author: HUDOCK, Judge.

text:
    626 A.2d 606
    Joyce A. WEST and Brian West, Her Husband, Appellants, v. Edward ANDERSEN, D.O., Arthur Dortort, D.O., Clarion Osteopathic Community Hospital, Evelyn Spence, R.N., Appellees.
    Superior Court of Pennsylvania.
    Submitted March 8, 1993.
    Filed June 14, 1993.

      John G. Achille, Brookville, for appellants.
    Terrence F. McVerry, Pittsburgh, for Andersen, appellee.
    Sean J. McLaughlin, Erie, for Dortort, appellee.
    Thomas J. McClain, Pittsburgh, for Clarion Osteopathic, appellee.
    Cathie J. Fagan, Pittsburgh, for Spence, appellee.
    Before CIRILLO, HUDOCK and BROSKY, JJ.
   HUDOCK, Judge.

This is an appeal from the judgment entered August 7, 1992, awarding counsel fees in favor of Appellees for the failure by Appellants to be deposed on March 17, 1992. We quash.

This case is a medical malpractice action. During the discovery phase, Appellees Clarion Osteopathic Community Hospital and Evelyn Spence, R.N., served a notice of deposition on Appellant Joyce A. West. Although she and her counsel were present, no deposition took place. Appellees filed a motion for sanctions asking the court to award counsel fees for the failure of Appellant’s counsel to permit the deposition to take place. The court entered an order granting the counsel fees.

Appellants raise the following issue in their appeal:

I. Are the Appellees entitled to Discovery Sanctions in the form of attorney’s fees when no prior discovery order had been issued where Appellant acted in good faith in canceling the deposition when one attorney and one party failed to appear dispite [sic] proper notice and Appellant appeared for a deposition without the need of a motion to compel or for sanctions?

Appellants’ Brief at p. 3.

We must first determine whether Appellants have appealed from a final order, because

[i]t is fundamental,
that an appeal will lie only from a final order unless otherwise permitted by statute. A final order is one which ends the litigation or, alternatively, disposes of the entire case.... Conversely, an order is interlocutory and not final unless it effectively puts the litigant out of court____
In ascertaining what is a final appealable order ... we must look beyond the technical effect of the adjudication to its practical ramifications.... The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications.
Praisner v. Stocker, 313 Pa.Super. 332, 336-37, 459 A.2d 1255, 1258 (1983) (citations and quotations omitted).

Dorohovich v. West American Ins. Co., 403 Pa.Super. 412, 415, 589 A.2d 252, 254 (1991).

The trial court in our case based its decision on Pa.R.C.P. 4019(a)(l)(iv), 42 Pa.C.S., which reads as follows:

(a)(1) The court may, on motion, make an appropriate order if
(iv) a party or an officer, or managing agent of a party or a person designated under Rule 4007.1(e) to be examined, after notice under Rule 4007.1, fails to appear before the person who is to take his deposition^]

It is from this order that Appellants appeal. In support of their position that the order is a final appealable order, they cite our previous decisions of Jerry Pitell Co., Inc. v. Penn State Construction, Inc., 277 Pa.Super. 575, 419 A.2d 1299 (1980) and Paul v. Paul, 281 Pa.Super. 202, 421 A.2d 1219 (1980). In both of these cases we found that the grant of counsel fees was a final appealable order while the denial of counsel fees was interlocutory. In a later case, Markey v. Marino, 361 Pa.Super. 92, 521 A.2d 942 (1987), alloc. den., 516 Pa. 614, 531 A.2d 781, we found that the grant of counsel fees is interlocutory. The decision in Markey makes uniform our treatment of counsel fees as discovery sanctions. Later that same year our Supreme Court, in Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987), held that an order imposing discovery sanctions is an interlocutory order, not appealable as of right. In Bruno, the trial court ordered the defendant’s New Matter stricken as a result of the failure to answer interrogatories. In so ordering, the court based its decision on Pa.R.C.P. 4019, 42 Pa.C.S. While Bruno did not involve counsel fees, but rather striking a new matter, which arguably puts the parties out of court more so than an order imposing counsel fees, we find that its language is quite broad and applies to discovery sanction orders under Pa.R.C.P. 4019, 42 Pa.C.S. The court stated: “There is no distinction here between this particular order and other pretrial orders on discovery or admissibility of evidence.” Bruno, at 49, 526 A.2d at 782. While Bruno does not discuss the effect of an order imposing discovery sanctions which have been reduced to judgment, we interpret Bruno broadly in light of our decision in Fox v. Gabler, 377 Pa.Super. 341, 547 A.2d 399 (1988). Judge (now Justice) Montemuro analyzed the process of determining the finality of orders for purposes of appeal. In Fox, we restated that discovery sanctions are interlocutory and stated the policy reasons for this holding as follows:

“(I)f this order were to be found to be presently appealable, it would tend to discourage the (trial) court’s use of the disciplinary tool, and it would merely become another weapon in the arsenal of dilatory practice for the attorney who wished to delay the judicial proceedings.”

Id. at 351, 547 A.2d at 404 (quoting Hall v. Lee, 285 Pa.Super. 542, 548, 428 A.2d 178, 181 (1981). Fox involved an order of contempt entered against a party requiring the posting of a $10,000 bond. We explained that where the order is “completely collateral to the underlying litigation, and where the underlying litigation will continue after appeal of the order has been resolved”, Id., 377 Pa.Super. at 347, 547 A.2d at 402, the order is interlocutory and not appealable. Because we find that the order in our present case is completely collateral to the underlying medical malpractice action, and the litigation on the underlying action will continue after this discovery sanction, the order is likewise interlocutory. We see no reason to deviate from the general rule that discovery sanction orders are not appealable until final judgment in the underlying action. Fox, supra.

Appeal quashed.


source: Caselaw Access Project

author: JOHNSON, Judge: HESTER, Judge,

license: Public Domain

text:
    626 A.2d 608
    James A. NADDEO v. Lois J. NADDEO, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 10, 1993.
    Filed June 16, 1993.

      James N. Bryant, Millheim, for appellant.
    Peter F. Smith, Clearfield, for appellee.
    Before KELLY, JOHNSON and HESTER, JJ.
   JOHNSON, Judge:

In this appeal, we are asked to determine, for purposes of equitable distribution, the proper method of valuing a partnership interest in a viable law practice. Where the partnership was voluntarily dissolved after separation but prior to distribution, we determine that the partnership interest should be valued before the voluntary dissolution of the partnership. We reverse and remand.

Lois J. Naddeo (Wife) appeals from the orders of equitable distribution and alimony following the grant of a-divorce from James A. Naddeo (Husband) on February 5, 1992. The parties were married on January 28, 1966, and separated on February 28, 1991. By the time of the Master’s hearing on November 4, 1991, the two children born of their marriage, John Anthony Naddeo, and Janine Allison Naddeo, had achieved majority.

Husband, admitted to practice law in Pennsylvania in 1967, had been a partner in the law firm of Belin, Belin, and Naddeo in Clearfield, Pennsylvania, from January 1, 1973, until the partnership was dissolved on October 21, 1991. He earned approximately $150,000 per year during the five years prior to the separation.

After graduating from high school in 1962, Wife was employed in a clerical position in Washington, D.C. She was employed at the time the parties married, and for a brief period of time after the parties returned to Pennsylvania. Since that time, Wife has been a homemaker, contributing to the marriage by running the household and raising the parties’ children.

The parties and their counsel stipulated to the value of all marital assets except two: the marital residence at 204 West First Street, Clearfield, Pennsylvania; and, Husband’s partnership interest in the law practice. The Master conducted a hearing on November 4, 1991, to determine the values of Husband’s partnership interest, the marital residence, the marital debts, and to take testimony regarding the question of Wife’s alimony.

The Master, in his recommendations, divided the marital property, awarded Wife alimony, and discussed but did not ascribe any value to Husband’s partnership interest in the law firm. Both parties filed exceptions to the Master’s report, which the trial court dismissed after issuing the divorce decree. The trial court adopted the Master’s recommendations in its equitable distribution of the marital property: Wife’s share was valued at $432,600, or 58%; Husband’s share was valued at $309,983, or 42%. Wife was also awarded alimony of $400 per month for four years. Both parties were deemed jointly responsible for a potential debt involving a lease agreement. Counsel fees and expenses were divided equally.

In this appeal, Wife raises three questions for our consideration. Wife claims that the trial court erred in: (1) accepting zero as the value of Husband’s interest in the law partnership when her expert testified that the value, based upon the partnership agreement, was $160,000; (2) distributing the marital property, 42% to Husband, 58% to Wife, and, (3) the amount and duration of the award of alimony.

Our standard of review in matters of equitable distribution is limited. We will not reverse the trial court absent an error of law or an abuse of discretion. Elhajj v. Elhajj, 413 Pa.Super. 578, 605 A.2d 1268 (1992). We have stated that:

[A]n abuse of discretion is not found lightly, but only upon a showing of clear and convincing evidence. Specifically, we measure the circumstances of the case and the conclusions drawn therefrom by the trial court against the provision of 23 Pa.C.S.A. § 3502(a), and the avowed intentions of the Divorce Code, namely to “effectuate economic justice between [the] parties and insure a fair and just determination of their property rights.”

Butler v. Butler, 423 Pa.Super. 530, 537-538, 621 A.2d 659, 663-664 (1993) (alteration in original) (citations and footnote omitted). It is in light of this standard that we will now review Wife’s first and second claims.

First, Wife claims that the trial court erred in accepting a valuation of zero for Husband’s interest in the law partnership when her expert testified that the value, based upon the partnership agreement, was $160,000. Following our review of the record, we conclude that the trial court erred in valuing Husband’s partnership interest in the law firm at zero for purposes of equitable distribution.

A spouse’s partnership interest in a law partnership is marital property subject to equitable distribution. McCabe v. McCabe, 525 Pa. 25, 575 A.2d 87 (1990); Beasley v. Beasley, 359 Pa.Super. 20, 518 A.2d 545 (1986). Where the partner does not have the ability to sell, liquidate, or otherwise realize the value assigned to his interest, the valuation of a spouse’s partnership interest in a law firm is dictated by the partnership agreement. McCabe, 525 Pa. at 29-30, 575 A.2d at 88-89. See also Soloman v. Soloman, 531 Pa. 113, 124 n. 12, 611 A.2d 686, 691 n. 12 (1992).

