of continuing legal education for members of the bar.
Requiring a timely specific objection to be taken in the trial court will ensure that the trial judge has a chance to correct alleged trial errors. This opportunity to correct alleged errors at trial advances, the orderly and efficient use of our judicial resources. First, appellate courts will not be required to expend time and energy reviewing points on which no trial ruling has been made. Second, the trial court may promptly correct the asserted error. With the issue properly presented, the trial court is more likely to reach a satisfactory result, thus obviating the need for appellate review on this issue. Or if a new trial is necessary, it may be granted by the court without subjecting both the litigants and the courts to the expense and delay inherent in appellate review. Third, appellate courts will be free to more expeditiously dispose of the issues properly preserved for appeal. Finally, the exception requirement will remove the advantage formerly enjoyed by the unprepared trial lawyer who looked to the appellate court to compensate for his trial omissions.

457 Pa. at 259, 322 A.2d at 116-117 (Footnotes omitted).

Moreover, notwithstanding Alternóse, subsequent rulings by this Court have held specifically that failure to object to procedural shortcomings regarding a contempt proceeding results in a waiver of any such error(s) and may not be offered for the first time on appeal. See Travitzky v. Travitzky, 369 Pa.Super. 65, 534 A.2d 1081, 1085 (1987); Fenstamaker v. Fenstamaker, 337 Pa.Super. 410, 487 A.2d 11, 15 (1985).

Admittedly, Justice Pomeroy’s plurality opinion in Altemose, joined by Jones, C.J. and Eagen, J., contains verbage which could be read to allow review of a procedural faux pas presented for the first time on appeal. However, with the admonition in Dilliplaine and its progeny concerning preservation of an issue for review by objection at the appropriate (pre-trial, trial & post-trial) level, we find that the law dictates the course to follow, i.e., we hold the contempt claim of the Appellant waived. Id.; Travitzky, supra; Fenstamaker, supra.

Accordingly, based on the preceding, the appeal taken from the February 4, 1993, order refusing to modify support payments (No. 829 PHL 1993) is quashed; the appeal from a separate order of February 4, 1993, holding the Appellant in civil contempt (No. 830 PHL 1993) is affirmed.

Orders quashed in part and affirmed in part. Jurisdiction is not retained.

      . In the record appears W-2 forms listing the Defendant's earnings for 1988 at $699,078.00 and $390,616.00 for 1989.

      . The Director of Domestic Relations for Montgomery County signed an affidavit that the Defendant owed $101,600.00 as of February 28, 1990.

      . An amended affidavit by the Director of Domestic Relations indicated that the Defendant owed $143,000.00 as of May 4, 1990.

      . "As of February 4, 1993, defendant was $798,779 in arrears on the Order [of December 28, 1989, for $4,600.00 per week], having made a single $100 payment in 1993. Throughout 1991 and 1992, defendant made only twelve payments totalling a mere $2,021.” Trial Court Opinion, 3/30/93 at 1.

      . We have no indication of record for the inordinate delay (almost 3 years) between the 1990 support hearing and the court’s order of February of 1993 affirming the 1989 order of support.

      . The result we reach in this appeal is dictated by the (in)action of the Appellant, who failed to satisfy his responsibility to assure that the official record was complete. This nonfeasance is not to be condoned, nor is it to be remedied by Superior Court taking the initiative to secure the record below and to guarantee that all needed documents have been made a part of the official record. See, e.g., Commonwealth v. Chopak, 532 Pa. 227, 615 A.2d 696, 701 n. 5 (1992); Thomas v. Duquesne Light Co., 376 Pa.Super. 1, 545 A.2d 289, 291 (1988).
      With the burgeoning case load (which stands presently at over 7,200 appeals filed with Superior Court), this Court does not have the luxury of personally checking on the record filed with our prothonotary to assure proper appellate review. This responsibility lies with the Appellant. Id. Notwithstanding such a fact, we took the “extraordinary” step to communicate with the Superior Court prothonotary and we were advised that no hearing transcript (as to the May 7-8, 1990 proceeding) was filed in the case at bar. See In re M.T., 414 Pa.Super. 372, 607 A.2d 271, 276 (1992).
      We may not merely close our eyes to such non-compliance with our Rules of Appellate Procedure, the consequences of which hamstrings our ability to conduct a meaningful appellate review. Each arm of the appellate process (litigants and judiciary alike) has been assigned a responsibility to assure the smooth, efficient and expeditious disposition of appellate cases. See Pa.R.App.P. 1911 et seq. When one cog in the machinery of justice malfunctions, the end result is a backlog of cases which hampers the dispute-resolution process, either by delaying a disposition of the matter or prompting a dismissal of the appeal. See Rule 1911(a), (d).

      . On this concern for expeditious justice, this Court has spoken:
      Promptness in the administration of justice is commendable, but haste which disregards fundamental principles may prove disastrous.

        Commonwealth v. Gabel, 79 Pa.Super. 59, 62, quoted with approval in Altemose Construction Co. v. Building & Construction Trades Council, 449 Pa. 194, 296 A.2d 504, 519 (1972) (plurality opinion), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973).
      Thus, because of our holding that the Appellant has waived his assault upon the court’s failure to comply with the procedural steps reiterated in Alternóse prior to holding one in civil contempt, we leave for another day (i.e., when the issue is preserved for appellate review) our assessment of the propriety of the court’s “expedited” contempt proceedings brought on by a busy court-calendar.


author: BECK, Judge:

text:
    637 A.2d 627
    Dale OATESS, Appellant, v. Richard I. NORRIS, Hearing Examiner at SCI-CS, Robert Porta, a Correctional Officer at SCI-CS, Robert W. Glenny, a Correctional Officer at SCI-CS, J.L. McVicker, a Correctional Officer at SCI-CS and J. Does.
    Superior Court of Pennsylvania.
    Submitted Nov. 22, 1993.
    Filed Jan. 26, 1994.

      Dale Oatess, appellant, pro se.
    Robert S. Englesberg, Pittsburgh, for appellees.
    Before BECK, POPOVICH and CERCONE, JJ.
   BECK, Judge:

This appeal challenges the trial court’s grant of summary judgment in favor of appellees. We affirm.

Appellant, an inmate at the State Correctional Institution at Cresson (SCI-CS), brought this civil rights action against appellees, several corrections officers and a hearing examiner, under the federal civil rights statute, 42 U.S.C. § 1983. In his complaint, appellant alleged violations of his rights guaranteed under the first amendment, specifically, his right of access to the courts. Substantively, appellant contended that in retaliation for a lawsuit he filed against one of the appellees, all appellees conspired together to prevent appellant from proceeding with his case. Appellant charged that appellees created circumstances which caused appellant to be in violation of prison regulations, issued misconducts against appellee for these violations and found him guilty of these misconducts.

Initially, appellees responded to the complaint by way of preliminary objections which were granted by the trial court. The matter was dismissed and appellant appealed. A panel of this court agreed that appellant had failed to state a claim warranting relief, but reversed the order of dismissal and instructed the trial court to allow appellant to amend his complaint. The amended complaint was filed and appellees filed Answers and New Matters. Requests for Admissions were made and complied with and appellees then moved for summary judgment. The motion was supplemented with affidavits from each appellee.

