author: FORD ELLIOTT, Judge:

text:
    659 A.2d 1043
    P.C.S. v. J.E.B. v. R.A.S. Appeal of J.E.B., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed June 8, 1995.
    Reargument Denied Aug. 8, 1995.

      Steven Howell, Carlisle, for appellant.
    Michael R. Rundle, Carlisle, for P.C.S., appellee.
    William C. Vohs, Carlisle, for R.A.S., appellee.
    Before TAMILIA, HUDOCK, and FORD ELLIOTT, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging an order entered in the support action below, July 18, 1994, directing blood testing of all relevant parties pursuant to 23 Pa.C.S.A. § 5104. For the purposes of both confidentiality and convenience, we shall refer to the various parties as follows: plaintiff/appellee, P.C.S., shall be ‘Wife;” additional defendant/appellee, R.A.S., shall be “Husband;” and defendant/appellant, J.E.B., shall be “Putative Father.” Upon careful review of the issues raised on appeal by Putative Father, we affirm.

The facts underlying this appeal bear review. Husband and Wife were married September 19, 1981. A child was born to Husband and Wife on October 31,1985, and is not the subject of these proceedings. In July 1989 Husband underwent a vasectomy procedure. Thereafter, until July 1992, Husband and Wife engaged in regular sexual intercourse without benefit of any other form of contraception. Wife did not conceive during this time. Husband and Wife separated in mid-July 1992, and Husband moved out of the marital residence.

In August 1992, Wife began a sexual relationship with Putative Father, whom she had known since 1986. Wife and Putative Father engaged in sexual intercourse several times during August and continued until a reconciliation between Husband and Wife occurred during the first week of September 1992. Husband then moved back into the marital residence. We note that testimony was adduced that Husband and Wife engaged in sexual relations during the period of separation. Notes of testimony, 7/11/94 at 240. Wife first learned that she was pregnant on September 15, 1992. It is this child that is the subject of the instant support action.

On September 29, 1992, Husband underwent, for the first time, a fertility test which verified that he was infertile. Husband continued to reside with Wife, but eventually filed for divorce February 9, 1993. The child that is the subject of this support action was born May 19, 1993. The divorce between Husband and Wife was finalized May 27, 1993. Husband continued to reside with Wife until approximately July 13, 1993, at which time he moved from the household. Husband removed himself from the household when it became clear that Wife would not give up the subject child for adoption. Notes of testimony, 7/11/94 at 21-22.

On appeal, the Putative Father raises multiple arguments which may effectively be couched as three distinct issues:

1. Has the presumption that a child born during a marriage is a child of that marriage been overcome by clear and convincing evidence?
2. Are Husband and/or Wife estopped from asserting paternity outside of the marriage?
3. Have Husband and Wife effectively admitted the paternity of Husband by failing to respond to Putative Father’s Request for Admissions, pursuant to Pa.R.C.P. Rule 4014(b)(d), 42 Pa.C.S.A.?

We shall address these matters seriatim.

Putative Father’s first and second issues challenge the ability of the trial court to order blood testing of the respective parties pursuant to 23 Pa.C.S.A. § 5104. We begin our discussion of Putative Father’s first issue by observing that one of the strongest presumptions known to our law is that a child born to a married woman is a child of the marriage. John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990); Kohler v. Bleem v. Kohler, 439 Pa.Super. 385, 654 A.2d 569 (1995); McCue v. McCue, 413 Pa.Super. 71, 604 A.2d 738 (1992), allocatur denied, 531 Pa. 655, 613 A.2d 560 (1992). Blood testing may not be used to rebut this presumption in the first instance; rather, the presumption must first be rebutted by other clear and convincing, evidence. McCue, supra, 413 Pa.Super. 71, 604 A.2d 738.

Putative Father relies on various case precedents for the proposition that this presumption can only be overcome by clear and convincing proof of either non-access or impotency, citing, inter alia, Jones v. Trojak, 535 Pa. 95, 634 A.2d 201 (1993). We agree, generally, with this proposition. However, Putative Father goes on to contend that the impotency prong for rebutting the presumption is restricted to meaning incapacity for sexual intercourse. Putative Father derives his definition of impotency from Manbeck v. Manbeck, 339 Pa.Super. 493, 489 A.2d 748 (1985), an appeal from a divorce action in which the marriage was annulled because of the wife’s “impotency” (incapacity for sexual intercourse). Putative Father’s argument concludes that since Husband and Wife admit to sexual intercourse before and during the time of conception, obviously impotency has not been proven by any evidence, clear, convincing, or otherwise. We disagree.

Putative Father misperceives our case law. Although many cases do speak of rebutting the presumption of paternity by clear and convincing evidence of non-access or impotency, we do not believe that our precedents mean to restrict the impotency prong to impotency per se. We believe that our cases actually intend impotency to refer also to an inability to procreate. This can be readily shown by reciting to precedent ourselves:

This presumption (which we will henceforth refer to as the presumption that a child born to a married woman was the child of that marriage) could traditionally be overcome only by proof that the husband did not have access to his wife during the period of possible conception, or by proof of the husband’s impotency or sterility.

John M. v. Paula T., 524 Pa. at 313-14, 571 A.2d at 1384 (citations omitted).