Here, Husband was a partner in the law partnership of Belin, Belin, and Naddeo from January 1, 1973, until its dissolution on October 21, 1991. At the Master’s hearing, Wife presented Patrick J. Fiore, a Certified Public Accountant, as an expert in the valuation of businesses for purposes of equitable distribution. Fiore stated that, pursuant to the partnership agreement of January 1, 1973, and particularly paragraph 6, the value of Husband’s interest in the law partnership was $160,000.

Husband testified that it was his decision to terminate the partnership. Husband stated that there were no partnership clients because each partner maintained his own clients. Upon dissolution, Husband and Belin, Jr., closed the books, performed an accounting, and took their respective clients. Husband testified the final accounting revealed his capital account had a net deficit of $27,797.28, and he executed an agreement to pay Belin, Jr., that amount.

Husband denied that there were any outstanding fees and/or accounts receivable due the partnership. Husband’s interpretation of the partnership agreement was that a payment to the withdrawing partner was required only if the non-withdrawing partner continued the partnership business. Husband testified that it was at his discretion, as the withdrawing partner, whether the partnership would continue after he withdrew from it, and depended upon a determination as to whether there was any value to be purchased. Husband said that the partners agreed that they had nothing to sell to each other.

In his recommendation for equitable distribution to the trial court, the Master failed to ascribe any value to Husband’s partnership interest in the law firm. Both parties took exceptions to the Master’s recommendations. Following argument on the exceptions, the trial court dismissed all exceptions and adopted the Master’s recommendations. See Order on Exceptions to Master’s Report and Decree Distributing Marital Assets, July 2, 1992, Snyder, S.J.

In its memorandum opinion, dated July 2, 1992, the trial court agreed with the Master that the value of Husband’s partnership interest was zero for purposes of equitable distribution. The trial court found that the value Wife’s expert had placed upon Husband’s interest in the partnership depended upon Husband withdrawing from an ongoing partnership with accounts receivable and work in progress, a partnership having value as a going concern. The trial court held that the partnership had dissolved with no accounts receivable and work in progress because Husband and his partner each took Ms own clients with him. See trial court opimon, July 2,1992, Snyder, S.J., at 2-3.

Having reviewed the record, we conclude that the trial court erred in valuing Husband’s partnersMp interest in the law firm by: (1) determining the value after the dissolution and termination of the partnersMp; and, (2) using an improper valuation method.

In Sutliff v. Sutliff 518 Pa. 378, 543 A.2d 534 (1988), our supreme court discussed the time for valuation of marital assets. Though they stated a preference for valuation at or near the time of distribution, they noted that:

[T]here may be situations where marital assets have been consumed or disposed of by one of the parties, thus rendering a current valuation impossible and making it necessary to rely on data that would otherwise be considered stale ...

Id. at 382-383, 543 A.2d at 536. Also see Sergi v. Sergi, 351 Pa.Super. 588, 506 A.2d 928 (1986).

Here, the situation is similar to those in Barnhart v. Barnhart, 343 Pa.Super. 234, 494 A.2d 443 (1985), and Butler, supra. In Barnhart the husband withdrew his pension, wMch was acquired during the marriage and prior to separation, to pay debts and expenses. Husband argued that no pension existed at the time the divorce complaint was filed. The pension was excluded from the marital property by the trial court. We reversed, finding that to allow a spouse to deplete a marital asset after separation but before the divorce would defeat the purpose and spirit of equitable distribution. See 23 Pa.C.S. § 3502.

In Butler, supra, when the parties separated, husband was one of two partners in an accounting firm. However, by the time of the Master’s hearing, the accounting firm had acquired an additional partner, thus reducing husband’s partnersMp interest from one-half to one-third. TMs Court held that the equitable distribution must be based on husband’s one-half partnersMp interest, not Ms one-third interest at the time of the Master’s hearing. Butler, 423 Pa.Super. at 538-540, 621 A.2d at 664.

In the present case, the partnership interest was acquired during the marriage and prior to separation. The firm was a viable partnership at the time the parties separated. Husband’s distributive share of the partnership’s net income had averaged $150,000 per year for the previous five years. The partnership’s gross income was $547,308.08 from January 1, 1991, through October 28, 1991 (yielding a net income of $200,746), as indicated in the partnership’s 1991 income statement. The dissolution of the partnership occurred 14 days before the Master’s hearing. Although Husband voluntarily withdrew from the partnership, he continued to work the same work schedule and amount of hours in his subsequent private practice as he did while a partner.

Based upon these facts, we conclude that the appropriate time for Husband’s partnership interest to be valued is before his voluntary withdrawal from the partnership. This date more accurately reflects the value of this marital property for purposes of equitable distribution. Barnhart, supra; Butler, supra. Permitting the trial court’s conclusion to stand would allow Husband to destroy the value of marital property, i.e., the partnership, simply through his voluntary dissolution of the partnership. We will not allow a spouse to so easily defeat the purposes of equitable distribution. Barnhart, supra.

We also observe that the trial court concluded that it could not apply the provisions of the partnership agreement to ascertain the value of Husband’s interest in the firm because the partnership was not a large, ongoing law firm with accounts receivable, work in progress, and value as a going concern. In Buckl v. Buckl, 373 Pa.Super. 521, 542 A.2d 65 (1988) (en banc), we established that a partnership interest is marital property. See also McCabe, supra. While we recognize the possible difficulty of placing a value on a spouse’s interest in a small business such as a partnership, we have also stated that the form of the partnership is not dispositive. Buckl, supra; Butler, supra. The trial court must initially consider the partnership agreement, “although it is most unlikely that the agreement will deal with valuation of a partner’s interest vis a vis equitable distribution upon dissolution of the marital relationship.” Buckl at 532, 542 A.2d at 70. The Buckl court noted that partnership agreements usually deal with valuation “upon the voluntary withdrawal, death of a partner, or dissolution of the firm.” Id. Not only is the partnership agreement a factor to be considered, but the trial court must also look at the realities of the situation and avoid an unrealistic valuation. Butler, supra. In setting forth the other factors which must be considered, we said:

Generally speaking the monetary worth of this type of professional partnership will consist of the total value of the partners’ capital accounts, accounts receivable, the value of work in progress, any appreciation in the true worth of tangible personalty over and above book value, together with good will, should there in fact be any; the total so arrived at to be diminished by the amount of accounts payable as well as any other liabilities not reflected on the partnership books.

Buckl at 532, 542 A.2d at 70 (citation omitted); see also Butler, supra.

While the partnership agreement in this case does not address the value of a partner’s interests for purposes of equitable distribution, it provides for a partner who dies or withdraws from the partnership to receive his proportionate share of the proceeds of the firm. See Partnership Agreement, ¶ 6. Provision is also made for a partner who withdraws or dies to receive an additional amount for the unfinished business of the partnership. Id. Unfinished business is specifically defined as “business, the proceeds of which, have not been received regardless of how far the work has progressed and regardless of the state of the billing.” Id.

The partner who dies or withdraws will essentially receive a proportionate share of the firm’s total value, including the partnership’s unfinished business. Partnership Agreement, ¶¶ 6-8. Thus, any one of the three partners in Husband’s partnership could realize his share of the going concern value of the partnership upon withdrawal, unlike the situation in McCabe, where the partner of a large law firm could not realize the going concern value of his partnership interest. There, our supreme court determined that it would be inequitable to apply a going concern value to the husband’s partnership interest in a law firm where the going concern value could never materialize. The supreme court commented that the husband’s share could not be publicly or privately traded, the firm could not be liquidated or sold at a partner’s discretion, and the partner could not:

remove from the firm a proportionate share of the accounts receivable, work-in-progress accounts, or other accounts included in the “going concern” value. Under no circumstances can a partner liquidate his share of the partnership and receive a proportionate share of the firm’s total value, including its equipment, accounts receivable, etc. Rather ... a partner is strictly limited to receiving his capital account, and his share of undistributed profits, in the event he wishes to liquidate his share in the firm.

McCabe, 525 Pa. at 29-30, 575 A.2d at 89. However, where the partnership agreement grants to the partners withdrawal rights permitting the partner to realize a value corresponding to the value the partner would receive if the partnership was valued as a going concern, it is appropriate for the court to value the partnership interest as a going concern. Id. at 30, 575 A.2d at 89. From McCabe, it follows that in this case the valuation of Husband’s partnership interest is governed by the partnership agreement, applying a going concern value. Id.

The trial court held that it could not apply the provisions of the partnership agreement to ascertain the value of Husband’s interest in the firm because the firm was not a large, ongoing concern with accounts receivable, work in progress, and value as a going concern. The trial court supported this conclusion by finding that: (1) the firm had no clients because each lawyer had his own clients; (2) income generated by each attorney’s clients went into a common fund for the payment of partnership expenses, after which the remainder was divided and distributed to each attorney; and, (3) after the partnership dissolved, each partner took his clients with him. Thus, the trial court found that no entity remained which could receive the benefit of any accounts receivable or work in progress.

The trial court ignored the provisions of the partnership agreement in making these determinations. Husband’s claim that the partnership did not have any clients is belied by the partnership agreement. Partnership Agreement, ¶ 3. Husband and the other partners agreed in 1971 that their individual law practices would cease and their clients would become an asset of the partnership. In return, each partner received a share of the partnership’s distributions. At dissolution, the clients were an asset of the partnership, not the individual partners.

We do not dispute the fact that the partners were within their rights to divide the partnership’s clients after dissolution. See Beasley, 359 Pa.Super. at 35, 518 A.2d at 552. According to the partnership agreement, the individual partners did not, and could not, retain clients separate from the partnership. Therefore, the unfinished business proceeds of all clients, i.e., the accounts receivable and work in progress as defined in the partnership agreement, except for contingent fee cases, is a partnership asset that must be considered for purposes of valuation. Id. at 39, 518 A.2d at 554. There is no evidence that the partners, in suddenly dissolving a viable law practice with a gross income of $547,308.08 from January 1, 1991, through October 28, 1991, and an average monthly income of $54,730.81, attempted to determine what unfinished business proceeds attributable to the partnership existed. Though the partners may have chosen to ignore the unfinished business proceeds in dividing the partnership’s clients between them, it does not preclude the trial court from making an independent determination as to the value of the unfinished business. While a Master’s report is entitled to great consideration by the trial court, it is not binding upon it. Morschhauser v. Morschhauser, 357 Pa.Super. 339, 349, 516 A.2d 10, 15 (1986) (citations omitted).