Our standard of review mirrors that of the trial court. Summary judgment “shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Pa. R.Civ.P. 1035(b). In ruling upon a motion for summary judgment, a court must examine the record in the light most favorable to the non-moving party and any doubts are to be resolved against the moving party. Kryeski v. Schott Glass Technologies, 426 Pa.Super. 105, 626 A.2d 595 (1993).

In order to state a valid claim under 42 U.S.C. § 1983, a party must establish two essential elements: 1) that the conduct complained of was committed by a person acting under color of state law, and 2) that the conduct deprived the party of rights, privileges or immunities secured by the Constitution or laws of the United States. Parrat v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981). Appellant’s complaint described four instances over a period of six months wherein he was issued misconducts and, in three of those instances, found guilty of the charges and subsequently punished. He claims that several corrections officers issued misconducts in an effort to preclude and discourage his right of access to the courts and that the hearing examiner found him guilty for the same reasons. Such a claim is clearly sufficient to meet the above-referenced requirements. See Bounds v. Smith, 430 U.S. 817, 821-29, 97 S.Ct. 1491, 1494-99, 52 L.Ed.2d 72 (1977).

In their affidavits accompanying the motion for summary judgment, appellees described the incidents and asserted that all misconducts were issued pursuant to prison procedure and in response to appellant’s disregard or violation of applicable rules. Also attached as supporting material were prison documents memorializing the misconducts and the hearings. Appellant’s response contained no contrary affidavits but included appellees’ response to admissions.

The averments in appellant’s complaint alone cannot defeat appellees’ motion for summary judgment. “When a motion for summary judgment is made and supported ... an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or ... otherwise ... must set forth specific facts showing that there is a genuine issue for trial.” Pa.R.Civ.P. 1035(d). A careful review of appellant’s response to the motion is necessary to determine if he advanced specific facts as required by the rule.

Appellant’s response included no affidavits from himself or any witnesses raising any genuine issues of material fact. In his answer to the motion, appellant asserted that his allegations were adequate because they set forth the dates, names and actions of the wrongdoers. A review of the complaint reveals that for each instance of retaliation alleged, appellant made vague and general references to statements or agreements made among appellees. Appellant alleged that sometime on or before each incident leading to a misconduct, some or all appellees got together and agreed to cause the misconduct to issue. Appellant also alleged that sometime on or before each misconduct hearing, some or all appellees arranged to have appellant found guilty. These allegations, if true, certainly would establish conduct designed to deprive appellant of his civil rights. However, the claims are not supported at all in appellant’s response.

One of the incidents involved the issuance of a misconduct for being present in the prison gymnasium while on Loss of Privilege (LOP) status. At the hearing on this misconduct, appellant was apparently absolved of the charge because although on LOP, prison rules required that he still report to his prison job. In his request for admissions, appellant asked that appellees admit they knew appellant worked in the prison gymnasium. Appellees admitted this fact. Appellant insists that this admission presents a genuine issue of material fact. We disagree. Surely, by the time appellees were served with requests for admissions, they were aware that appellant worked in the gym and further, that appellant was permitted, under prison regulations, to report to the gym while on LOP status. Appellees would have known these facts at the time appellant was exonerated for the misconduct. Their knowledge of these facts at the time admissions were served does not establish that the misconduct itself was bogus. Indeed in the same request for admissions, all appellees denied they “caused” the misconduct to issue and instead asserted that appellant was wholly responsible for the issuance of the misconduct.

In his answer to the summary judgment motion, appellant also asserted that because he had alleged conspiracy, and the existence of a conspiracy is a question for the jury, summary judgment was improper. Again we disagree. Appellant made only .vague and general claims that appellees agreed to retaliate against appellant. The law is clear that “bare allegations of certain statements by a defendant without any other proof of conspiracy, are insufficient to sustain a conspiracy claim.” Gometz v. Culwell, 850 F.2d 461, 464 (1988) (citations omitted). Here, appellant did not even purport to know what was actually said by appellees and instead made general, conclusory assertions that certain appellees “agreed to help” other appellees and that certain appellees requested others to find appellant guilty and those others “agreed to comply with the request.” See e.g. Amended Complaint at ¶¶ 19, 24. Appellant cannot rely on his unsupported claims of conspiracy:

It is not enough, however, for a plaintiff to make merely broad or conclusory allegations concerning the existence of such a conspiracy or to show only that a state official took some action which was, in some way, unfavorable to him____ Rather, plaintiffs must allege with sufficient particularity and show with specific material facts that the [parties] reached some understanding or agreement, or plotted, planned and conspired together, to deprive plaintiffs of a federal right.

Chicarelli v. Plymouth Garden Apartments, 551 F.Supp. 532, 539 (E.D.Pa.1982). We agree with the trial court that, without more than the averments made in the complaint, appellant’s conspiracy claim amounts to “mere conjecture” and “speculation.” Trial Court Op. at 3.

This is not a case in which appellant successfully responded to the motion for summary judgment by setting forth specific facts that contradict the facts asserted in the affidavits of appellees. See Valandingham v. Bojorquez, 866 F.2d 1135, 1139 (9th Cir.1989) (appellant’s response precluded summary judgment by setting forth specific facts showing that there was a genuine issue for trial). Appellant’s opposition to the motion for summary judgment could not be sustained on the basis of his complaint and his response simply did not raise a genuine issue of material fact.

Order granting summary judgment and dismissing case affirmed.


author: HOFFMAN, Judge:

text:
    637 A.2d 630
    Donald HELMS v. Gregory M. BOYLE, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 22, 1993.
    Filed Feb. 15, 1994.

      Matthew D. Dupee, Blue Bell, for appellant.
    Lee E. Sapira, Wyomissing, for appellee.
    Before McEWEN, DEL SOLE and HOFFMAN, JJ.
   HOFFMAN, Judge:

This is an appeal from an order entered January 28, 1993, denying appellant Gregory Boyle’s, petition to strike a default judgment entered by the prothonotary for appellant’s failure to comply with a discovery order. Appellant presents the following issue for our review:

1. Does the Prothonotary have authority to impose the sanction of Default Judgment against a Defendant for an alleged failure to comply with a Discovery Order without hearing by the Court?

Appellant’s Brief at 2. For the following reasons we reverse and remand.

On December 13, 1990, appellee, Donald Helms, instituted action against appellant, Gregory Boyle, for breach of a partnership sales agreement entered into on September 26, 1989. Following the filing of pleadings, appellee propounded a request for production of documents pursuant of Pa.R.C.P. 4009, on September 5, 1991. Having received no response, appellee sent a letter, dated November 1, 1991, reminding appellant’s counsel of his obligation to comply with Pennsylvania Rules of Civil Procedure regarding discovery. On December 2, 1991, appellee’s counsel had a telephone conversation with appellant’s counsel, Matthew D. Dupree, Esq., who stated that appellant would produce the documents by December 9, 1991. Appellee unilaterally extended the deadline to December 16, 1991. No documents were received. See Trial Court Opinion, at 1-2.