‘Traditionally, that presumption could be rebutted only by proof that a husband was incapable of procreation or had no access to his wife during the relevant period.’

McCue v. McCue, supra, 413 Pa.Super. at 75, 604 A.2d at 740 (citations omitted). Thus, we find no merit to Putative Father’s argument. The presumption can be rebutted by clear and convincing evidence of sterility or an inability to procreate. We believe that a vasectomy, where the operation’s success is confirmed by a sperm count analysis, qualifies as clear and convincing evidence of an inability to procreate.

Obviously, anticipating this conclusion, Putative Father also raises the argument that a post-conception fertility test cannot be used to verify the results of a vasectomy. Putative Father recites Bohn v. Lunger, 340 Pa.Super. 369, 490 A.2d 465 (1985), for this proposition. In Bohn the trial court refused to allow the defendant to introduce medical testimony that he was found aspermatic during a test performed four months after the birth of the child. The court ruled the test irrelevant because it did not indicate the defendant’s condition at the time of conception. The court also indicated evidence casting doubt on whether defendant ever underwent a vasectomy.

We do not find Bohn to apply. First, although clearly the instant fertility test was performed after conception, it was performed near enough to the time of conception to be probative. Second, we also note that additional evidence was presented that Husband and Wife engaged in unprotected sexual relations for many months following Husband’s vasectomy and yet Wife failed to conceive. This also indicates that Husband’s vasectomy operation was successful. We do not find that the court below was unjustified in regarding the presumption of paternity to have been rebutted by clear and convincing evidence.

We also do not find that Husband and Wife are estopped from denying Husband’s paternity as Putative Father contends in his second argument. Putative Father’s second argument is predicated on another well-established line of cases which hold that even where the presumption of paternity might otherwise be overcome, the parties will nevertheless be estopped from doing so under certain circumstances:

However, under certain circumstances, a person might be estopped from challenging paternity where that person has by his or her conduct accepted a given person as the father of the child. John M., 524 Pa. at 318, 571 A.2d at 1386. These estoppel cases indicate that where the principle is operative, blood tests may well be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. Id. However, the doctrine of estoppel will not apply when evidence establishes that the father failed to accept the child as his own by holding it out and/or supporting the child. Christianson, 390 Pa.Super. at 409, 568 A.2d at 966. Only when the doctrine of estoppel does not apply will the mother be permitted to proceed with a paternity claim against a putative father with the aid of a blood test.

Jones v. Trojak, supra 535 Pa. at 105-06, 634 A.2d at 206. See also Christianson v. Ely, 390 Pa.Super. 398, 568 A.2d 961 (1990).

Putative Father lists the following factors as indicative that Husband and Wife have held themselves out as the parents of the subject child:

First, Husband and Wife resided together is [sic] a jointly owned marital residence at the time of the child’s conception in August 1992 and at the time of his birth in May 1993. (R. 29a, R. 61a, R. 218a). Second, Husband and Wife engaged in sexual' intercourse in August 1992. (R. 61a, R. 239a, R. 240a). Husband testified that he and his wife engaged in sexual intercourse at least three to four time [sic] from July 17, 1992 through September 5, 1992. (R. 239a and R. 240a). Third, Husband and Wife remained in the same marital household from the time of conception in August 1992 up through and including July 13, 1993. (R. 61a). Fourth, during the pregnancy and for two months after the child’s birth, Husband testified that he paid most of the household expenses including the mortgage, food and utilities. (R. 219a, R. 244a, and R. 245a). Fifth, Husband and Wife admit that they reconciled their marital difficulties after both knew of the Wife’s pregnancy. (R. 218a, R. 229a, R. 223a, R. 242a, and R. 243a). Sixth, the child shares the same middle initial and last name as that of the Husband and older sibling. Seventh, Husband remained in the marital home with his Wife after his wife informed him of the pregnancy and after he learned the results of the post-conception sperm test. (R. 61a, R. 242a, R. 243a). Finally, Husband and Wife did not separate until July 13, 1993, almost two months after the child’s birth. (R. 29a, R. 61a, R. 213a, R. 214a). These facts indicate an intact marriage at the time of the child’s conception in August 1992.

Putative Father’s brief at 22-23. We disagree that these factors indicate that Husband and Wife accepted the subject child as Husband’s.

All but one of the listed factors describe events and conditions that pertain more to the nature of the relationship between Husband and Wife rather than their relationship visa-vis the subject child. The Sixth factor is the only one that could, with the addition of certain information, support a finding of estoppel. However, we find this factor to be sufficiently rebutted by additional evidence.

Arrayed against Putative Father’s position are a host of factors indicating that neither Husband nor Wife ever maintained that Husband was the subject child’s father. During her pregnancy, Wife told friends and co-workers that the child was Putative Father’s. Notes of testimony, 7/11/94 at 26. In their separation agreement, appended to and made a part of their divorce decree, Husband and Wife named Putative Father as the biological father of the subject child. Notes of testimony, 7/11/94 at 10. Putative Father was named as the biological father on the subject child’s birth certificate. Notes of testimony, 7/11/94 at 11-12. Wife’s medical insurance paid for the subject child’s birth expenses. Notes of testimony, 7/11/94 at 13. Wife filed for child support against Putative Father following the birth of the subject child. Notes of testimony, 7/11/94 at 25. Furthermore, rather than exhibiting an attitude of acceptance and acknowledgment, Husband clearly found the subject child objectionable. We note the following testimony by Wife:

As far as my family goes, they knew the situation behind— they knew that Rick [Husband] wanted me to have an abortion or give the child up for adoption. They knew I wouldn’t. And they knew the tension between us and his inability to accept my pregnancy state. And it was uncomfortable.