We conclude that the trial court erred in determining that the partnership agreement could not be used for valúation purposes because the partnership agreement was predicated upon the continuation of the partnership, and that there was no unfinished business proceeds due the partnership. Were we to accept the trial court’s logic, the value of a partner’s interest in a small partnership, for purposes of equitable distribution, could never be determined. The going concern method would not be applied since the partnership has dissolved and terminated without a surviving entity; the partnership agreement would not be applied because its method of valuation is that used for valuing a going concern. We reject the notion that neither method of valuation can be used for purposes of equitable distribution. Cf. Barnhart, supra.

We conclude that the trial court should value Husband’s partnership interest in the law firm before the dissolution and termination of the partnership. Since Husband could liquidate his interest in the law firm, the valuation must be determined by the partnership agreement, in accordance with McCabe. While we conclude that the trial court erred in accepting a value of zero for Husband’s interest in his law partnership, we reach no conclusion as to an appropriate value, nor do we determine whether the valuation offered by Wife’s expert is correct.

We find it unnecessary to address Wife’s remaining claims, because the equitable distribution and alimony must be recalculated after re-valuing Husband’s partnership interest.

Accordingly, for the foregoing reasons, we reverse and remand for proceedings not inconsistent with this Opinion. Jurisdiction relinquished.

HESTER, J., filed a concurring statement.

HESTER, Judge,

concurring.

I concur in every respect with Judge Johnson’s well reasoned adjudication. I write separately only to express dissatisfaction with the wife’s alimony award of $4,800.00 per year for four years. This is totally inadequate. For twenty-five years she made substantial contributions to the marriage and the family as wife, mother and homemaker. For many years prior to the separation, the family income averaged in excess of $150,000.00. A comfortable life style was attained. The alimony should be sufficient to enable the wife to maintain a similar life style as well as to prepare herself for re-entry into the business world; not an easy undertaking.


author: HOFFMAN, Judge:

text:
    626 A.2d 614
    COMMONWEALTH of Pennsylvania v. Thomas E. SMITH, Appellant.
    Superior Court of Pennsylvania.
    Argued March 25, 1993.
    Filed June 16, 1993.

      Jon S. Pushinsky, Pittsburgh, for appellant.
    Marjorie Fox, Asst. Dist. Atty., Waynesburg, for Com., appellee.
    Before BECK, KELLY and HOFFMAN, JJ.
   HOFFMAN, Judge:

This appeal is from the judgment of sentence following appellant’s conviction for aggravated assault, simple assault, reckless endangerment, terroristic threats, carrying a firearm without a license, and possession of a weapon on school property. Appellant presents the following issues on appeal:

I. DID THE LOWER COURT COMMIT A PREJUDICIAL ABUSE OF DISCRETION AND VIOLATE MR. SMITH’S RIGHT TO COUNSEL WHEN IT FAILED TO CONTINUE THE CASE SO AS TO PERMIT MR. SMITH TO SECURE SUBSTITUTE PRIVATE COUNSEL, THUS COMPELLING MR. SMITH TO APPEAR PRO SE?
II. WAS THERE SUFFICIENT EVIDENCE OF AGGRAVATED ASSAULT WHERE NO SERIOUS BODILY INJURY WAS INFLICTED, WHERE THERE WAS NO INTENT TO CAUSE SERIOUS BODILY INJURY AND WHERE NO DEADLY WEAPON WAS USED TO CAUSE BODILY INJURY OF ANY KIND?
III. DID THE COURT COMMIT PREJUDICIAL ERROR BY IMPROPERLY RESTRICTING THE SCOPE OF MR. SMITH’S CHARACTER EVIDENCE AND BY FAILING TO PROPERLY INSTRUCT THE JURY AS TO THE WEIGHT WHICH COULD BE ASSIGNED TO SUCH EVIDENCE?
IV. WAS MR. SMITH PREJUDICED BY THE TRIAL COURT’S REFUSAL TO PERMIT HIM TO FULLY EXPLAIN THE REASONS FOR HIS CONDUCT AND IN ITS FAILURE TO INSTRUCT THE JURY AS TO THE ELEMENTS OF A JUSTIFICATION DEFENSE?
V. WERE MR. SMITH’S PRIOR COUNSEL PREJUDI-CIALLY INEFFECTIVE?

Appellant’s Brief at 3. For the reasons that follow, we vacate judgment of sentence and remand the matter for a new trial.

The facts of this case as set forth by the trial court áre as follows:

On October 16, 1991, the defendant went to the West Greene School District administration building to see his ex-wife, Deborah Hull, with whom he has had a longstanding dispute. Upon confronting Mrs. Hull, a physical confrontation took place whereby the defendant grabbed the victim by the hair of her head, pointed a .25 caliber pistol toward her head and face, and threatened to shoot her in the various parts of her anatomy, and further, threatened to kill her. The defendant was charged with aggravated assault, simple assault, recklessly endangering another person, terroristic threats, possession of a weapon on school property, and carrying a firearm without a license.

Opinion, Grimes, J., 9/29/92 at 1.

On March 9, 1992, appellant’s trial counsel, Phyllis Jin, filed a motion to withdraw as counsel, citing irreconcilable differenees with appellant; the trial court denied the motion. On April 23, 1992, Ms. Jin again moved to withdraw from representing appellant. Appellant also vehemently sought the withdrawal of Ms. Jin and a continuance in order to retain new counsel. The court, however, denied that motion and entered an order stating

AND NOW, this 23rd day of April, 1992, upon hearing the motion of counsel for the defendant to withdraw from the case, that motion is denied to the extent that if the defendant desires to not have Ms. Jin actively represent him, that defendant shall be given the opportunity to defend himself to the extent that he desires to do so, consistent with the rules of the Supreme Court of Pennsylvania and the rules of evidence in the Commonwealth, and that counsel of record shall remain with the defendant so that the defendant may call on counsel to represent him in the event he chooses to do so.

N.T. 4/23/92 at 20.

Trial proceeded with appellant conducting his own defense and Ms. Jin remaining in the courtroom as standby advisory counsel. We find no indication in the record that appellant ever consulted with Ms. Jin or that Ms. Jin assisted appellant in any way during trial. On April 24, 1992, a jury convicted appellant of all charges. On May 4, 1992, appellant, through new counsel, Samuel Pangburn, filed a motion in arrest of judgment and for a new trial. The motion alleged, inter alia, that the evidence was insufficient to convict appellant, that the court erred in failing to grant a continuance so that appellant could obtain new trial counsel, and that trial counsel was ineffective. It appears from the record, however, that the trial court never disposed of these post-trial motions. On June 18, 1992, appellant was sentenced to a term of imprisonment of not less than two years nor more than twelve years on the charge of aggravated assault. The sentences on the remaining charges either merged for the purposes of sentencing or run concurrent to the sentence for aggravated assault. Appellant filed a pro se motion for modification of sentence which the court denied on June 30,1992. Represented by new counsel, Jon Pushinsky, Esquire, appellant filed this timely appeal.

Appellant first asserts that he was denied his right to counsel when the trial court compelled him to represent himself absent a valid waiver of his right to counsel. We agree.

Any waiver of the right to counsel must be a knowing and intelligent decision made with full understanding of the consequences. See Commonwealth v. Szuchon, 506 Pa. 228, 250, 484 A.2d 1365, 1377 (1984). The Comment following Pa.R.Crim.P. 318 provides that the court must conduct an examination of the defendant to elicit, at a minimum, the following information on the record:

(1) That the defendant understands that he has the right to be represented by counsel, and the right to have free counsel appointed if he is indigent.
(2) That the defendant understands the nature of the charges against him and the elements of each of those charges.
(3) That the defendant is aware of the permissible range of sentences and/or fines for the offenses charged.
(4) That the defendant understands that if he waives the right to counsel he will still be bound by all the normal rules of procedure and that counsel would be familiar with these rules.
(5) That the defendant understands that there are possible defenses to these charges which counsel might be aware of, and if these defenses are not raised at trial, they may be lost permanently.
(6) That the defendant understands that, in addition to defenses, the defendant has many rights that, if not timely asserted, may be lost permanently; and that if errors occur and are not timely objected, or otherwise timely raised by the defendant, these errors may be lost permanently.

Id. See also Commonwealth ex rel. McCray v. Rundle, 415 Pa. 65, 69-60, 202 A.2d 303, 305 (1964) (setting forth requirements for intelligent waiver of counsel; judge must make comprehensive examination of all circumstances under which waiver is tendered.)

In the instant case, we must determine if appellant indeed waived his right to counsel and, if so, whether the waiver was voluntary and intelligent. Preliminarily, we must determine the effect of the trial court’s order denying Ms. Jin’s petition to withdraw. Although the order stated that the court denied Ms. Jin’s petition to withdraw, the court perceived appellant as if he were proceeding without counsel. For example, in giving preliminary instructions to the jury, the court told the jury that “Mr. Smith is unrepresented by counsel for the purposes of trial.” N.T. at 26. Moreover, in its opinion denying appellant’s petition to modify sentence, the court stated that “[t]he defendant was represented by counsel throughout the pre-trial proceedings but at the time of trial stated that he wished to defend himself since he and his lawyer had differing opinions on the proper way to present the defense.” Opinion, Grimes, J., 9/29/92 at 1 (emphasis added).

This statement misrepresents what transpired in the courtroom prior to trial. Our review of the transcript of the proceedings reveals that defendant clearly did not desire to represent himself. The following dialogue took place:

Court: ... you have the right to counsel. There seems to be some concern from Ms. Jin as to whether or not you wish for her to represent you in this matter.
Mr. Smith: No, I don’t. I just now told her. After last night, I do not. She come to Court, had no witnesses as of last night. A week ago — the prosecution has witnesses to present their case. We need witnesses to. I gave her names of six people. We went over it for the last three days, and she did not bother to get them here, so she is not proper to represent me.
Court: Do you wish to represent yourself?
Mr. Smith: No, I’m not going to represent myself. That’s why I hired a lawyer, because I did not want to represent myself.
Court: Well, Mr. Smith, the trial is going to go on, so you have a choice to either represent yourself or using your attorney.