On January 9, 1992, appellee filed a motion to compel production and impose sanctions. A rule was issued on January 10, 1992, directing appellant to show cause within thirty (30) days, why the relief, requested by appellee, should not be granted. Appellant failed to respond to the rule. On March 13, 1992, following appellee’s petition to make the rule absolute, the trial court entered an order requiring appellant to produce the documents within fifteen (15) days. The order also stated that failure to comply would result in a default judgment upon praecipe and certification by appellee that the documents had not been produced. On March 31, 1992, appellee filed a certification of no response and praecipe for entry of default with the prothonotary. On the same date, the prothonotary entered judgment against appellant in the amount of $75,000.00 plus interest and costs. Notice of entry of judgment was issued.

On April 9,1992, appellant filed a petition to open judgment. Appellant argued that he had been conducting settlement negotiations with an attorney whom he had believed to be appellee’s counsel. Appellant further stated that they had agreed not to enforce the March 13,1992 order. On August 4, 1992, the court denied appellant’s petition to open judgment. A writ of execution was entered August 13, 1992.

Appellant filed a motion to strike on August 18, 1992, arguing that the prothonotary lacked authority to enter the default judgment. The court entered a rule to show cause why the judgment should not be stricken on August 21, 1992 and all proceedings were stayed pending the decision on the motion to strike. On November 27, 1992, in response to appellee’s petition, the trial court ordered appellant to take depositions or order cause for argument. On January 28, 1993, the trial court denied appellant’s motion to strike. This timely appeal followed.

Appellant contends that the trial court erred in denying the motion to strike default judgment entered by the prothonotary. Essentially, appellant argues that the prothonotary does not have the authority to enter a default judgment under Pa.R.C.P. 4019, upon praecipe of a party, where the court has not made a final determination of default.

This court addressed the issue now before us, in Newsome v. Braswell, 267 Pa.Super. 83, 406 A.2d 347 (1979). In Newsome, appellee filed a motion to compel production of documents, following appellant’s failure to comply with discovery requests. The trial court granted appellee’s motions and ordered appellant to comply within thirty (30) days. The order further stated that failure to comply would result in default judgment upon praecipe of appellee. Appellee, as in the instant case, obtained default judgment by filing a praecipe with the prothonotary. This court struck the default judgment, holding:

the fact that the court, by its ... order, itself authorized a default upon appellee’s praecipe, does not validate the judgment. The court was without power to expand the prothonotary’s ministerial duties beyond that granted by statute or rule.

Id., 267 Pa.Super. at 88, 406 A.2d at 350. The result in Newsome commands that the default judgment be stricken.

Further, this court reiterated in Gotwalt v. Dellinger, 395 Pa.Super. 439, 577 A.2d 623 (1990), that where the prothonotary takes an action beyond his authority, such as the entry of judgment where he is not empowered to do so, his action is considered void and the judgment entered is a nullity and lacks legal effect. Thus because the prothonotary was not authorized to enter a judgment of default without a determination of default by the trial court, the judgment is void and without effect. Accordingly, the default judgment must be stricken.

Order vacated and case remanded for proceedings consistent with this opinion. Jurisdiction relinquished.

      . Appellee asserts that appellant’s failure to comply with several rules of appellate procedure authorize dismissal of this appeal. However, there is no evidence that appellee has been prejudiced by appellant’s failure to timely file or serve a designation or a reproduced record and a certified record is available for review. Additionally, we are unable to proceed upon appellee’s mere allegations, in light of appellant's certification of service, our receipt of appellee’s brief and appellee's failure to raise the issue in his subsequently filed brief. Therefore, we will address the merits of this appeal. Downey v. Downey, 399 Pa.Super. 437, 582 A.2d 674 (1990), allocatur denied.

      . Absent fraud or extraordinary cause, a petition to open, vacate or for reconsideration must be brought within thirty (30) days of the entry of judgment in a contested proceeding, however, a motion to strike a judgment as void, may be brought at any time. See Simpson v. Allstate Ins. Co., 350 Pa.Super. 239, 504 A.2d 335 (1986); Graham v. Kutler, 275 Pa.Super. 188, 418 A.2d 676 (1980).

      . Appellee contends that Pa.R.C.P. 227.4, effective January 1, 1984, following the Newsome decision, invalidates the holding in Newsome. However, a plain reading of Pa.RX.P. 227.4 and its explanatory comment indicates that the rule permits entry of judgment by the prothonotary upon praecipe of a parly only where the fact-finder or the trial court has rendered a final determination, not a prospective order.


author: OLSZEWSKI, Judge:

text:
    637 A.2d 633
    COMMONWEALTH of Pennsylvania, v. William MELSON, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 15, 1993.
    Filed Feb. 16, 1994.

      John J. Kerrigan, Jr., Newtown, for appellant.
    Stephen B. Harris, Asst. Dist. Atty., Warrington, for Com., appellee.
    Before McEWEN, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

William Melson appeals from judgment of sentence for first-degree murder and conspiracy to commit murder. This appeal marks the second time Melson’s case has come before this Court. Melson was initially found guilty of the above offenses by a jury in 1985. The trial court, however, ordered a new trial after determining that Melson’s trial counsel was ineffective for failing to suppress an improper identification. We affirmed the trial court’s order in Commonwealth v. Melson, 383 Pa.Super. 139, 556 A.2d 836 (1989), alloc. denied 525 Pa. 579, 575 A.2d 111 (“Melson /”). Melson was tried again and found guilty of the same offenses. In this appeal, Melson raises a number of issues, including the question of whether a trial court may admit the prior testimony of a witness when the witness refuses to testify even under a proper court order. We find that the trial court acted properly in admitting the evidence and in all other regards. We therefore affirm.

Melson, along with Eugene Banks, was charged with the murder of Robert Malarchik. Banks and Malarchik were business partners in a swingers sex club named “The Woodlands.” Business relations between the two were not good; Banks suspected that Malarchik was under-reporting the income from the club, thereby cheating Banks out of a share of the profits. The relationship further deteriorated when Malarchik excluded Banks from the club. In July of 1982, Banks asked Melson and another person to help him rough up Malarchik. In return for their services, Banks, a chemist, promised to produce methamphetamine for them.

Melson made several attempts to find Malarchik and intimidate him. Each of these attempts were aborted because Melson was either unable to identify Malarchik or locate Malarchik’s house or the Woodlands. In the meantime, Banks’s anger grew. Banks and the two men decided to kill Malarchik by injecting him with cyanide. Banks hoped that the cyanide would make Malarchik’s death appear to be a natural heart attack. On July 14, 1982, Banks, Melson and the third man drove to Malarchik’s home, entered the house and waited for Malarchik to arrive home. When Malarchik arrived, Banks walked outside to meet him and told him that he wanted to talk about financial matters related to the Woodlands. Malarchik said all right and went inside the house with Banks. When Banks and Malarchik began talking in Malarchik’s television room, Melson and the third man entered from another room. Melson was holding a gun. Malarchik became angry and charged Melson. Melson shot him in the leg. There was a struggle and Melson shot Malarchik several more times. During the struggle, the third man strangled Malarchik with an extension cord. Malarchik fell to the ground, still breathing. Melson then shot him in the head. In an overabundance of caution, the three men also submerged Malarchik’s head in a bathtub full of water. Banks later hid the body in a fifty-five gallon drum located on a friend’s property.