Notes of testimony, 7/11/94 at 20. , And later:

During my pregnancy with [the subject child] I was considering abortion. And halfway through I knew I couldn’t. I was considering giving [the subject child] up for adoption. And he [Husband] did not leave the residence until he knew I wouldn’t give [the subject child] away.

Notes of testimony, 7/11/94 at 21-22. It seems clear to us that Husband and Wife never acknowledged the subject child as Husband’s offspring.

We may quickly dispose of Putative Father’s final argument. Therein, Putative Father asserts that Husband and Wife must be deemed to have admitted facts that preclude their denial of Husband’s paternity by their failure to timely respond to a Request for Admissions. We disagree.

The parties are contesting the application of the following Rule of Civil Procedure which reads, in pertinent part:

(b) Each matter of which an admission is requested shall be separately set forth. The matter is admitted unless, within thirty days after service of the request, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission an answer verified by the party or an objection, signed by the party or by his attorney; but, unless the court' shortens the time, a defendant shall not be required to serve answers or objections before the expiration of forty-five days after service of the original process upon him....

Pa.R.Civ.P. Rule 4014(b), 42 Pa.C.S.A.

Instantly, Putative Father filed his Request for Admissions as to Wife on January 10, 1994. Wife answered by filing a Response on February 17, 1994. Putative Father filed his Request for Admissions as to Husband on March 15, 1994. Husband never responded.

Rule 4014(b) does not set an absolute deadline date for filing answers to requests for admissions. Rather, it sets a tentative date of thirty days following service of the request, “or within such shorter or longer time as the court may allow.” In the case before us, Wife filed her Response on the thirty-eighth day following service (and this assumes that service of the Request was had on the same day as its filing). No objection was raised to Wife’s “late” filing during trial, nor was any averment contained in her Response directly challenged as having been already admitted. Moreover, the court clearly adopted some of the positions taken in the Response rather than in the Request for Admission. The conclusion that we draw from these facts is that the trial court effectively accepted Wife’s Response filed on the thirty-eighth day and thus allowed “such longer time” as prescribed under Rule 4014.

Further, as Wife correctly indicates, any Admissions arising from Husband’s failure to respond to the Request for Admissions directed toward him cannot be imputed to Wife because Wife and Husband are separate parties with disparate interests. See Frazier v. Commonwealth of Pennsylvania, State Retirement Board, 17 Pa.Cmwlth. 243, 331 A.2d 596 (1975).

As for the unanswered Request for Admissions that was directed to Husband, we find ourselves in agreement with the trial court; Putative Father should have lodged his objection before lengthy testimony contradicting the Admissions was taken at trial. See notes of testimony, 7/11/94 at 60-62. As soon as objectionable testimony was offered, Putative Father should have objected on the basis that an Admission declared otherwise. In failing to do so, Putative Father waived any such objection both then at trial and now on appeal. We have previously stated: ‘We will not consider a claim on appeal which was not called to the trial court’s attention at a time when any error committed could have been corrected.” Noecker v. Johns-Manville Corporation, 355 Pa.Super. 463, 471, 513 A.2d 1014, 1018 (1986). In short, we find the facts underlying this case to be as they were adduced at trial, and as they were found by the trial court, and not as they were purported in Putative Father’s Request for Admissions.

Accordingly, the order below is hereby affirmed. Jurisdiction relinquished.

      . The notes of testimony employ the date September 15, 1993. See notes of testimony, 7/11/94 at 7. It is apparent from all other testimony and the rest of the record, however, that this date should have read 1992.

      . Wife learned she was pregnant on September 15, 1992, and Husband was tested September 29, 1992.

      . For example, the Response denied that Husband was capable of procreation.


source: Caselaw Access Project

author: CIRILLO, Judge:

license: Public Domain

text:
    659 A.2d 1048
    Judith LAYNE, Jill Layne, Joan Layne, Scott Layne, Jacqueline Layne and Barbara Layne, Appellants, v. Abigail LAYNE and Merril Lynch.
    Superior Court of Pennsylvania.
    Argued April 6, 1995.
    Filed June 13, 1995.

      Joseph A. Ryan, Philadelphia, for appellant.
    Walter M. Rohlfs, West Chester, for Layne, appellee.
    Daniel T. Fitch, Philadelphia, for Merrill Lynch, appellee.
    Before CIRILLO, JOHNSON and SAYLOR, JJ.
   CIRILLO, Judge:

Appellants Judith Layne, Joan Layne, Jill Layne, Scott Layne, Jacqueline Layne and Barbara Layne appeal from the judgment entered in the Court of Common Pleas of Chester County. We reverse in part and affirm in part.

In 1981, the decedent, John L. Layne, married appellee Abigail Layne. In September of 1982, the decedent set up a Keogh pension plan (the Plan) through the Paoli office of appellee Merrill Lynch. In 1984, the decedent executed a change of beneficiary form, naming Abigail as the primary beneficiary of the Plan and his children, appellants, as secondary beneficiaries.