N.T. at 4-5. The discussion continued:

Court: ... What I need to know at this point in time, do you intend to represent yourself today or do you intend to have Ms. Jin represent you?
Mr. Smith: ... No, I don’t intend to have her represent me, and I don’t want to represent myself.
Court: ... Well, we are going to go ahead with the trial, and Commonwealth will present their evidence.
Mr. Smith: Go ahead and do whatever you want to do, Your Honor. I can understand that, but she has not properly prepared the case. She has misused this. I’ll be misrepresented by her, because you cannot have a defense if you have no witnesses. And as of last night, she called me around 9:00 or 10:00, and she had no witnesses. And we have discussed this continually, and she refused and refused to get them.
Court: Well, apparently she had her own reason for that—

N.T. at 7.

Despite this dialogue, the trial court concluded that appellant voluntarily waived his right to an attorney. By the court’s actions, appellant was in fact forced to proceed without counsel. Moreover, although the trial court treated appellant as though he had waived his right to counsel, the court did not conduct the inquiry necessary to a finding of a voluntary, intelligent and knowing waiver.

A similar situation was presented in Commonwealth v. Neal, 387 Pa.Super. 165, 563 A.2d 1236 (1989), appeal denied, 525 Pa. 597, 575 A.2d 564 (1990). An attorney from the public defender’s office had been appointed to represent the defendant, who was indigent. An ongoing dispute between defendant and counsel led to the defendant’s petition to dismiss the attorney and have another attorney appointed. The petition was presented to the court after the jury had been selected. In an in camera hearing, the following discussion took place:

THE COURT: ... Mr. Neal, what we now come down to, then is your determination to be made. If you still insist that you did not wish to be represented by Attorney Moffett, I’ll honor that request. I’ll tell you, however, that on the basis of what I have received here, I’m not amenable to continuing this matter or to appoint other counsel for you. I may very well appoint second counsel, someone to assist you, should you determine to proceed by yourself in this case, which is your absolute right, of course, but I’m not going to remove Attorney Moffett from the case without your direction to do so and I’m not going to appoint someone else to represent you under these circumstances. I’ll leave that to you as to what you wish to have done. THE DEFENDANT: As I clearly stated in the letter, Your Honor, I don’t have the confidence that Miss Moffett is going to represent me correctly.... I don’t feel that she has my best interest at heart and I’m in a situation now where, as I said, I feel that I still have my rights to have pretrial motions placed and I have no knowledge of how to be able to do this in writing and I do need counsel----
THE COURT: I’m going to honor your request, I’m going to relieve Miss Moffett of her representation in this case. It makes no sense to have her represent you if you don’t have confidence in her, but I’m following up "with what I just told you, I’m not going to appoint other counsel to represent you. I will attempt to locate counsel to serve in assistance to you, but it’s going to be your place to try—
THE DEFENDANT: But I have no knowledge of how, Your Honor, I’m not able to defend myself ...

Neal at 171-73, 563 A.2d at 1239-40. The trial court in Neal then dismissed the defendant’s counsel from the case, directed that the defendant proceed to trial pro se, and appointed standby counsel to assist the defendant by answering questions pertaining to procedural and evidentiary matters. Id. at 174, 563 A.2d at 1241.

In finding that the defendant was denied his constitutional right to counsel, this court reasoned as follows:

“It is not difficult to empathize with the trial court’s frustration when appellant, after a jury already had been selected, sought the dismissal of his lawyer and the appointment of new counsel. Appellant was unable to demonstrate irreconcilable differences between himself and his lawyer, and his request to replace counsel may well have been calculated to delay the trial. Under the circumstances, the trial court would not have abused its discretion by denying appellant’s request to dismiss his public defender. The trial court committed error, however, when it excused counsel from representing appellant and forced appellant to proceed pro se. That appellant did not want to proceed pro se is clear---- In the face of this, it is clear that appellant did not voluntarily waive the right to be represented by counsel. Instead, he was literally forced by the court to represent himself without being apprised of the consequences and pitfalls thereof. This, the courts have refused to countenance.”

Id. at 178, 563 A.2d at 1242-43 (emphasis added).

Likewise, in Singer v. Court of Common Pleas, Bucks County, 879 F.2d 1203 (3d Cir.1989), the Court of Appeals for the Third Circuit held that the defendant “did not receive, and did not waive, the effective assistance of counsel which is required by the Sixth Amendment” where an attorney was appointed on the morning of trial and the court presumed that the defendant knowingly waived his right to counsel without conducting any type of inquiry on the record. The defendant repeatedly asserted that he did not wish to represent himself and that an attorney who was appointed that morning could not effectively represent him. The trial court nevertheless refused to grant a continuance and determined that the defendant had waived his right to counsel. The Third Circuit held that the defendant made it clear that he did not want to waive the right to counsel and stated that “[t]he suggestion that his protests amounted to a waiver of counsel makes a mockery of the uses of the English language.” Id. at 1210.

Instantly, we find that appellant did not tender a knowing and voluntary waiver of his right to counsel. No colloquy was conducted to inform appellant, inter alia, of the permissible range of punishments, possible defenses, and the danger of permanently losing his right to assert defenses and other rights if they are not raised at trial. Rather he was merely given a choice between proceeding by himself or with counsel in whom he had no confidence and who had herself filed a petition to withdraw. Accordingly, we find that by effectively forcing appellant to proceed pro se, the trial court denied appellant his constitutionally guaranteed right to counsel.

We now address appellant’s contention that the evidence was insufficient to support his conviction for aggravated assault. Specifically, he asserts that the evidence was insufficient because no serious bodily injury was inflicted and there was no intent to cause serious bodily injury. We disagree.

The test for reviewing a sufficiency of the evidence claim is well-settled:

[Wjhether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the [fact-finder] could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt____

Commonwealth v. Hardcastle, 519 Pa. 236, 246, 546 A.2d 1101, 1105 (1988) (citations omitted), cert. denied, 493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). See also Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1985); Commonwealth v. Brady, 385 Pa.Super. 279, 282, 560 A.2d 802, 804 (1989).

18 Pa.C.S. § 2702(a), entitled “Aggravated assault,” provides:

(a) Offense defined. — A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;
(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon; ...

Id.

“Serious bodily injury” is defined as

[b]odily injury which creates a substantial risk of death or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

18 Pa.C.S. § 2301.

Instantly, the evidence elicited at trial indicates that appellant pointed a gun at Ms. Hull with his finger on the trigger, grabbed her by the hair and pushed her to the floor. In the process, he pulled out two clumps of her hair. Although the gun was unloaded, the clip of the gun was in appellant’s pocket. He threatened to shoot Ms. Hull and warned that if anyone called the police, he would return. Only when one of Ms. Hull’s coworkers intervened did appellant stop his assault. We find that the above evidence was sufficient to sustain appellant’s conviction for aggravated assault. See Commonwealth v. Chance, 312 Pa.Super. 435, 443, 458 A.2d 1371, 1374-75 (1983) (sufficient evidence of aggravated assault established when defendant pointed unloaded gun at victim who heard it click several times.); Commonwealth v. Bond, 261 Pa.Super. 311, 315-16 n. 2, 396 A.2d 414, 416 n. 2 (1978) (same).

For the foregoing reasons, we vacate judgment of sentence and remand the matter for a new trial.

Judgment of sentence vacated.

      . 18 Pa.C.S. §§ 2702(a)(1) & (4), 2701(a)(1), 2705, 2706, 6106, 912(b).

      . Appellant averred that he had presented Ms. Jin with the names of six individuals who could be called as witnesses and that she failed to contact any of them until the night before the trial. Ms. Jin conceded that she had discussed the witnesses with appellant the night before and that at that time she had not yet obtained any character witnesses. She explained to the court that during the conversation, appellant hung up the telephone and Ms. Jin was unsuccessful when she attempted to call appellant back because he would not answer the telephone. Additionally, she stated that after speaking with appellant, she contacted a character witness to testify on appellant’s behalf. N.T. at 9, 18.

      . Pursuant to an order dated May 5, 1992, the court ordered that a hearing on the post-trial motions be placed on the next argument list. However, there is no indication that such hearing was ever held. Moreover, the court failed to discuss appellant’s allegation of trial errors in its opinion and only addressed his claims for modification of sentence. In fact, in its opinion, the trial court stated that “[s]ince the defendant’s only post-trial motion was for a modification of sentence, the court can only assume that no further error is being charged by the defendant.”

      . Our decision is not altered by the fact that Ms. Jin remained during tried but did not participate. Pa.R.Crim.P. 318(d), entitled "Standby Counsel" provides: "When the defendant’s waiver of counsel is accepted, standby counsel may be appointed for the defendant. Standby counsel shall attend the proceedings and shall be available to the defendant for consultations and advice." Here, by order of the court, Ms. Jin served in a standby capacity only.
      We recognize that this court has held that where standby counsel has been appointed, the full requirements of 318(c) need not be met and it is sufficient if the court instructs the accused on those aspects of the trial for which he seeks to represent himself. Commonwealth v. Palmer, 315 Pa.Super. 601, 609, 462 A.2d 755, 759 (1983). In the instant case, however, unlike in Palmer, there was no pretrial arrangement under which the defendant would represent himself only for certain aspects of the trial.

      . The fact that the trial court in Neal formally dismissed the defendant's court-appointed counsel and appointed standby counsel does not distinguish that case from the instant one in which appellant’s counsel was relegated to a standby position and the court treated appellant as though he were proceeding pro se.

      . Although the trial court recommended to appellant that he have Ms. Jin represent him, this alone does not satisfy the comprehensive examination required for the determination of a voluntary waiver.

      . As appellant points out, the only mention of defenses was made by the prosecutor who asked appellant if his counsel had discussed various legal defenses, including justification, with him. Appellant succinctly responded, "No,” and the court never followed up with an explanation of available defenses. N.T. at 15.

      . In light of our resolution of appellant’s first and second contentions, we need not address his remaining issues.


author: CAVANAUGH, Judge.

text:
    626 A.2d 620
    Linda MARSHALL, Parent and Natural Guardian of Edward Marshall, A Minor and Linda Marshall In Her Own Right v. PHILADELPHIA TRAMRAIL CO., Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 10, 1992.
    Filed June 16, 1993.
    Austin Hogan, Philadelphia, for appellant.

      Stephen M. Feldman, Philadelphia, for appellee.
    Before CAVANAUGH, BECK and POPOVICH, JJ.
   CAVANAUGH, Judge.