Banks was arrested, tried and found guilty of first-degree murder. At the time of Banks’s sentencing, Melson had not yet been charged with any crime. In order to obtain Banks’s cooperation in its prosecution of Melson and an identification of Melson, the prosecutor used a sham subpoena to compel Melson’s presence at Banks’s sentencing. The use of the subpoena had its intended effect, for Banks’s then-girlfriend, Fran Markowitz, identified Melson at the sentencing, and Banks thereafter agreed to cooperate in the prosecution of Melson. Melson was subsequently charged and tried for first-degree murder and convicted. Banks and Markowitz both testified at the trial. The trial court, however, ordered a new trial because Melson’s first counsel failed to suppress Markowitz’s identification which stemmed from the prosecution’s use of the illegal subpoena. Melson was retried on the same charges and found guilty. Banks, however, refused to testify at Melson’s second trial.

I. Right to Confront Witness

Melson contends that the trial court erred in admitting the prior recorded testimony of Eugene Banks in his trial. Prior to Melson’s first trial, Banks was convicted for his role in the Malarchik murder. In preparation for Melson’s trial, the Commonwealth negotiated for Banks’s testimony against Mel-son and also granted Banks immunity. As a result, Banks testified against Melson in his first trial. Prior to Melson’s second trial, however, Banks notified the prosecutor that he would not testify in Melson’s second trial. A pre-trial hearing was called in order to decide whether Banks had a right not to testify. After argument, the trial court informed Banks that he could be required to testify and that if he refused, he would be subject to sanctions.

At Melson’s second trial, Banks was called to the stand and asked his name, at which point he declared that he would exercise his constitutional right not to answer any question. The court reminded him that he did not have any such constitutional right and ordered him to answer. Banks reasserted a right not to testify, whereupon the court found him in contempt and returned Banks to custody. The prosecution moved to have Banks declared unavailable and for the admission of Banks’s testimony from Melson’s first trial. The court found Banks unavailable and admitted the testimony. Melson argues that this violated his constitutional right to confront an adverse witness. We disagree.

Both the United States and Pennsylvania Constitutions guarantee the right of the accused to confront witnesses against him. U.S. ConstAmend. VI; Pa.Const. Art. I, § 9. The right of confrontation entitles a criminal defendant to physically face and cross-examine those who testify against him at his trial. Commonwealth v. Crosland, 397 Pa.Super. 622, 580 A.2d 804 (1990). The purpose behind the rule is to ensure the integrity of the fact-finding process. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Cross-examination offers a defendant a tool to sift the conscience of the witness and test the accuracy of his recollection. Mattox v. United States, 156 U.S. 237, 242-243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895). The presence of the witness at trial allows the jury to look at the witness during cross-examination and judge by his demeanor whether he is worthy of belief. Id. The witness’s presence also ensures reliability in other ways: one, the witness will have more difficulty lying against someone if the witness is required to physically face the person at trial; and two, the witness will be required to take the oath— “thus impressing him with the seriousness of the matter and guarding against the lie by the penalty of perjury.” Ohio v. Roberts, supra, 448 U.S. at 64 n. 6, 100 S.Ct. at 2537 n. 6.

The right to confront an adverse witness, however, is not absolute and must “occasionally give way to considerations of public policy and the necessities of the case.” Crosland, supra, at 626, 580 A.2d at 806 (quoting Commonwealth v. Kravontka, 384 Pa.Super. 346, 351, 558 A.2d 865, 868 (1989)). Where the prosecution establishes that a witness is unavailable, hearsay evidence is admissible provided that the evidence is marked with such trustworthiness that there is no material departure from the reason for general hearsay rule. Ohio v. Roberts, supra, 448 U.S. at 65, 100 S.Ct. at 2538; see also Synder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). In general, evidence is sufficiently reliable if it falls within a firmly rooted hearsay exception. Ohio v. Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539. The Supreme Court has on several occasions affirmed the admission of hearsay evidence under the prior testimony exception. See e.g., Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972).

The trial court found Banks unavailable and admitted his testimony at trial pursuant to the prior testimony exception to the hearsay rule. “The rationale for admitting former testimony is that cross-examination, the oath, the solemnity of the occasion, and the accuracy with which the statement was recorded assure a high degree of reliability.” Packel and Poulin, Pennsylvania Evidence, § 804.1 (West 1987); see also Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968) (prior testimony substantially complies with Confrontation Clause because the defendant is given an opportunity to cross-examine the witness). Melson contends that the trial court erred in admitting Banks’s testimony because the prosecution did not adequately establish that Banks was unavailable to testify. Appellant also contends that Banks’s prior testimony is not sufficiently trustworthy to be admitted as an exception to his right to confrontation. We disagree with both contentions.

(a) Unavailability

The trial court declared Banks unavailable after Banks persisted in refusing to testify even under a proper court order. The test for availability under the Sixth Amendment is broad: a witness is unavailable if the prosecution has made a good faith effort to introduce its evidence through the live testimony of the witness and, through no fault of its own, is prevented from doing so. Ohio v. Roberts, supra, 448 U.S. at 74, 100 S.Ct. at 2543 (the “ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present that witness”); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (although physically present in the courtroom, witness was unavailable for Sixth Amendment purposes when the State made every effort to introduce its live testimony through its witness but witness claimed lack of memory); Commonwealth v. Jones, 344 Pa.Super. 420, 430, 496 A.2d 1177, 1182 (1985) (“true test of unavailability is the unavailability of the witness’s testimony, not his or her person”); Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977) (witness is unavailable if he invokes the privilege against self-incrimination).

Banks’s refusal to testify clearly fits within this test. In preparation for Melson’s trial, the Commonwealth negotiated an agreement for Banks’s live testimony and granted Banks immunity. After learning that Banks would refuse to testify at Melson’s second trial, the prosecution brought the matter to the attention of the trial court in a pre-trial hearing. The trial court informed Banks that he could be ordered to testify. At Melson’s second trial, the prosecution properly called Banks to the stand. Banks then refused to testify even under court order.