Thereafter, the decedent suffered a stroke. During his illness, the decedent and Abigail became estranged. Early in May of 1985, the decedent contacted his attorney, Graham Andes, and instructed him to change the beneficiary of the Plan from Abigail to his children, to delete Abigail as a beneficiary of the Plan, and to revoke the Power of Attorney he had previously given to her. The decedent also instructed his attorney to prepare a new will expressly disinheriting Abigail.

On May 18, 1985, the decedent executed a revocation and a new will. At the same time, he initiated an action in divorce. The beneficiary designation for the pension plan, however, was never changed.

The decedent and Abigail entered into a property settlement agreement and were divorced on June 16, 1988. The terms of the property settlement agreement were read into the record at the equitable distribution hearing. The relevant portion of the agreement provides:

With regard to other items of personal property — and I include in that the Shawnee Time Sharing and any pensions, money market accounts, savings accounts in the husband’s name — will be solely the husband’s, (emphasis added).

At the conclusion of the master’s hearing, both parties acknowledged that they understood the terms of the settlement agreement. This settlement agreement was incorporated into the divorce decree. The decree reads:

AND NOW, this 16th day of June, 1988, based upon the Report and Recommendation of Mark Blank, Jr., Esquire, Special Master, and no exceptions having been filed, it is hereby Ordered and Decreed that: 1. John L. Layne, Plaintiff and Abigail W. Layne, Defendant are divorced from the bonds of matrimony. 2. The parties shall comply with all of the provisions of the Agreement reached in this matter, which provisions are set forth at length in the Special Master’s Report.

The decedent passed away in August of 1990. At that time, the assets of the Plan were valued at $67,500.00. The children filed suit asking the court to direct Merrill Lynch to transfer the assets of the Plan to them as secondary beneficiaries.

Following a non-jury trial, the court found that the beneficiary designation was not changed after 1984 and that the terms of the property settlement agreement did not alter the designation. The court stated that it was bound by this court’s decision in Equitable Life Assurance Society of the United States v. Stitzel, 299 Pa.Super. 199, 445 A.2d 523 (1982). On June 1, 1993, the court entered an adjudication in favor of Abigail and against the children. Appellants filed post-trial motions. Thereafter, the court vacated the adjudication and ordered an additional hearing. On May 19, 1994, the court entered a verdict in favor of Abigail and dismissed the case against appellee Merrill Lynch.

Appellants/children filed this appeal. Three issues are presented for our review:

Did the trial court err in holding, contrary to the public policy of Pennsylvania, that the divorce of Abigail Layne and John Layne did not work an automatic revocation of the beneficiary designation on John Layne’s Keogh Pension Plan?
Did the trial court err in refusing to order specific enforcement of the property settlement agreement between John Layne and Abigail Layne, as it appears on the record of the Master’s hearing?
Did the trial court err in entering judgment for Merrill Lynch Pierce Fenner & Smith, Inc., despite its negligent failure to complete the change of beneficiary designation requested by John Layne?

In Stitzel, supra, 299 Pa.Super. 199, 445 A.2d 523, the question on appeal was whether the parties’ property settlement agreement revoked wife’s designation of her husband as the beneficiary of her life insurance policy. On June 1, 1977, the deceased (Wife) designated her husband as the revocable beneficiary of the policy. A year later, the parties experienced marital difficulties. Thereafter, the parties executed a property settlement agreement which provided that each party relinquished

any and all claims, ... actions, causes of action ... of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by said other party prior to and including the date hereof ...

A divorce decree was entered on May 5, 1980. A few days later wife died of accidental causes. Although wife had changed the beneficiary designation for two savings plans from her husband to her father, the beneficiary designation on her life insurance policy remained unchanged. Wife’s father filed a claim for the proceeds, contending that the property settlement agreement revoked the designation. The trial court disagreed and entered judgment in favor of the husband.

On appeal, this court affirmed, finding that the general language in the agreement was insufficient to waive the beneficiary designation. We stated:

We are unwilling to hold that the broad language of the property settlement agreement clearly deprived the [husband] of his interest in the life insurance proceeds. Instead, we require a party to explicitly waive his interest in the life insurance proceeds in the property settlement agreement ____ Since there is no express language in the property settlement agreement by which the beneficiary designation was revoked, we find that the appellee remains the beneficiary and is entitled to the proceeds.

Stitzel, 299 Pa.Super. at 203, 445 A.2d at 525.

Ten years after the Stitzel decision, this court decided Roth v. Roth, 413 Pa.Super. 88, 604 A.2d 1033 (1992). In Roth, Husband designated his Wife as the beneficiary of his pension plan. The parties divorced in 1986 and entered into a property settlement agreement which specifically addressed claims against retirement benefits:

Retirement/Pi'ofit-Sharing/Pension Plans
Each of the parties hereto generally and specifically mutually releases the other from any interest he or she may have in the other’s retirement, pension and/or profit-sharing plans of any nature and kind whatsoever.

Husband died in 1990 and it was learned at that time that his beneficiary designation had not been changed. A dispute arose between Wife and the executor of husband’s estate. The trial court granted specific performance of the property settlement agreement and Wife appealed.