This appeal arises from a verdict in favor of the appellee in the amount of $807,000.00 plus $416,180.09 in delay damages. The appellant raises several arguments on appeal. We find merit with the appellant’s claim that the trial court erred by instructing the jury a product must be “safe for use” as opposed to “safe for intended use.” We reverse, and remand for a new trial.

On January 12, 1985, the appellee, Edward Marshall, suffered injury in the course of his employment as a stock boy for Shop N’ Bag. At the time, the appellee was a seventeen-year-old high school senior who worked part time at the store. His duties entailed collecting used cardboard boxes and placing them into an industrial size trash compactor/baler. The boxes would then be squeezed into a manageable compact unit by a hydraulic ram which descended on the cardboard. After the cardboard was compacted, the ram would return automatically to its starting place at the top of the machine. It is while operating the compactor/baler, a machine designed and manufactured by appellant Philadelphia Tramrail Company, that the appellee suffered injury during an accident. As a result of the accident, appellee received serious injury to a portion of his right hand, and a less severe injury to fingers on his left hand.

The tenor of the appellant’s defense at trial was that the compactor/baler was not shown to be defective by the appellee, whose injury appeared to have resulted from an ill-considered override of the machine’s safety features. On appeal, several of appellant’s arguments continue to resonate these themes. This being the case, we think it important to set forth at some length the parties’ presentation of their cases as to the machine’s alleged defectiveness at trial.

The appellee at trial sought to prove the machine was defective by his own testimony recounting how the accident occurred, and by his expert’s testimony indicating how the machine was defective.

The appellee testified that his employer told him that there were two steps in using the machine. Each step required use of the machine in a different fashion.

The first step involved getting enough cardboard into the compactor/baler in preparation for making a bale. During this step, the appellee would alternately place several cardboard boxes into the machine and crush them by operating the machine. He would repeat this process until there was enough cardboard in the machine to make a bale. Markings on the side of the machine told the user the appropriate level for making a bale. The appellee testified he was told by a coworker that the proper way to operate the machine during this step was in the automatic mode with the safety gate of the machine open. He was instructed that during this step, he was to depress a lever and at the same time to press the start button. The ram would proceed down from the top of the machine and crush the cardboard. He was told the reason that boxes were crushed in this way was because having the gate open allowed a stock boy to crush boxes quicker. The appellee was also told that he was to utilize this procedure to clean cardboard from the top of the ram.

The second step involved actually making the bale. As the appellee was injured using the compactor/baler as expressed above, an in-depth recitation of the process is unnecessary to our analysis. Generally, the idea was to further compact the boxes into a compressed unit and then tie the unit up with wire and eject it. The appellee was told, quite pertinently, that when he made a bale during this step, the machine was to be operated with the gate down. He was to switch the machine from automatic mods to manual mode. He was then to press the button down until the cardboard was sufficiently compacted to make a bale. When this was done, as the controls were on manual, the ram would be holding the cardboard down. While the ram held the cardboard in place, he would tie the unit with wires into a bale. He would subsequently, using the manual mode button, raise the ram. The bale would be ejected in a method not altogether clear from the record.

The appellee testified that the accident scenario arose during the first step. Although the ram was pushing down most of the cardboard, some of the cardboard started to build up along the edges, particularly in the back. The appellee stated that from experience, he knew that if the cardboard built up in the back of the machine, the machine would not operate properly and go through its proper cycle. Therefore, he had to clean it out. Although no one had instructed him precisely how to clean out cardboard that had accumulated in the back of the machine, the appellee stated he took the knowledge he learned from the instructions he learned in “step one” and applied it to this situation. He had previously depressed the gate limit lever with his left hand and pushed the start button with his right hand while the gate was open. As the machine finished the crushing cycle, he released the gate limit switch and he climbed onto the machine, placing his left foot on one rail of the machine a foot off the ground, and he placed his right foot on another rail about a foot above. With the rails providing him easier access into the machine, the appellee leaned over the ram and attempted to move the cardboard out of the way with both hands. Although highly pertinent, the record is unclear whether the appellant knew the ram was ascending at this point. However, ascending it was, and the ram caught several of appellees fingers against a part of the upper end of the machine. His injuries were as aforesaid.

Appellee’s liability expert, Mr. Simon Tamny, opined that the baler was defective and not safe for use. The tenor of his testimony is that the machine’s safety features should have prevented the appellee from either accessing the inside of the compactor/baler or from having his body parts caught in the ram’s upswing. First, the expert claimed that the machine was defective because of the faulty placement of a proximity switch which allowed the safety gate to be open. The placement of the proximity switch was such that if the safety gate was bent or bowed, the proximity switch would send a false signal allowing the baler to operate with the safety gate in the open position. He stated that if cardboard became jammed between the top of the machine and the top of the ram, it would cause the gate to bow outward. Second, the expert also testified that the placement of angle irons at the top of the front of the ram was unnecessary, creating an extra pinch point. Finally, he felt that the gate limit switch was too accessible and promoted tampering.

Pertinent to this disposition, the appellant had two basic theories of the case, both involving a foolhardy risk on the appellee’s behalf. The appellant noted that instructions on the side of the baler/compressor read “To compress material, set manual-auto switch to auto, pull gate down” and “To bale. Set manual-auto switch to manual. Set up down switch to down. Pull gate down.” Appellant’s first theory is that despite these instructions, the appellant’s own testimony indicated he climbed onto the machine’s cross members in order to reach across the ram to unjam cardboard in the rear of the machine. This involved prostrating his body between the ascending ram and the baler, a highly dangerous maneuver and not within the machine’s intended use. His second theory was that the uniform nature of the appellee’s injuries to his fingers indicated that the appellee may have been hanging on the ram as it ascended. The apparent motivation of doing this would simply be for the experience of taking a ride. The court allowed both theories to be argued to the jury in appellant’s closing argument.

Appellant raises several arguments on appeal. We have reviewed these arguments, and we find merit with appellant’s argument that the court erred in the case sub judice by instructing the jury that a product must be “safe for use” instead of “safe for intended use.”

During closing arguments, the appellant told the jury that he expected the judge to charge them that in order to be defective, the baler/compactor had to be unsafe for intended use. The appellant repeatedly argued that the compactor/baler was safe for intended use. To the appellant’s surprise, in charging the jury, the court in defining what constitutes a defect stated as follows:

[The Plaintiff] alleges that as a result of that defective condition he was harmed and has suffered damages for which he seeks compensation. That’s the case before you.
Now, the first issue in the case I think you have to address is whether this was a defective product. The law in Pennsylvania is that a manufacturer or seller of a product is the guarantor of its safety. The product must, therefore, be provided with every element to make it safe for use and must be without any condition that makes it unsafe for use.
If you find that the trash compactor baler, whatever it is you refer it to, lacked any element to make it safe for at the time it left the defendant Philadelphia Tramrail Corporation’s control or contained any condition that made it unsafe for use at that time, then the product was defective and the defendant is liable for all harm caused by such a defect.
The seller is liable for all harm of which its defective product is a substantial cause whether such harm is to the purchaser, to a user, to a consumer or to a bystander. The seller by placing the product into the stream of commerce is responsible to all who come within the boundaries of its use. And I repeat, the seller is responsible for providing a product which has every element to make it safe and without any condition to make it unsafe. That’s his duty. That’s a non-delegable duty. We say it’s a duty you can’t transfer to someone else. And it does not matter if the bystander was careless. Negligence is no defense. Negligence of the user is no defense. If it was defective when it left the control of Philadelphia Tramrail Corporation, then if you find it was defective, than you have to go on and make a judgment whether the defect was a cause of harm to Mr. Marshall ...

After the full jury instructions were concluded, the appellant protested to the court that this jury instruction was in error.

The following exchange occurred:

MR. HOGAN: Your Honor, you referred to a product being safe for use but not safe for intended use.
THE COURT: That’s right.
MR. HOGAN: Is that deliberate?
THE COURT: That was quite deliberate.
MR. HOGAN: Okay. Note my exception. That is the language of Azarella [sic].
THE COURT: Yes.

On appeal, the appellant, inter alia, argues that the court erred by failing to instruct the jury that a product is only defective when it lacks any element to make it safe for its intended use. The appellant notes that the seminal case in our jurisdiction regarding the question of defect in a strict liability case, Azzarello v. Black Brothers Co., 480 Pa. 547, 391 A.2d 1020 (1978), speaks in terms of “intended use” rather than simply “use.” It notes that several of our subsequent cases refer to the manufacturer’s duty to make the product safe for “intended use.” See, e.g., Carrecter v. Colson Equipment Co., 346 Pa.Super. 95, 499 A.2d 326 (1985); Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984), appeal dismissed 508 Pa. 643, 500 A.2d 428 (1985); Burch v. Sears, Roebuck & Co., 320 Pa.Super. 444, 467 A.2d 615 (1983). The appellant asserts that the best evidence that Pennsylvania Courts wish to confine a manufacturer’s liability to defects defined in terms of safety for “intended use” is the very existence of the defense of unforeseeable misuse. It claims that when the court charge that the product had to be simply “safe of use,” it gave the jury the opportunity to conclude that the baler had to be safe for any use, no matter how unintended, reckless, or unforeseeable.

We find the tenor of appellant’s argument persuasive. In Azzarello, supra, our Supreme Court determined the appropriate form of jury instructions in a products liability case. The Court announced its ruling while determining the question of whether, in a products liability case, the jury should be instructed as to whether a product in question was unreasonably dangerous. Id. at 551, 391 A.2d at 1023. The Court recognized that Section 402A of the Restatement (Second) of Torts required a product to be “unreasonably dangerous” to be found in defective condition. Id. at 551, 391 A.2d at 1024. The Court, however, felt that using the words “unreasonably dangerous” in a jury instruction inappropriately invited the trier of fact to consider matters usually identified with the law of negligence. Id. at 555, 391 A.2d at 1025. The Court quoted favorably from a decision by the California Supreme Court:

The result of the limitation ... [unreasonably dangerous] has not been to prevent the seller from becoming an insurer of his products with respect to all harm generated by their use. Rather, it has burdened the injured plaintiff with proof of an element which rings of negligence. As a result, if, in the view of the trier of fact, the ‘ordinary consumer’ would have expected the defective condition of a product, the seller is not strictly liable, regardless of the expectations of the injured plaintiff ...
We recognize that the words, ‘unreasonably dangerous’ may ... serve the beneficial purpose of preventing the seller from being treated as the insurer of its products. However, we think that such protective end is attained by the necessity of proving that there was a defect in the manufacture or design of the product, and such defect was a [legal] cause of the injuries.