Melson offers several arguments against the trial court’s finding of unavailability. Melson’s first argument is that Banks cannot be labeled unavailable until sanctions have been used to force him to testify. When the trial court found Banks in contempt, it decided to return Banks to custody immediately and defer the question of sanctions until a later date. Melson submits that Banks should not have been found unavailable until after the Court had fashioned some punitive measure such as solitary confinement to put pressure on Banks. We disagree. Whether the trial court has imposed sanctions on a recalcitrant witness is irrelevant to whether the witness is unavailable. The test for unavailability is whether the prosecution has made a good faith effort to produce the live testimony of the witness. Ohio v. Roberts, supra, 448 U.S. at 74, 100 S.Ct. at 2543. The length to which the prosecution must go to produce the testimony is a question of reasonableness. Id.; California v. Green, supra, 399 U.S. at 189 n. 22, 90 S.Ct. at 1951 n. 22 (concurring opinion). The prosecution here spared no effort in attempting to produce Banks’s live testimony. The prosecution properly obtained an order directing Banks to testify. The request for the order represents the limits of the prosecution’s authority. Banks refused to obey the trial court’s order. Whether sanctions should be imposed for Banks’s conduct is a matter for the trial court and lies outside the prosecution’s bailiwick.

Furthermore, we agree with the trial court’s decision to defer the question of sanctions. The decision was obviously due to practical concerns. The court had to the weigh the cost of delaying the trial against the likelihood that sanctions would force Banks to testify. Banks was already serving a life sentence. Where a witness is already serving a life sentence, the possible impact of sanctions is minimal. It would have been, therefore, impractical to delay the trial on the slim hope that Banks might eventually testify.

Moreover, a contrary decision would, in effect, confer upon Banks the power to delay, if not prevent, Melson’s prosecution. We refuse to place that awesome power in an individual who is not likely to protect the best interest of the public. We also note that Banks would have incredible bargaining leverage over the Commonwealth if he could delay the trial. There is evidence that Banks attempted to use his refusal to testify as a means of getting a retrial in his own case. N.T., 9/24/90, D-l. Banks would obviously have the upper hand on the Commonwealth if he could personally delay Melson’s prosecution. The application of sanctions, moreover, would do little to level the playing field since Banks, who is already incarcerated, has almost nothing to lose by going into solitary confinement.

Melson’s second argument is that Pennsylvania statutory law does not authorize the admission of prior testimony when a witness refuses to testify. Section 5917, 42 Pa.C.S.A., which provides for the use of prior testimony in criminal trials, only authorizes the use of prior testimony if the witness is: (1) deceased, (2) out of the jurisdiction, (3) cannot be found, or (4) incompetent. Melson argues that because § 5917 does not provide for the admission of prior testimony when a witness refuses to testify, the trial court was not authorized to admit Banks’s testimony.

While we agree that § 5917 does not authorize the admission of Banks’s prior testimony, § 5917 is not the sole means by which prior testimony may be admitted in a criminal trial. See Commonwealth v. Von Smith, 303 Pa.Super. 534, 450 A.2d 55 (1982); see also Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980); Commonwealth v. Graves, 484 Pa. 29, 398 A.2d 644 (1979); Commonwealth v. Rodgers, supra. Prior testimony may also be admitted if it meets the requirements of the common law exception to the hearsay rule: the witness is unavailable and the defendant had counsel and full opportunity to cross-examine the witness at the prior proceeding. Commonwealth v. Rodgers, supra. Since Bank’s prior testimony meets these requirements, it is admissible regardless of § 5917.

Melson’s last argument is that the prosecution cannot claim that Banks is unavailable because it caused the unavailability. According to Melson, the prosecution caused Banks’s unavailability because it reneged on the agreement it negotiated for Banks’s testimony. But for the prosecution reneging, argues Melson, Banks would have testified. We find this contention meritless.

First, the record indicates that Banks, and not the Commonwealth, reneged on the deal he struck with the prosecution. See N.T., 9/24/90, D-l; trial court opinion, 2/2/93, at 3-4. Banks tried to use his testimony in Melson’s second trial as means to extract further concessions from the Commonwealth. The Commonwealth was not under any duty to accommodate Banks’s demands. Second, even if it can be said that the Commonwealth caused Banks’s absence in a “but for” sense, we still find that the Commonwealth is not per se precluded from claiming the witness is unavailable. The prosecution is not under any duty to negotiate for the testimony of any witness. Consequently, the prosecution’s failure to negotiate a deal or to go through with an agreement, absent perhaps a showing of bad faith, is not the proximate cause of a witness’s refusal to testify.

(b) Reliability

Any hearsay evidence admitted in contravention of a defendant’s right to confrontation must be sufficiently trustworthy that admission of the evidence does not offend the purposes of the general hearsay rule. Ohio v. Roberts, supra; Commonwealth v. Crosland, supra. Melson claims that Banks’s prior testimony is not sufficiently reliable to be admitted in contravention of his right to confront adverse witnesses. Melson claims that Banks’s prior testimony is unreliable because: (1) the testimony was secured through an agreement with the Commonwealth, (2) the testimony was inconsistent with the testimony Banks gave at his own trial, and (3) Banks refused to testify at Melson’s second trial. We find the prior testimony was sufficiently reliable to be admitted.

In Ohio v. Roberts, the Supreme Court expressly stated that hearsay evidence is sufficiently reliable without more if it falls within a firmly rooted hearsay exception. 448 U.S. at 66, 100 S.Ct. at 2539; see also White v. Illinois, — U.S. —, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992); Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Banks’s prior testimony clearly falls within the prior testimony exception to the hearsay rule. Banks was under oath at Melson’s first trial and subject to cross-examination by Melson’s attorney. Prior testimony is considered reliable because the requirement that the defendant have a full opportunity to cross-examine the witness substantially complies with the requirements of confrontation. On the other hand, similar to admissibility of live testimony at trial, the admissibility of prior testimony does not turn on the actual credibility of the witness. In Ohio v. Roberts, the defendant argued that a witness’s prior testimony was not sufficiently reliable to be admitted because there was extrinsic evidence that the witness had motives to lie in her prior testimony. The Supreme Court, however, refused to embark on a particularized search for indicia of reliability. Id., 448 U.S. at 73, 100 S.Ct. at 2542. The Court noted that the accouterments of the preliminary hearing sufficiently guaranteed the trustworthiness of the testimony for purposes of admitting the evidence in contravention of the defendant’s right to confrontation. Id.

The criticisms that Melson makes of Banks’s testimony concern the credibility of Banks’s testimony and not its reliability, for it is not disputed that Banks’s prior testimony meets the actual requirements of the hearsay exception. Banks’s potential lack of credibility does not render his testimony inadmissible under Ohio v. Roberts. Whether Banks’s testimony should be credited is a matter for the jury, who may choose to believe all, part, or none of it. Commonwealth v. Westcott, 362 Pa.Super. 176, 523 A.2d 1140, alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987). We also note that the jury was fully aware of the inconsistencies in Banks’s testimony and the terms of the deal he received from the prosecution. During closing, Melson vigorously argued that these circumstances indicated that Banks’s testimony lacked credibility. See e.g., N.T., 10/4/90, at 910.