Acknowledging that the legal right to the death benefit arises from the contractual beneficiary designation and not from the marital relationship, this court emphasized that the inquiry does not end with the contractual designation. 413 Pa.Super. at 92, 604 A.2d at 1035.

[T]he question is whether the right to the lump sum pension death benefit, which arises from the beneficiary designation, falls within the separation/settlement agreement---- We believe ... that a lay person entering into a comprehensive separation/settlement agreement, which includes a provision wherein each party has relinquished any claim to the other party’s pension benefits, would only conclude any lump sum death benefit was included.

Id. The Roth court found that the parties’ agreement included the pension death benefit. The court went on to distinguish Stitzel, noting that the general language in the Stitzel agreement differed from the specific provision in the Roth agreement. The Stitzel agreement provided a general waiver of “any and all claims, ... actions, causes of action ... of whatsoever kind or nature, for or because of any matter or thing done, omitted, or suffered to be done by said other party----” The Roth agreement specifically expressed each party’s relinquishment of the other’s pension.

In the case before us, the parties specifically provided that each would have no rights in the pension of the other. “[S]uch a clear and direct handling of each party’s pension rights works to revoke the beneficiary designation. This decision is not in contradiction with Stitzel.” Roth, 413 Pa.Super. at 92, 604 A.2d at 1036. As stated above, the trial court in this case stated that it was bound by Stitzel, the law in effect at the time of the decedent’s death on August 19, 1990. We agree with this statement. We disagree, however, with the court’s interpretation of Stitzel. Here, as in Roth, the parties’ property settlement agreement specifically provides that the pension would be “solely the husband’s.” Like in Roth, this includes the pension death benefit. Roth, 413 Pa.Super. at 92, 604 A.2d at 1035. Though not artfully stated, the effect of the property settlement agreement here is the same as in Roth. Furthermore, the language used here and in Roth is distinguishable from the general waiver language used in Stitzel. The trial court, though bound by Stitzel, was equally bound to distinguish it where appropriate. We con- < elude, therefore, that the terms of the parties’ agreement, which were read into the record at the master’s hearing, were sufficiently specific to revoke the beneficiary designation.

In their final claim, appellants argue that Merrill Lynch was negligent in failing to accomplish the change of beneficiary allegedly requested by the decedent. At trial, appellants presented the testimony of J. Graham Andes, decedent’s attorney, and Scott Layne, the decedent’s son. Mr. Andes testified that he spoke with Mr. Hoey, a representative of Merrill Lynch, and informed him that the Mr. Layne, the decedent, wished to change his beneficiary on his pension account. Mr. Andes requested Mr. Hoey to send the change of beneficiary form to Scott Layne. Scott Layne testified that he never received a change of beneficiary form from Merrill Lynch.

Mr. Hoey testified on behalf of defendant/appellee Merrill Lynch. Mr. Hoey stated that he recalled no discussion, either with Mr. Andes or any of the Layne children, regarding a change of beneficiary form. He also testified that the last beneficiary form he had in the decedent’s file was dated 1984, and listed Abigail Layne as the beneficiary.

The trial court determined that appellants had failed to establish that Merrill Lynch was negligent, finding the testimony of Mr. Hoey to be more credible. Appellants argue that the trial court’s finding is not supported in the record. We disagree.

Here, the trial judge sat as fact finder. The findings of a trial court in a non-jury case must be given the same weight and effect on appeal as the verdict of a jury, and those findings will not be disturbed on appeal absent an error of law or abuse of discretion. Pato v. Cernuska, 342 Pa.Super. 609, 612, 493 A.2d 758, 759 (1985). Our review indicates that there is sufficient competent evidence in the record to support the court’s determination. See Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985). Where there is sufficient evidence to support its findings, we will not disturb the trial court’s credibility determinations. We conclude, therefore, that the trial court did not abuse it discretion or commit an error of law. Pato, supra, 342 Pa.Super. 609, 493 A.2d 758.

The judgment is reversed with respect to appellants’ claim against Abigail Layne, and affirmed with respect to appellants’ claim against Merrill Lynch.

      . The decedent’s will provided:
      I specifically note that at the time of the signature of this Will that I am estranged from my Wife, ABIGAIL WALDRON EVANGELISTO LAYNE and have filed divorce proceedings against her. It is my specific intention to disinherit her.

      . We note that appellee contends that the appeal should be dismissed because no post-trial motions were filed. Although this is accurate as to the May 19, 1994 verdict, from which the appeal is taken, the appellants did file post-trial motions to the June 1, 1993 adjudication. The trial court disposed of these motions in an opinion. We find, therefore, that our appellate review has not been jeopardized and will address those claims on appeal which the trial court had the opportunity to address.