Id. at 555, 391 A.2d at 1025, quoting Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 132-3, 104 Cal.Rptr. 433, 441, 501 P.2d 1153, 1161, 1162 (1972). Id. at 556, 391 A.2d at 1025. The Court declared that the words “unreasonably dangerous” have “no independent significance and merely represent a label to be used where it is determined that the risk of loss should be placed on the supplier.” Id. It felt that the court, rather than the trier of fact, was the competent party in determining whether the product’s alleged condition, in the abstract, would justify placing liability on the manufacturer. Id. at 558, 391 A.2d at 1026. It reasoned that a court is much better equipped to determine the social policies involved in determining whether the plaintiffs averments in his complaint merit recovery. Id.

Most pertinent to the present appeal, the Court concluded its analysis by declaring:

For the term guarantor to have any meaning in this context the supplier must at least provided a product which is designed to make it safe for the intended use. Under this standard, in this type of case, the jury may find a defect where the product left the supplier’s control lacking any element necessary to make it safe for intended use or possessing any feature that renders it unsafe for the intended use. It is clear that the term ‘unreasonable dangerous’ has no place in the instructions to a jury as to the question of ‘defect’ in this type of case. We therefore agree with the court ,en banc that the use of the term ‘unreasonably dangerous’ in the charge was misleading and that the appellee was entitled to a new trial.

Id. at 559, 391 A.2d at 1027 (emphasis added) (footnotes omitted). The Court declared in its final footnote, footnote 12, as follows:

We believe an adequate charge to the jury, one which expresses clearly and concisely the concept of ‘defect,’ while avoiding the interjection of the ‘reasonable man’ negligence terminology, is the jury instruction directed to the definition of a ‘defect.’ which was fashioned in large part by the Pennsylvania Supreme Court Committee for Proposed Standard Jury Instructions, Civil Instruction Subcommittee:
‘The [supplier] of a product is the guarantor of its safety. The product must, therefore, be provided with any element necessary to make it safe for [¿is intended ] use, and without any condition that makes it unsafe for [¿is intended ] use. If you find that the product, at the time it left ' the defendant’s control, lacked any element necessary to make it safe for [its intended ] use or contained any condition that made it unsafe for [¿is intended ] use, then the product was defective, and the defendant is liable for all harm caused by such defect.’ Pennsylvania Standard Jury Instruction 8.02 (Civil), Subcommittee Draft (June 6, 1976)

Id. at 559-560, 391 A.2d at 1027 (emphasis added).

The Court’s pronouncements in Azzarello lead to the conclusion that the appropriate jury instruction in the case sub judice was that a product is only defective when it is not safe for intended use. The Court repeated the formulation “intended use” six times in its Opinion. The Court, although noting that an adequate charge to the jury was contained in Pennsylvania Standard Jury Instruction 8.02 (Civil), Subcommittee Draft (June 6, 1976), while quoting that charge supplemented it with the word “intended” in brackets before the words “use.” The Court’s addition of the word “intended” in the standard jury instruction, and its declaration in the body of the opinion that “the jury may find a defect where the product left the supplier’s control lacking any element to make it safe for its intended use or possessing any feature that renders it unsafe for the intended use,” is a clear signal that the Court anticipated its use in products liability cases of this genre.

More significantly, the Court in Azzarello established a two-step evaluation of whether a product was defective. First, the court was to make a risk-utility analysis of the plaintiffs averments to determine whether, as a matter of social policy, recovery was permissible. See Fitzpatrick v. Outboard Marine Corporation, 424 Pa.Super. 473, 623 A.2d 322 (1993). Next, the jury’s role was to determine whether the averments in the complaint were supported by the facts of the case. Assuming that the court, as a matter of social policy, determined that the plaintiffs averments stated a remedial loss, the jury would still have to analyze whether the facts bolstered the plaintiffs case. If the jury charge only required a product be “safe for use” rather than “safe for intended use,” the jury would have no guidance as to how to determine whether a product was defective. Liability would be virtually mandated in every case that the judge allowed to go to the jury, despite the Azzarello Court’s determination that the jury would be allowed to determine the facts of the particular case. While we do not think a jury has to be given the “intended use” instruction under every factual circumstance, surely the instruction should be used where the facts indicate the injured product user may have been the proximate cause of the accident through using the machine in an unanticipated way.

The failure to instruct the jury that a product has to be “safe for intended use” is surely prejudicial. Presently, the evidence suggested that the plaintiffs predicament was caused after he knowingly or unknowingly defeated one of the compressor’s safety features. He did this so he could either (1) perform a cleaning maneuver that was highly dangerous or (2) take a ride by hanging on the ram as it was moving upwards. The court, which was solely responsible for passing on the plaintiffs averments in the abstract, could not and did not pass on whether a defect in reality existed or whether the plaintiffs conduct was the proximate cause of the accident. By instructing the jury that the baler had to be “safe for use,” the court allowed the jury to conclude that the baler had to contain safety features that would defeat any attempt to use the machine in a highly improper fashion.

We find our ruling supported by the pronouncements in cases subsequent to Azzarello. We find particularly instructive the words of Judge Spaeth in our en banc decision of Dambacher by Dambacher v. Mallis, 336 Pa.Super. 22, 485 A.2d 408 (1984):

[T]he jury is not to find liability when the product is unsafe in some way; liability may only imposed only on proof that the product lacked any element necessary to make it safe for its intended use. As the Supreme Court said in Berkebile v. Brantly Helicopter Company, 462 Pa. 83, 337 A.2d 893 (1975):
Thus, the plaintiff cannot recover if he proves injury from a product absent proof of defect, such as developing diabetic shock from eating sugar or becoming intoxicated from drinking whiskey. Neither can plaintiff recover by proving a defect in the product absent proof of causation as where the plaintiff sustains eye injury while not wearing defective safety glasses.

Id. at 53, 485 A.2d at 424 (emphasis in original); see also Carrecter v. Colson Equipment Co., 346 Pa.Super. 95, 100, 499 A.2d 326, 329 (1985) (lower court’s definition of defective, in jury instruction which tracked Azzarello’s language of unsafe for intended use, is correct); Am.Law Prod.Liab.3d § 713, p. 23.

Having determined that the lower court erred in this respect, we find a new trial is mandated.

We reverse and remand for proceedings consistent with this decision. Jurisdiction is relinquished.

BECK, J., concurs in the result.

      . On appellant’s right hand, the middle phalanges of the index and middle fingers were seriously fractured, the flexor and extensor tendons of those fingers were severed, he suffered extensive nerve and blood vessel damage to those fingers, and he lost extensive palmar surface on his right index finger. On appellee’s left hand, the flexor tendons of the index and middle fingers were severed.

      . We note that the record contains no indication that such an analysis was undertaken by the lower court. While our prior cases have not explicitly required as of yet an on-the-record analysis, or even a reference that a risk-utility analysis was made, we note that either would facilitate an appellate court's analysis.

      . The appellee testified that he literally climbed on the baler/compactor, placing his right foot on one cross member and his left foot on another, so he could clean out cardboard on the far side of the machine. While appellee, is correct that there is no testimony that he "prostrat[ed] his entire upper body between the ascending ram and the top of the baler,” Appellant’s Brief p. 29, it is clear that this maneuver exposed parts of his body to risk that the ascending ram would catch them against the top of the baler.


author: HUDOCK, Judge:

text:
    626 A.2d 627
    COMMONWEALTH of Pennsylvania, Appellee, v. James SWINSON, Appellant.
    Superior Court of Pennsylvania.
    Submitted March 29, 1993.
    Filed June 16, 1993.

      Fred A. Faber, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before ROWLEY, President Judge, and HUDOCK and BROSKY, JJ.
   HUDOCK, Judge:

This is an appeal from the judgment of sentence imposed upon Appellant after he was found guilty by a jury of robbery, theft, receiving stolen property, and criminal conspiracy. Timely filed post-verdict motions were denied by the trial court, and Appellant was sentenced to concurrent terms of not less than three (3) years nor more than ten (10) years for the crimes of robbery and criminal conspiracy. A direct appeal was filed and dismissed by this Court without prejudice to Appellant’s rights under the Post Conviction Relief Act, as a result of appellate counsel’s failure to file a brief for Appellant. On August 26, 1992, Appellant, through court appointed counsel, filed a petition pursuant to the Post Conviction Relief Act. Appellant’s petition was granted and Appellant’s right to appeal from the judgment of sentence entered on August 22, 1989, was reinstated nunc pro tunc. This appeal followed. We affirm.

The facts and procedural history are ably summarized by the trial court as follows:

On November 30,1987, at approximately 8:00 P.M., security guard John R. Holland was driving in the vicinity of 58th and Master Streets, Philadelphia, Pa. Needing to urinate, Mr. Holland stopped his car by the curb, exited the car and opened the trunk to shield himself from the view of others. Inside the trunk were tools and two handguns, a .25 caliber pistol and a .38 caliber Derringer. Holland heard a noise and the trunk of the car was slammed against his chest. He looked up and saw four black males standing around him. Holland positively identified two of those men as [defendant] Mark Freeman and [Appellant] James Swinson.
[Appellant] locked his arm around Holland and removed a wallet from his jacket pocket which contained his driver’s license and $70. Freeman took three rings from his fingers. Freeman then indicated that they should take the guns. The four men fled with the wallet and the two handguns. [Appellant] had the .25 caliber pistol. Holland sustained no injuries. Holland reported the incident to the police and gave accurate descriptions of both Freeman and [Appellant]. He also supplied the police with receipts for the two handguns.
On December 3, 1987, at approximately 11:40 A.M., Arthur Klein was inside his shop, located at 4019 W. Girard Avenue [Philadelphia]. Klein was in the business of leasing properties. [Defendant Freeman and Appellant] were admitted by Klein. They asked to view an apartment that he had for rent. As Klein led the pair to a desk at the rear of the shop, he was attacked from behind. [Appellant] started punching Klein in the face; Freeman held a .25 caliber pistol to his head. Klein, who had a gun himself, shot Freeman. Freeman fell to the floor. Klein took Freeman’s pistol. During a struggle with [Appellant], Klein dropped Freeman’s pistol onto a shelf, but retained hold of his own gun. He was able to shoot [Appellant], who fell to the floor. [Freeman and Appellant] were arrested.
The .25 caliber pistol which had been wielded by Freeman was the same one which had been stolen from Holland on November 30, 1987.
On June 2, 1988, Detective George E. Myers, who was in charge of the Klein investigation, interviewed Holland in his home regarding the theft of this handgun the previous November. Later that evening, Myers returned to Holland’s home with two photographic arrays, one containing the picture of Freeman and one containing the picture of [Appellant]. [Each photographic array contained eight pictures of black males.] Holland identified the photos of both [Freeman and Appellant.] On June 3, 1988, Holland came to City Hall to testify with respect to the Klein matter. As soon as he entered the courtroom, he saw [Freeman and Appellant] and recognized them. He reported that fact to a district attorney in the courtroom and to Detective Myers, who was out in the hallway. Holland again looked at the photo arrays and once more identified [Freeman and Appellant.]