Melson also argues that Banks’s refusal to testify indicates his prior testimony is untrustworthy and, therefore, is inadmissible. We disagree. Banks’s decision not to testify was motivated by a desire to extract new promises from the prosecution in exchange for his live testimony. This motivation does not indicate that prior testimony was false. We agree that where a witness refuses to testify a second time on the grounds of the privilege against self-incrimination, an inference arises that the witness’s first testimony was false. See Crosland, supra. In such circumstances, the prosecution can only introduce the prior testimony if the trial court informs the jury that the witness’s refusal to testify is based on a fear that he will be prosecuted for perjury in his prior testimony. Id. This rule, however, does not apply to the present case. Banks was granted immunity for his testimony in both of Melson’s trials; consequently, he has no reason to fear that he will be subject to a perjury prosecution even if his testimony in the second trial establishes that his prior testimony was false. Banks’s refusal to testify, therefore, does not create an inference that his prior testimony was false.

II. Right to a Fair Trial

Melson also contends that the admission of Banks’s prior testimony violated his right to a fair trial because his trial counsel from the first trial was ineffective in his cross-examination of Banks. In 1974, Melson had a sexual relationship with Banks’s then wife, Marlene Banks. Melson alleges that Banks’s testimony against him is motivated by a desire to get revenge against Melson for the prior affair. Melson’s first trial counsel did not cross-examine Banks on the existence of the affair. Melson argues that counsel was ineffective in failing to do so and that admission of Banks’s prior testimony in his second trial denied him a fair trial since it saddles him again with his counsel’s ineffectiveness. Assuming arguendo that counsel was ineffective, we still find that the admission of Banks’s prior testimony did not violate Melson’s right to a fair trial.

Where the prior testimony is tainted by counsel’s ineffectiveness, the prior testimony may not be admitted if admission would deny the defendant his right to a fair trial. Commonwealth v. Mangini, 493 Pa. 203, 425 A.2d 734 (1981); see also Mancusi v. Stubbs, supra. In Mangini, the defendant argued that the trial court erred in admitting a witness’s prior testimony because his counsel failed to object to the •witness’s competency where there were strong indications for doing so. The Pennsylvania Supreme Court found that there was no reasonable basis for failing to object to the witness’s competency and agreed that the admission of the prior testimony violated the defendant’s right to a fair trial. Id. at 210, 425 A.2d at 739. The Court in Mangini, however, cautioned that it was not making a per se rule requiring exclusion of any testimony from a prior trial wherein trial counsel was found ineffective. Id. The Court’s decision to exclude the prior testimony was premised upon the fact that the ineffectiveness of the prior counsel could not be effectively cured in the second trial. Id. We find that where remedial measures in the retrial effectively cure the prejudice caused by counsel’s alleged ineffectiveness, admission of the prior testimony does not violate a defendant’s right to a fair trial. This conclusion is supported by the long established rule that a defendant is not entitled to a new trial for ineffective assistance of counsel absent a showing of prejudice. See e.g., Commonwealth v. Perlman, 392 Pa.Super. 1, 572 A.2d 2 (1990); Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). We find that steps taken in Melson’s second trial effectively remedied any potential prejudice caused by counsel’s failure to cross-examine Banks on the existence of the affair between Melson and Marlene Banks.

Prior to Melson’s second trial, the parties stipulated to the existence of the affair between Melson and Marlene Banks. The trial court subsequently read the stipulation to the jury prior to closing arguments. N.T., 10/4/90, at 881. The evidence of the affair was also introduced through another witness. N.T., 10/3/90, at 736. During his closing argument, Melson’s attorney argued to the jury that Banks’s adverse testimony was motivated by revenge. N.T., 10/4/90, at 904. We find that the stipulation and the fact that Melson’s counsel argued that Banks’s testimony was motivated by revenge sufficiently cured any potential prejudice caused by the first counsel’s failure to cross-examine Banks on the affair. Consequently, the admission of Banks’s former testimony did not result in a constitutional violation of Melson’s right to a fair trial.

Melson contends that these remedial steps did not adequately cure the prejudice caused by his counsel’s ineffectiveness. Melson correctly points out that the jury in the second trial did not have the opportunity to observe Banks’s demean- or and attitude while he was being cross-examined about the affair. We note, however, that even if Banks had been cross-examined on the affair in the first trial, the jury in the second trial would still not be able to judge his demeanor, since Banks’s testimony was read by the prosecution. Consequently, the inability of the jury to observe Banks’s demeanor was caused by Banks’s unavailability and not by trial counsel’s alleged ineffectiveness.

Melson also contends he was prejudiced by the fact that the jury was deprived of an opportunity to learn what Banks’s verbal response would be to any question concerning the affair. We disagree. Prejudice is determined by an evaluation of whether “but for” the arguably ineffective act or omission, there is a reasonable probability that the result would have been different. Commonwealth v. Petras, supra. We are not persuaded that it is probable that Banks’s actual answers to cross-examination would have changed the result in the second trial.

First, Melson has not established that Banks even knew about the affair. The stipulation between the parties states that Banks never gave his former wife any indication that he knew about the affair. N.T., 10/4/90, at 881. The conclusion that Banks did not know about the affair is also supported by the fact that Banks and Melson continued to be associates after the affair occurred. If Banks did not know about the affair, obviously it could not have affected his testimony. Consequently, the cross-examination of Banks on the affair might have been entirely fruitless.

Second, even if Banks did know about the affair, the evidence of record indicates that it would not have affected his testimony. As stated above, Banks and Melson continued to be associates after the affair occurred. If Banks truly wanted to harm Melson, we doubt that he would continue to associate with Melson and wait eight years to extract his revenge. Cross-examination of Banks on the affair would probably do nothing more than underscore the fact that Banks had a possible motive for lying. This was effectively accomplished by the stipulation and the closing argument of counsel.

III. Prior Bad Acts

Melson contends that the court erred in allowing the Commonwealth to introduce evidence regarding his involvement in the sale of methamphetamine, a controlled substance. Specifically, Melson contends that the trial court should have prohibited the Commonwealth from introducing evidence that Banks promised to manufacture methamphetamine for Melson in exchange for Melson’s help in murdering Malarchik and that Melson sold methamphetamine from 1974 until the time of the murder in 1982. Melson contends that the evidence was irrelevant and highly prejudicial to him since it painted him as a drug dealer. The decision to admit evidence of prior bad acts is committed to the discretion of the trial judge and will not be reversed on appeal absent an abuse of discretion. Commonwealth v. Tedford, 523 Pa. 305, 567 A.2d 610 (1989). We find no such abuse.

In general, the Commonwealth may not introduce evidence of prior crimes or bad acts to show a defendant’s bad character or his propensity to engage in criminal activity. Tedford, supra. The evidence is excluded in order to prevent a defendant from being convicted based upon prior unrelated bad acts, instead of his involvement in the present crime. Where prior bad acts, however, are relevant to whether defendant committed the present crime, evidence of such crimes may be admitted even though admission results in prejudice to the defendant. Commonwealth v. Gelber, 406 Pa.Super. 382, 594 A.2d 672 (1991); Commonwealth v. Hall, 523 Pa. 75, 565 A.2d 144 (1989). In particular, evidence of prior crimes is admissible if it is relevant to proving: (1) motive, (2) intent, (3) absence of mistake or accident, (4) a common scheme, plan or design, or (5) identity. Gelber, supra. The Commonwealth may also introduce evidence of prior bad acts if they “form part of a chain or sequence of events which form the history of the case and were part of its natural development.” Tedford, supra, 523 Pa. at 328, 567 A.2d at 621.