      . In December of 1992, ten months after Roth, the legislature enacted section 6111.2 of the Decedents, Estates and Fiduciaries Code. 20 Pa.C.S.A. § 6111.2. It provides:
      § 6111.2. Effect of divorce on designation of beneficiaries
      If a person domiciled in this Commonwealth at the time of his death is divorced from the bonds of matrimony after designating his spouse as beneficiary of a life insurance policy, annuity contract, pension or profit-sharing plan or other contractual arrangement providing for payments to his spouse, any designation in favor of his former spouse which was revocable by him after the divorce shall become ineffective for all purposes unless it appears from the wording of the designation or from either a court order or a written contract between the person and his spouse that the designation was intended to survive the divorce. Unless restrained by court order, no insurance company, pension or profit-sharing plan trustee or other obligor shall be liable for making payments to a former spouse which would have been proper in the absence of this section. Any former spouse to whom payment is made shall be answerable to anyone prejudiced by the payment.
      20 Pa.C.S.A. § 6111.2 (emphasis added). This law, however, is not retroactive and applies only to the estates of decedents dying on or after December 16, 1992. Act 1992, Dec. 16, P.L. 1163, No. 152, § 27(d). The decedent in this case died on August 19, 1990, before the effective date of the statute.


author: TAMILIA, Judge:

text:
    659 A.2d 1052
    HUNTINGDON FINANCE CORP. (Successor to Huntingdon, Inc.), Appellant, v. NEWTOWN ARTESIAN WATER COMPANY.
    Superior Court of Pennsylvania.
    Argued April 26, 1995.
    Filed June 13, 1995.

      Steven H. Sailer, Newtown, for appellant.
    Stuart Wilder, Doylestown, for appellee.
    Before TAMILIA, SAYLOR and HOFFMAN, JJ.
   TAMILIA, Judge:

Huntingdon Finance Corporation takes this appeal from the January 25, 1995 judgment entered in its favor in the amount of $1,124.63 following a bench trial which denied its claim for $20,367.19 as total damages for a breach of contract. The underlying facts in this case are not in dispute. Summarily, in May 1978, the parties entered into an agreement whereby appellant deposited $203,454.61 with appellee/Newtown Artesian Water Company who thereafter installed water mains and other necessary facilities within the residential subdivision being developed by appellant. A detailed formula in the agreement required appellee to make periodic payments/refunds to appellant. Pursuant to this formula, payments came due periodically from 1984 through 1988, as each home was connected; however, appellant did not make any requests for its payments, and appellee did not pay any deposit money to appellee until December 28, 1990. At that time, appellee tendered to appellant a check for $77,486.82, which covered all payments appellee owed.

On May 8, 1992, appellant instituted the present complaint seeking to recover the interest that accrued after the refunds became due because the refunds were not paid with “reasonable promptness” as required in the agreement. Essentially, appellant sought interest on each refund from the time such refund was due through the present. A trial commenced on February 28,1994 following which the court held the four-year statute of limitations for contracts precluded any claims for interest that accrued prior to May 8, 1988. Consequently, the court denied appellant’s request for payment of $20,367.19 and awarded it $1,124.63 for interest that accrued on or after May 8, 1988.

On appeal to this Court, appellant argues, when the refund payments were not made by appellee pursuant to the agreement, interest began to accrue on the money at the legal rate as a matter of law. Appellee’s payment on December 28, 1990 of the exact amount of principal owed appellant was a clear, distinct and unequivocál acknowledgement of its debt to appellant as an existing obligation. Accordingly, appellee’s acknowledgement of its principal debt owed under the agreement constitutes an acknowledgement of the corresponding debt on the interest, which is part and parcel of the principal, thereby tolling the statute of limitations and reviving appellee’s debt on the interest accruing prior to May 8, 1988. Basically, appellant contends although there are two components to the debt, principal and interest, there was only one debt.

Pursuant to the “acknowledgement doctrine,” a statute of limitations may be tolled or its bar removed by a promise to pay the debt.

A clear, distinct and unequivocal acknowledgement of a debt as an existing obligation, such as is consistent with a promise to pay, is sufficient to toll the statute. There must, however, be no uncertainty either in the acknowledgement or in the identification of the debt; and the acknowledgement must be plainly referable to the very debt upon which the action is based; and also must be consistent with a promise to pay on demand and not accompanied by other expressions indicating a mere willingness to pay at a future time. A simple declaration of an intention to discharge an obligation is not the equivalent of a promise to pay, but is more in the nature of a desire to do so, from which there is no implication of a promise.

Gurenlian v. Gurenlian, 407 Pa.Super. 102, 114-15, 595 A.2d 145, 151 (1991), quoting Maniatakis’ Estate, 258 Pa. 11, 101 A. 920 (1917). In light of this strict requirement, appellee unquestionably acknowledged its obligation with respect to the principal of the debt. There can be no more clear and unequivocal acknowledgement of debt than actual payment, thus removing the statute of limitations with respect to the principal. However, we agree with the trial court this acknowledgement does not extend to the corresponding interest. Appellant does not cite to any place in the record where appellee acknowledged a duty to pay the contested interest. Appellee’s payment was the exact amount of principal owed, and we find it difficult to treat it as a part payment, as appellant suggests. Part payments, in order to toll the statute of limitations, “must constitute a constructive acknowledgement of the debt from which a promise to pay the balance may be inferred.” City of Philadelphia v. Holmes Electric Protective Co. of Philadelphia, 335 Pa. 273, 280, 6 A.2d 884, 888 (1939). Appellee’s payment of principal cannot be construed as a promise to also pay the interest when appellee never acknowledged such a duty. As the trial court found:

To the best of our recollection, the issue whether defendant owed interest was in dispute both prior to and at the time that defendant tendered a check for the principal due. Indeed, defendant vigorously litigated any duty to pay any interest in the underlying action.