Trial Court Opinion, September 27, 1989, at pp. 2-3. Subsequently, Appellant and Freeman were arrested in connection with the November 30, 1987, robbery of Holland. Thereafter, Holland identified Appellant and Freeman in court at the preliminary hearing in the instant matter.

On appeal, Appellant presents the following questions for review:

1. Whether the court below erred by allowing into evidence [sic] concerning out-of-court identifications of Appellant and his Co-Defendant, and be [sic] allowing the Complaintant [sic] to make an in-court identification!?]
2. Whether the court below erred by allowing into evidence testimony about other crimes alleged to have been committed by Appellant and his Co-Defendant[?]
3. Whether the court below erred in permitting into evidence the testimony of Police Detective John Peterson, who read to the jury a statement purportedly given to him by the complaintant [sic] and was such error compounded by the court’s failure to give cautionary instructions as to the limited purpose for which such testimony, if admissible at all, could be used[?]
4. Was trial counsel ineffective for failing to request the cautionary instructions referred to in question 3, i.e., that the “prior consistent statement” could be considered in assessing credibility only, and could not be considered as substantive evidence!?]

Appellant’s brief at p. 2.

Appellant first argues that the trial court erred in denying his motion to suppress the identifications of him by Mr. Holland. Appellant contends that the June 2, 1988, photo identification by Mr. Holland was unduly suggestive and unreliable and that it rendered the subsequent in-court identification of him inadmissible. Specifically, Appellant asserts that Mr. Holland was permitted to examine front and side views when examining the photo array, and that the side view photographs contained biographical information, which included police photo numbers, age, names, and crimes previously charged. Thus, Appellant argues that it was clear to Mr. Holland that the photographs were “mug shots.” Appellant also contends that Mr. Holland was only able to identify his photo from the side view, which he alleges is impermissible due to the biographical information printed thereon. Appellant concludes that, because the initial photographic array was unduly suggestive, the robbery occurred at night and the area was dark, the identification at trial did not have an independent basis from the tainted out-of-court procedure. Accordingly, the trial court erred in permitting the identification testimony of Mr. Holland to be used at trial.

In reviewing claims of suggestive identification procedures, and whether identifications resulting from such procedures are admissible, “ Ve must determine whether the identification procedure was so suggestive and conducive to irreparable mistaken identity so as to deny the accused due process.’ ” Commonwealth v. Ennis, 394 Pa.Super. 1, 14, 574 A.2d 1116, 1122 (1990) (Quoting Commonwealth v. Thomas, 363 Pa.Super. 348, 352, 526 A.2d 380, 381 (1987), alloc. den., 517 Pa. 616, 538 A.2d 498). See also, Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264 (1989) (pictorial identification is unduly suggestive when it gives rise to a substantial likelihood of irreparable misidentification). Our scope of review in evaluating the trial court’s denial of Appellant’s motion to suppress has been summarized as follows:

... In reviewing this ruling our initial task is to determine whether the factual findings are supported by the record. “In making this determination, we are to consider only the evidence of the prosecution’s witnesses and so much evidence of the defense as, fairly read in the context of the record as a whole, remains uncontradicted.” ... If, when so viewed, the evidence supports the factual findings we are bound by such findings; we may reverse only if the legal conclusions drawn therefrom are in error ...[.] [Citations omitted.]

Commonwealth v. Henry, 410 Pa.Super. 324, 327, 599 A.2d 1321, 1322 (1991), (quoting Commonwealth v. Fahy, 512 Pa. 298, 309, 516 A.2d 689, 694-95 (1986)). “It is, however, exclusively the province of the suppression court to determine the credibility of witnesses and the weight to be accorded to their testimony.” Commonwealth v. Brinkley, 423 Pa.Super. 289, 291, 620 A.2d 1226, 1227 (1993) (quoting Commonwealth v. Neely, 298 Pa.Super. 328, 341, 444 A.2d 1199, 1205 (1982) overruled on other grounds in Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983)).

In the instant case, the defense presented no witnesses at the suppression hearing and the Commonwealth’s evidence remained uncontradicted. At the hearing, Holland testified that it was dark when he was accosted by three or four black men. However, he further testified that the incident lasted approximately thirty seconds and that, after being grabbed from behind, he was spun around so that he was face to face with Appellant, at which point he clearly was able to view Appellant’s face. Holland also stated that he viewed the eight photographs on June 2,1988, at his home, and on June 3,1988, in the hallway at the courthouse while testifying in the Klein case. On both occasions, he identified Appellant; on both occasions, he signed and dated the back of the photograph. Holland and Detective Myers both testified that Detective Myers did not in any way suggest he had a suspect that might be in any of the photo spreads shown to Holland, nor that any of the men pictured in the photographs were to be present the following day in the Klein case. Holland and Detective Myers stated that Holland was only told he was to report to testify in the Klein case as to the identity of his .25 caliber pistol, and that he was no longer in possession of the gun. Although Holland did testify that when he viewed the photo arrays he saw both the front view and the side view of the individuals in the photographs, Detective Myers testified that the manner in which the photographs were arranged allowed for only a frontal view, and that Holland had seen the side view only after he had identified Appellant and pulled the photograph out of the binder, the side view photo of Appellant being beneath the frontal view photo. The suppression court found Holland to be credible as to his testimony, but somewhat confused. Detective Myers further testified that, in compiling the photographic array, he selected seven photos of other black males that closely resembled Appellant.

In reviewing the evidence presented, we find that the trial court’s findings of fact and conclusions of law are supported by the record. In this Commonwealth, there exists no per se rule against the use of “mugshots” as a form of identification. Commonwealth v. Cambridge, 386 Pa.Super. 542, 546, 563 A.2d 515, 517 (1989), alloc. den., 525 Pa. 624, 578 A.2d 411 (1990). Rather, the use of photographs during an identification procedure must be analyzed under the facts and circumstances of each particular case. Cambridge, 386 Pa.Super. at 546, 563 A.2d at 517. Likewise, the fact that the detective’s and the victim’s testimony differ as to the manner in which the police conducted the identification procedure is not fatal. Commonwealth v. Hughes, supra, 521 Pa. at 440-41, 555 A.2d at 1273. Such inconsistencies do not provide a basis for suppression because the suppression court, as fact-finder, has the duty of determining the weight and credibility of the testimony. Id. In this instance, the suppression court found that, although Holland’s testimony was credible, he was somewhat confused as to the manner in which the photographs were shown to him. Because this conclusion is adequately supported in the record, Appellant’s argument to the contrary must fail.

Having concluded that the pre-trial photographic identification procedure was not unduly suggestive, we need not address Appellant’s argument that Holland lacked an independent basis for his in-court identification of Appellant, as such identification was not tainted by the photographic array. See Commonwealth v. Nelson, 399 Pa.Super. 618, 582 A.2d 1115 (1990), alloc. den., 527 Pa. 664, 593 A.2d 840 (1991); Commonwealth v. Hughes, supra.

Appellant next argues that the trial court erred in allowing into evidence testimony regarding the December 3, 1987 assault upon Mr. Arthur Klein. Klein testified as to the incident where Appellant and Freeman, using Holland’s gun, attacked him in his store while inquiring about an apartment Klein had for lease. Appellant contends that this testimony, which reiterated the facts of the Klein incident (specifically that Freeman held a gun to Klein’s head while Appellant shouted “shoot him, shoot him”) was clearly prejudicial and, in essence, permitted the jury to try two cases. We disagree.

Generally, evidence of other unrelated criminal conduct of an accused is inadmissible at trial except in limited circumstances. Commonwealth v. Morris, 493 Pa. 164, 175, 425 A.2d 715, 720 (1981). This rule originated because, “the commission of one crime is not proof of the commission of another, and the effect of such evidence is to create prejudice against the defendant in the jury’s mind.” Morris, 493 Pa. at 175, 425 A.2d at 720.

[T]here sometimes exist special circumstances which operate as exceptions to the general rule and bring the case within the equally well established principle that evidence of other crimes is admissible when it tends to prove (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial— in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other, (citation omitted). When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value, (footnote omitted).

Commonwealth v. Scarfo, 416 Pa.Super. 329, 384-85, 611 A.2d 242, 269 (1992) (quoting Commonwealth v. Peterson, 453 Pa. 187, 197, 307 A.2d 264, 269 (1973)). Wdien a particular exception applies, “the trial court must balance the need for the evidence against its potential prejudice in order to determine its admissibility.” Commonwealth v. Nelson, 389 Pa.Super. 417, 425, 567 A.2d 673, 677 (1989), alloc. den., 527 Pa. 623, 592 A.2d 44 (1990). Furthermore, “[a] trial court’s decision to admit evidence of other crimes committed by a defendant will not be reversed on appeal unless the trial court abused its discretion.” Nelson, 389 Pa.Super. at 425, 567 A.2d at 677.

In the within action, Appellant argues that the Klein incident does not fall within any of the above exceptions, and, as such, any evidence of that crime was inadmissible. Specifically, Appellant alleges that he was charged with an unarmed “hit and run” robbery that lasted thirty seconds in which no threat was made to Mr. Holland’s life. He thus contends that the Klein matter, which involved a loaded gun and the threat upon Klein’s life, is too remote and unrelated to the within action to be admissible. The trial court, however, found that the fact that the defendants used the same gun during the Klein incident on December 3, 1987, that was stolen from Holland on November 30, 1987, tended to establish the identity of Appellant and Freeman as the men who had robbed Holland. The court then determined that, although the evidence of the subsequent crime of violence was prejudicial, the prejudice to Appellant was far outweighed by its relevancy and importance to the Commonwealth’s case because its identification evidence was subject to challenge; i.e. Mr. Holland was in his sixties, the robbery occurred at night, he was only able to see the robbers’ faces for about thirty seconds, and the photographic identifications did not take place until six months after the robbery. See trial court opinion at pp. 9-10.