Evidence that Banks promised to manufacture methamphetamine for Melson in exchange for Melson’s murder of Malarchik is clearly admissible to establish that Melson had a motive to kill Malarchik. Melson and Malarchik were complete strangers to each other. Banks’s promise helps explain why Melson would intentionally kill a complete stranger. Evidence of Melson’s past involvement with methamphetamine was also admissible since it helps explain why Banks’s offer would motivate Melson to murder Malarchik. An offer to produce methamphetamine would only influence a person who is involved in the distribution of methamphetamine, or perhaps other illegal drugs.

IY. Prosecutorial Misconduct

Melson also complains that his case should have been dismissed because prosecutorial misconduct denied him a fair trial. Banks was tried and convicted of murder prior to Melson’s trial. At the time of Banks’s trial, Melson had not yet been charged with the murder of Malarchik. The prosecutor used a unlawful subpoena to compel Melson’s presence at Banks’s sentencing. The admitted purpose of the unlawful subpoena was to assist the prosecution in building its case against Melson. The prosecutor hoped that Melson’s presence at Banks’s sentencing would induce Banks to cooperate with the prosecution in its expected case against Melson. The prosecution also hoped to gain an identification of Banks by Fran Markowitz, Banks’s girlfriend at the time of the Malarchik murder. The subpoena accomplished both goals, for Markowitz identified Melson at the sentencing hearing and Banks agreed to cooperate.

In Melson I, this Court found that the subpoena was illegal since it was used to obtain evidence against Melson, instead of being legitimately used to compel Melson’s testimony against Banks at his sentencing hearing. We agreed that Markowitz’s identification, which stemmed from the procedure, was tainted and should have been suppressed by Melson’s trial counsel in the first trial. Consequently, we affirmed the trial court’s order granting a new trial. Melson now complains that his case should have been dismissed prior to his second trial because the prosecution’s use of the subpoena was intended to deprive him of a fair trial. We disagree.

First, Melson mischaraeterizes the prosecution’s use of the subpoena. The purpose of the subpoena was to obtain evidence against Melson, not deny his right to a fair trial. See Melson I, supra, 383 Pa.Super. at 146, 556 A.2d at 839 (“The dominant purpose of the subpoena was to engineer a confrontation between Commonwealth witnesses and suspects in order to gain either additional evidence or the identification of a co-conspirator, in this case, Melson.”). Second, the subpoena did not deny Melson a fair trial. Neither Melson’s access to evidence, nor his right to present evidence were in any way affected by the subpoena.

While we disapprove of the prosecution’s use of the subpoena, the solution is to cure the prejudice caused by the subpoena, not simply let the defendant go. In Melson I, this Court determined that Melson was entitled to suppress evidence obtained through the subpoena. Consequently, we agreed that Markowitz’s identification should be suppressed. This suppression of Markowitz’s identification adequately vindicated Melson’s rights.

Y. Right to an Impartial Jury

Melson, an African-American, contends that his Sixth Amendment right to an impartial jury was violated because the jury was selected from a panel that included no members of his race. Melson argues that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), requires that a jury be selected from a panel that includes members of a defendant’s race. We disagree.

The Federal Constitution prohibits all forms of purposeful racial discrimination in the selection of jurors. Id. In Batson v. Kentucky, the Supreme Court reaffirmed that the Sixth and Fourteenth Amendments prohibit the prosecution from using peremptory strikes to purposely exclude members of a defendant’s race from the jury on account of their race. The Court’s rationale was two-fold. First, a defendant’s right to an impartial jury requires that the selection of a jury be governed by non-discriminatory criteria. Id. at 86, 106 S.Ct. at 1717. Second, selection procedures that purposefully exclude jurors on the basis of race undermine public confidence in the fairness of our system of justice. Id. at 87, 106 S.Ct. at 1718.

While we give due consideration to Batson v. Kentucky and its lineage, we fail to see how it applies here. There is no evidence of record which indicates that the selection of Mel-son’s jury panel involved purposeful discrimination. It is well-settled that the Sixth Amendment does not require that the jury perfectly mirror the community and reflect the various distinctive groups in the population. Id. at 85 n. 6, 106 S.Ct. at 1717, n. 6; Commonwealth v. Jones, 465 Pa. 473, 350 A.2d 862 (1976). Consequently, the fact that Melson’s panel lacked members of his race does not establish a violation of his constitutional right to an impartial jury. In Commonwealth v. Jones, supra, the defendant argued that his right to an impartial trial was violated because the number of black jurors on his petit jury was disproportionate to the number of blacks living in the county in which he was being tried. The Pennsylvania Supreme Court rejected the defendant’s claim, stating “a defendant in a criminal prosecution is not constitutionally entitled to demand a proportionate number of his race on the jury panel that tries him.” Id. at 479, 350 A.2d at 866.

Melson further argues that a pre-trial hearing should have been held on whether his right to an impartial jury had been violated. In Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973), the Pennsylvania Supreme Court ruled that a defendant is entitled to a pre-trial hearing if he establishes a prima facie violation of his right to an impartial jury. This rule, however, does not apply to Melson, for his allegations do not establish the violation of any constitutional right. At the very least, a defendant must allege that the under-representation of his race on the jury panel is due to a systematic exclusion of the group in the jury selection process. Commonwealth v. Henry, 524 Pa. 135, 143, 569 A.2d 929, 933 (1990), cert. denied, 499 U.S. 931, 111 S.Ct. 1338, 113 L.Ed.2d 269 (citing Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979)). Melson does not allege any such systematic exclusion, rather, he merely complains that his race was under-represented. As stated before, the fact that a defendant’s jury does not proportionately mirror identifiable groups in the community does not by itself indicate any constitutional violation.

VI. Sufficiency of the Evidence

Defendant challenges the sufficiency of the evidence in his conviction for first-degree murder. The standard applied in reviewing a sufficiency claim is well-settled:

We must determine whether, viewing all the evidence at trial, as well as all reasonable inferences to 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. Both direct and circumstantial evidence can be considered equally when assessing the sufficiency of the evidence.

Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), affd, 531 Pa. 42, 611 A.2d 175 (1992); see also Commonwealth v. Baker, 531 Pa. 541, 614 A.2d 663 (1992).

First-degree murder is defined as the intentional killing of another human being. 18 Pa.C.S.A. § 2501-2502. Banks’s testimony indicates that Melson killed Malarehik in exchange for Banks’s promise to manufacture methamphetamine. N.T., 10/1/90, at 219-226. On the basis of this testimony, the jury could have properly concluded beyond a reasonable doubt that Melson intentionally killed Malarehik. Melson contends that Banks’s testimony is insufficient to convict him because of the “incredible inconsistencies of his stories.” Appellant’s brief at 39. This bare-bones argument does not present sufficient material for this Court to review Melson’s complaint. Furthermore, we note Melson’s argument clearly ignores our standard for reviewing sufficiency arguments. We are obligated to review the evidence in the light most favorable to the Commonwealth. Since the jury believed Banks’s testimony, we must assess the sufficiency of the evidence from the viewpoint that Banks’s testimony implicating Melson is credible.