(Slip Op., Biester, J., 11/1/94, p. 5.) Accordingly, the statute of limitations bars appellant’s claim for interest to all quarterly refunds calculated prior to May 8, 1995.

Moreover, we find appellant’s position to be in contravention of public policy. The acknowledgement doctrine serves a very useful purpose to both parties in that the creditor receives payment on a debt that would otherwise be unenforceable and the debtor satisfies a moral obligation to make payments pursuant to a contract where no legal obligation exists, thereby bolstering the credibility of its business. To accept appellant’s position, debtors would be discouraged from acknowledging debts because of the corresponding interest payments, which in some instances could exceed the principal. The four-year statute of limitation serves to protect individuals from suffering the continuing anxiety over the possibility of the commencement of an action against them in the future. Because this acknowledgement doctrine removes the protection of the statute of limitations, the acknowledgement must be patently clear and distinct and free from ambiguity.

For the foregoing reasons, we find appellant’s argument without merit and affirm the January 25, 1995 judgment entered by the trial court.

Judgment affirmed.

      . The incremental refunds were calculated quarterly, with the first due March 31, 1984, and the last due September 30, 1988. These quarterly sums were computed by appellee and recorded on a journal which was admitted into evidence.

      . Neither party disputes the fact this amount represented a refund equal to the principal debt owed by appellee to appellant without interest.

      . 42 Pa.C.S. § 5525(1).


author: OLSZEWSKI, Judge:

text:
    660 A.2d 51
    COMMONWEALTH of Pennsylvania, v. Mark A. HERRICK, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Jan. 26, 1995.
    Filed April 25, 1995.

      James A. Zurick, Shamokin, for appellant.
    Gregory A. Stuck, Asst. Dist. Atty., Sunbury, for Com., appellee.
    Before WIEAND, OLSZEWSKI and HOFFMAN, JJ.
   OLSZEWSKI, Judge:

On January 22, 1992, James Kerstetter, a police informant, went on a “buy and bust” operation for the Northumberland Police Department. He was strip-searched, provided with $180.00, and sent to the home of appellant, Mark Herrick. He came out of the house approximately ten minutes later with two one-gram bags of cocaine. Kerstetter later testified that he bought the drugs from Robert Sheets while sitting at appellant’s kitchen table. N.T. 5/21/98 at 18, 20. Appellant was also sitting at the table the entire time. Afterwards, both appellant and Sheets telephoned Kerstetter, asking him if he wanted to purchase more drugs. Id. at 21. Kerstetter went through the same routine the next day, this time exchanging $270.00 of Northumberland County funds for three and one-half grams of cocaine.

Appellant was convicted of two counts of conspiracy to deliver a controlled substance for which he was sentenced to 24-to-60 months incarceration on one count and 6-to-36 months incarceration on the other, to be served consecutively. He now raises the following three issues on appeal: The evidence was insufficient to find him guilty of conspiracy beyond a reasonable doubt; the Commonwealth did not. sustain its burden to prove beyond a reasonable doubt that he entered into more than one conspiracy; and the trial court impermissibly abrogated his right to confront witnesses by denying him access to Kerstetter’s pre-sentence report for discovery and/or impeachment purposes.

I.

In reviewing sufficiency of the evidence claims, our standard of review is well settled:

[W]e must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth, as verdict winner. The test is whether the evidence, thus viewed, is sufficient to prove guilt beyond a reasonable doubt, [citation omitted]. The credibility of witnesses and the weight to be accorded the evidence are matters within the province of the trier of fact, the fact finder is free to believe all, some or none of the evidence, (citation omitted).

Commonwealth v. Hill, 427 Pa.Super. 440, 442, 629 A.2d 949, 950 (1993) (quoting Commonwealth v. Taylor, 324 Pa.Super. 420, 424-425, 471 A.2d 1228, 1229-1230 (1984)), allocatur denied, 538 Pa. 609, 645 A.2d 1313 (1994); see also Commonwealth v. Thompson, 538 Pa. 297, 648 A.2d 315 (1994); Commonwealth v. Lanager, 360 Pa.Super. 578, 521 A.2d 53 (1987). Appellant argues that Kerstetter’s testimony was incredible. Under this standard of review, however, we will not revisit the trier of fact’s credibility determinations. Commonwealth v. Rhone, 422 Pa.Super. 521, 619 A.2d 1080, allocatur denied, 534 Pa. 653, 627 A.2d 731 (1993).

Appellant also claims that he was nothing more than a bystander to the transaction between Sheets and Kerstetter. We agree that no bright-line test exists for establishing a case of conspiratorial agreement. Commonwealth v. Mercado, 420 Pa.Super. 588, 595, 617 A.2d 342, 346 (1992) (per Hoffman, J., with one judge concurring in the result and one judge dissenting). Reading the evidence and all its reasonable inferences in the light most favorable to the Commonwealth, however, we find that appellant was a conspirator in the sale of the cocaine.