After a careful review of the record, we too find that the admission of testimony regarding the Klein incident was proper. The .25 caliber pistol pulled on Klein was determined to be one of the firearms stolen from Holland during the robbery only three days earlier. Thus, as the trial court found, the reference to the Klein case tended to establish the identity of Appellant as one of the men who had robbed Holland. Because “[ejvidence of a crime other than the one for which the defendant is being tried is admissible if it tends to show the identity of the perpetrator of the crime charged in the trial,” and, because “this testimony was clearly relevant as showing part of a chain, or sequence of facts, or part of the history of the event on trial,” we do not find that the trial court abused its discretion in admitting same. Commonwealth v. Evans, 332 Pa.Super. 301, 313, 481 A.2d 625, 631 (1984), rev’d on other grounds, 511 Pa. 214, 512 A.2d 626 (1985). See also, Commonwealth v. Beckham, 349 Pa.Super. 430, 433 n. 3, 503 A.2d 443, 445 n. 3 (1986) (in murder trial, evidence of previous, unrelated shooting held admissible to establish appellant’s identity because ballistics evidence evinced that same gun was used in both shootings); Commonwealth v. Nolen, 330 Pa.Super. 366, 376, 479 A.2d 595, 600 (1984), rev’d on other grounds, Commonwealth v. Evans, 511 Pa. 214, 512 A.2d 626 (1986) (in murder trial, evidence of unrelated burglary allegedly committed by appellant eight days before the within murder was relevant and probative and outweighed prejudice, where gun used in the murder was same gun stolen in the previous burglary).

Appellant next assigns error to the trial court for permitting Detective John Peterson to read from his report statements made to him by Holland during an interview regarding the incident in question. At trial, Holland “had been subject to extensive and vigorous cross-examination designed to cast doubt on his memory and general credibility.” Trial court opinion at p. 10. Immediately following Holland’s testimony, the Commonwealth called Detective Peterson to reiterate the description given to him, two days after the robbery, by Holland of his assailants and to read into the record the serial numbers for the guns stolen from Holland. No objection was made to this testimony. On cross-examination, defense counsel attempted to show contradictions between the written summary taken by Detective Peterson and Holland’s trial testimony. On redirect, Detective Peterson, over objection, read aloud his written summary of the statement given to him by Holland. Appellant contends that this statement was clearly hearsay and should not have been admissible at trial. Conversely, the Commonwealth contends, and the trial court found, that the statement was merely a prior consistent statement which was offered to rehabilitate Holland, whose credibility had been attacked by way of faulty memory. We agree.

It is well-established in this Commonwealth that prior consistent statements are hearsay when offered for the truth of their assertions. Commonwealth v. Wood, 417 Pa.Super. 264, 268-69, 612 A.2d 474, 476 (1992). “Such statements may be offered, however, to rehabilitate a witness whose credibility has been attacked with a charge of recent fabrication or faulty memory.” Wood, 417 Pa.Super. at 269, 612 A.2d at 476. Here, defense counsel, by bringing out inconsistencies in the descriptions given by Holland at trial of his assailants, and of the descriptions given to Detective Peterson, clearly advanced the issue of Holland’s credibility by inferring Holland had a faulty memory. Therefore, it was not error for the trial court to permit the Commonwealth to rebut the claim by introducing the written summation in its entirety. See Commonwealth v. Fielder, 417 Pa.Super. 455, 612 A.2d 1028 (1992) (witness’ prior consistent statement to police officer, including portion concerning events leading up to and during crime, was admissible to bolster witness’ credibility in response to defendant’s attempted impeachment of witness using inconsistent portion of statement; prior consistent statement admissible even though defendant had cross-examined the witness and questioned police officer on direct examination only as to portion of statement concerning mode of transportation by which witness arrived at crime scene).

In the alternative, Appellant argues that, even if the statement were admissible as a “prior consistent statement”, the court should have given a cautionary instruction to the jury as to the limited purpose of such testimony. We, however, will not reach the merits of this contention, as it has not been properly preserved for review. Appellant did not raise this argument in his post-verdict motions and/or in his statement of matters complained of on appeal, nor did the trial court address this argument in its opinion. See Commonwealth v. Green, 417 Pa.Super. 119, 122, 611 A.2d 1294, 1295 (1992) (issue not raised in post-trial motions and argued for first time on appeal was not preserved for appellate review). Accordingly, we find this issue waived.

Finally, Appellant, in a cursory argument, contends that defense counsel at trial was ineffective for failing to request the court to give a cautionary instruction with regard to Detective Peterson’s recitation of Holland’s statement to him. Appellant suggests that the jury should have been informed that the statement could be used only to assess credibility and not for its substantive content.

Claims of ineffectiveness of counsel are subject to a three-part analysis:

First, it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his client’s interest. Finally a showing must be made of how counsel’s choice of action prejudiced the client____ The law presumes that counsel was effective, so that the burden of establishing ineffectiveness rests squarely upon the defendant. [Citations omitted.]

Commonwealth v. Nelson, supra, 889 Pa.Super. at 423, 567 A.2d at 676. To prove prejudice from the ineffectiveness, Appellant must show that counsel’s errors had an adverse effect on the outcome of the trial. Commonwealth v. Boyles, 407 Pa.Super. 343, 358, 595 A.2d 1180, 1188 (1991), alloc. den., 531 Pa. 651, 613 A.2d 556 (1992). “An appellant must show that the error was ‘so serious as to deprive [him or her] of a fair trial, a trial whose result was reliable.’ ” Boyles, 407 Pa.Super. at 358, 595 A.2d at 1188 (quoting Commonwealth v. Morocco, 375 Pa.Super. 367, 371, 544 A.2d 965, 967 (1988), alloc. den., 520 Pa. 615, 554 A.2d 508 (1989)). Furthermore, trial counsel cannot be found to have rendered ineffective assistance of counsel for failing to pursue a course of action that had no arguable merit. Commonwealth v. Black, 398 Pa.Super. 364, 366, 580 A.2d 1391, 1392 (1990), alloc. den., 527 Pa. 628, 592 A.2d 1296 (1991). We shall address Appellant’s claim of ineffectiveness pursuant to these standards.

The testimony challenged by Appellant is as follows:

A. [Detective Peterson on redirect] If Your Honor pleases. In summary, we read the following information. He stated that on Monday night, 11/30/87, at about 8:00 p.m., he stopped his vehicle at 58th and Master Streets near the center of the schoolyard to relieve himself. He said after he got out of his vehicle he raised his trunk of the vehicle and at this time he was rushed by three black males and he explained the trunk lid went down almost hitting his hand. He went on to state that after they slammed down the trunk lid and the males reached and grabbed his wallet which was in his top, left, shirt pocket. And the heavt-set [sic] male grabbed two handguns he had in the trunk of his vehicle. When asked for his wallet, he said there was exactly two, 235 cards that he used for I.D., about $60.00 in cash. When asked for a description of the handguns, he said one was an FIF Model DH7638, derringer serial no. PR1125, silver in color, two shots, brown, plastic grips.
He said the other handgun was a .25 caliber pistol, Model GT27, 21// barrel, six-shot capacity, blue-steel finish, serial number MI79007, round, handgrips. No further description.
He said the Derringer cost him $85.00 and the .25 caliber pistol cost him $70.00.
Q. And then he goes on to state the way you read the paragraph the way you already read it to the jury; is that correct?
A. You’re talking about the rings?
Q. Right. The questions that Mr. Waller [Defendant Freeman’s trial counsel] asked you about, the rings; is that it?
A. Yes.
Q. And does that complete your report?
A. Yes, sir.

(N.T. at pp. 100-101). Even if we found that Appellant’s claim had arguable merit and that counsel had no reasonable basis designed to effectuate Appellant’s interest, in reviewing this testimony in conjunction with the testimony adduced from Holland and Detective Peterson on direct and cross-examination, Appellant has not demonstrated, nor does the record reflect, how he was prejudiced by the lack of a cautionary instruction. Holland and Detective Peterson had already testified to the information elicited on redirect. Thus, the summary recited by Detective Peterson was merely cumulative. Moreover, defense counsel for co-defendant Freeman opened the door by asking Detective Peterson to refer to, and ■read from, his report the number of assailants reported to have been involved in the incident, descriptions given to him by Holland of his assailants, which assailant was responsible for removing Holland’s jewelry, and in what direction the assailants dispersed subsequent to the robbery. At no time was this testimony limited by Appellant’s defense counsel, nor co-defendant Freeman’s defense counsel, to only impeachment purposes. The defense essentially raised the issue of Holland’s credibility, inferring Holland’s memory was faulty. Thus, the trial court did not abuse its discretion in permitting the Commonwealth to dispel any such inference. See Commonwealth v. Dreibelbis, 493 Pa. 466, 479, 426 A.2d 1111, 1117 (1981) (when a party raises an issue on cross-examination, it will be no abuse of discretion for the court to permit re-direct on that issue in order to dispel any unfair inference). Accordingly, we cannot find trial counsel ineffective and Appellant’s claim to the contrary is without merit.

Judgment of sentence affirmed.

      . 18 Pa.C.S. § 3701.

      . 18 Pa.C.S. § 3921.

      . 18 Pa.C.S. § 3925.

      . 18 Pa.C.S. § 903.

      . The crimes of theft and receiving stolen property merged for sentencing purposes. See Commonwealth v. Yancey, 301 Pa.Super. 427, 447 A.2d 1041 (1982).

      . 42 Pa.C.S. § 9541 et seq.

      . Appellant’s first two claims present the same facts and issues as were rejected by a panel of this Court in a related case involving Appellant’s co-defendant, Freeman. However, because that decision was in an unpublished memorandum opinion, it cannot be relied upon nor cited for precedential value. Commonwealth v. Sperry, 395 Pa.Super. 400, 404 n. 4, 577 A.2d 603, 605 n. 4 (1990); Commonwealth v. McPherson, 368 Pa.Super. 274, 278 n. 4, 533 A.2d 1060, 1062 n. 4 (1987). See also, Internal Operating Procedures of the Superior Court § 65.37.