VII. Prejudicial Remark

Melson’s last contention is that he was denied a fair trial because the trial court made a prejudicial remark. Before trial, the parties agreed that they would refer to Melson’s first trial as a “prior proceeding”, and not as a prior trial. After the prosecution read Banks’s prior testimony to the jury, the trial court explained to the jury that the prosecution had read an excerpted version of Banks’s prior testimony. The testimony did not include any question and answer where an objection had been sustained in the first trial, nor did the prosecution read any legal arguments made during the course of Banks’s prior testimony. The trial court informed the jury that the testimony was excerpted so that the jury members would not be under the impression that Banks’s testimony in the prior trial went as smoothly as it was read. During the course of its explanation, the trial court inadvertently referred to the Melson’s first trial as a trial, instead of a “prior proceeding.” Melson contends that the trial court’s remark prejudiced his right to a fair trial.

First, we note that Melson’s counsel neither objected to the court’s reference, nor asked for a curative instruction. We find that the failure of Melson’s counsel to bring the possible prejudicial error to the attention of the trial court constitutes a waiver of the objection. See Commonwealth v. Gordon, 364 Pa.Super. 521, 528 A.2d 631, alloc. denied, 517 Pa. 621, 538 A.2d 875 (1987). Counsel’s failure to object deprived the trial court of an opportunity to fashion a curative instruction that might remedy any potential prejudice.

Second, assuming arguendo that the trial court’s remark was prejudicial to Melson, we still find that he is not entitled to a new trial. It is well-settled that not every prejudicial remark by the prosecutor or the trial court will result in the granting of a new trial. Commonwealth v. Goins, 508 Pa. 270, 495 A.2d 527 (1985). A new trial is only required when the unavoidable effect of the remark is to “prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a fair verdict.” Commonwealth v. Anderson, 501 Pa. 275, 282, 461 A.2d 208, 211 (1983). The trial court’s remark was so insignificant it could not possibly have compromised the jury’s ability to render a fair verdict.

Judgment of sentence affirmed.

      . Banks previously manufactured methamphetamine for Melson in 1974, eight years prior to Malarchik’s murder. Banks stopped manufacturing methamphetamine after he was arrested in 1974 for possession of illegal chemicals. Banks was apparently an important supplier to Melson. Several times during the years between 1974 and Malarchik's murder, Melson asked Banks to manufacture more methamphetamine. Banks, however, refused these requests.

      . We note that the Federal Rules of Evidence specifically allow for a finding of unavailability in such circumstances. Rule 804(a)(2) provides: " 'Unavailability as a witness includes situations in which the declarant ... (2) persists in refusing to testily concerning the subject matter of his statement despite an order of the court to do so.” We are unable to find a federal case challenging the constitutionality of this rule on its face.

      . It is not clear from the record whether Melson’s counsel even knew about the affair at the time of the first trial. If, through no fault of his own, Melson’s counsel was unaware of the existence of the affair during the first trial, we could not find him ineffective for failing to cross-examine Banks on it.

      . In Commonwealth v. Bazemore, 531 Pa. 582, 614 A.2d 684 (1992), the Pennsylvania Supreme Court ruled that a witness's prior testimony from a preliminary hearing was not admissible at trial because the Commonwealth failed to disclose to the defense vital impeachment evidence regarding the witness prior to the preliminary hearing. The Court concluded that the Commonwealth’s non-disclosure of the vital evidence denied the defendant a full and fair opportunity to cross-examine the witness. The witness’s testimony did not consequently meet the requirements of the prior testimony exception. The Commonwealth argued that the witness’s prior testimony was admissible because the defendant had the opportunity to indirectly impeach the witness by introducing the vital impeachment evidence at trial. The Court, however, rejected this argument on the ground that the indirect impeachment was not an adequate substitute for the live cross-examination.
      While we are bound by the Supreme Court’s ruling in Bazemore, we find that the case is inapposite to the facts sub judice. First, it is clear the Commonwealth is in no way responsible for the alleged failure of Melson’s counsel to cross-examine Banks on the affair. Second, we do not find that the affair constituted vital impeachment evidence. In such circumstances, we find that introduction of the impeachment evidence at trial was an adequate substitute for live testimony.

      . The only evidence in the record regarding the selection process is this statement of the trial judge:
      Jury panels are selected by computer. We have a new and different panel in here every day. I don’t know that we even know what race the juries represent when they are selected. The entire jury panel for a year is some 35, 37,000 jurors. I'm not certain but I believe and this could be bourne out I suspect—that our percentage of black jurors over time is almost double the percentage of black persons living in the county.
      N.T., 9/27/90, at 7, 8.

      . The inadvertent remark occurred during the following explanation to the jury:
      While we are going over this thing, while they are checking the record out, members of the jury, one thing that I neglected to inform you. As a result of the prior hearing we had with the witness Eugene Banks, we did have some anticipation this might happen just this way, and what we have done is gone over the prior transcript, we have eliminated both question and answer if it was sustained, and also where there was argument and discussion about the questions on the objections we have cleaned that all up, so it will read very smoothly. We just didn’t want you to get the idea that the trial was a whole lot smoother and there weren’t objections and things of that sort, but since we had that testimony, we have cleaned it up completely insofar as objections and things of that nature are concerned. So that is why it will read the way it does.
      N.T., 10/1/90, at 202-203 (emphasis added).

      . Melson’s brief also contains the following question presented: "Did the court err in certain evidentiary rulings.” An appellant is required to present questions that identify specific rulings by the trial court or contain specific legal questions. Commonwealth v. Sanford, 299 Pa.Super. 64, 445 A.2d 149 (1982). The above question does neither and, thus, presents no issue for appellate review. The intent of Melson's counsel in framing such a general question was obviously to do an end run around the Rules of Appellate Procedure. In the argument portion of his brief, Melson’s counsel incorporates nine issues under this question. These issues are in addition to the other eight questions he presents, which brings the total number of issues presented to 17. While there is no limit to the number of questions an appellant may present, an appellant is limited to one page of reviewable questions. Pa.R.A.P. 2116. Melson's counsel apparently incorporated his nine issues into one general question in order to avoid violating this rule.
      We also note that none of the evidentiary errors alleged by Melson are reviewable. Melson merely lists the alleged errors without any argument. Melson's failure to develop his argument concerning these issues constitutes waiver of his claims. See Commonwealth v. Gonzalez, 415 Pa.Super. 65, 608 A.2d 528 (1992); Commonwealth v. Long, 367 Pa.Super. 190, 532 A.2d 853 (1987), alloc. denied, 518 Pa. 617, 541 A.2d 744 (1988).