“The essence of a criminal conspiracy is the agreement to perform an unlawful act.” Commonwealth v. Eddowes, 397 Pa.Super. 551, 558, 580 A.2d 769, 773 (1990) (citations omitted), allocatur denied, 529 Pa. 631, 600 A.2d 951 (1991). Here, appellant knew Sheets, knew the crime was being committed, and was immediately present during its commission, which took place in his own home. Under such circumstances, the fact finder was free to infer that a conspiracy had been committed. Commonwealth v. Azim, 313 Pa.Super. 310, 459 A.2d 1244 (1983). “By its very nature, the crime of conspiracy is frequently not susceptible to proof except by circumstantial evidence.” Id. at 314, 459 A.2d at 1246 (quoting Commonwealth v. Volk, 298 Pa.Super. 294, 300, 444 A.2d 1182, 1185 (1982) (citations omitted)).

II.

Appellant further maintains that the evidence could not support two counts of conspiracy, as the two sales to Kerstetter were part of only one conspiracy with multiple criminal objectives. Appellant’s brief at 10-11. In support, appellant cites to 18 Pa.C.S.A. § 903(c) and Commonwealth v. Lore, 338 Pa.Super. 42, 487 A.2d 841 (1984). In Lore, appellant’s boyfriend shot and killed John McNulty. Appellant and two friends assisted the shooter in concealing and/or destroying all evidence of the murder, including the corpse. To this end, the conspirators dismembered the body and carried the parts in trash bags to the Susquehanna River, where they disposed of the remains. We held in Lore that both the conspiracy to abuse a corpse and the conspiracy to hinder apprehension or prosecution were part of one common plan to dispose of the evidence in order to achieve the conspirator’s goal of avoiding arrest. Id. at 66-69, 487 A.2d at 854-855.

In support of our holding in Lore, we stated the following principle:

A single, continuing conspiracy is demonstrated where the evidence proves that the essential feature of the existing conspiracy was a common plan or scheme to achieve a common, single, comprehensive goal.... A single, continuing conspiracy may contemplate a series of offenses, or be comprised of a series of steps in the formation of a larger, general conspiracy----
Therefore, where the evidence at trial is sufficient for the jury to infer that the essential features of the existing conspiracy were a common plan or scheme to achieve a common, single, comprehensive goal or end, then the conclusion that the conspiracy was a single, continuing conspiracy is justified.

Id. at 68, 487 A.2d at 855 (citations omitted) (quoting United States v. Continental Group, Inc., 456 F.Supp. 704, 716 (E.D.Pa.1978), aff'd, 603 F.2d 444 (3rd Cir.1979), cert. denied, 444 U.S. 1032, 100 S.Ct. 703, 62 L.Ed.2d 668 (1980)). Each of the acts committed by the defendant in Lore was aimed at destroying the victim’s corpse to avoid detection. There was no point to abusing McNulty’s body save for destroying the evidence of his murder. The conspirators, for instance, would have gained nothing, nor furthered their plan, if they dismembered the body only to leave it in the home of one of the conspirators.

In Commonwealth v. Savage we embraced the following multifactor test for distinguishing multiple conspiracies from single conspiracies. 388 Pa.Super. 561, 566 A.2d 272 (1989).

[W]e ... find the multifactor totality of the circumstances analysis embraced by the majority of federal circuit courts for distinguishing single from multiple conspiracies to be a generally appropriate approach____
The factors most commonly considered in a totality of the circumstances analysis ... are: the number of overt acts in common; the overlap in personnel; the time period during which the alleged acts took place; the similarity in methods of operation; the location in which the alleged acts took place; the extent to which the purported conspiracies share a common objective; and, the degree to which interdependence is needed for the overall operation to succeed.

Id. at 575, 566 A.2d at 278 (citations omitted). Furthermore, “no one factor or combination of factors is necessarily dispositive.” Id. at 575, 566 A.2d at 279.

In the case sub judice, there were two drug transactions, both involving the same people, the same location, held under similar circumstances, committed within one day of each other. Like the first issue raised by appellant, this one also addresses the sufficiency of the evidence. The record does not show, however, that appellant and Sheets shared a common objective, or that this was part of a common plan or scheme, other than a general purpose to make money illicitly. If, for instance, appellant and Sheets expressly told Kerstetter to come back the next day to pick up some more drugs, we might agree that there was but one conspiracy. Neither illegal transaction with Kerstetter, however, was necessarily intertwined with the other; both were independent phenomena. Unlike the situation in Lore, where in order to destroy the evidence McNulty’s corpse had to be abused, here the execution of one drug transaction was not necessary for the other one to succeed. Where the success of one crime is not dependent upon another, the conspiracy to commit both are separate and distinct.

' Viewing the evidence in the light most favorable to the Commonwealth, we cannot say that as a matter of law two distinct conspiracies did not exist. Appellant focuses on the fact that Kerstetter believed that he would probably be back in the near future to purchase more cocaine. What the police and their informant believed is beside the point, however. The conspiracies existed between appellant and Sheets, not among appellant, Sheets, and Kerstetter.

“Just as a single entrepreneur may enter into several separate yet similar joint business ventures with the same or different partners or investors at the same time, criminals in general and drag traffickers in particular may enter into more than one criminal conspiracy involving similar crimes at the same time, even in the same area.” Savage, 388 Pa.Super. at 572, 566 A.2d at 277. Apparently, Sheets and appellant created a corrupt partnership. The creation of a corrupt business venture, however, is distinguishable from a conspiracy to commit a specific crime. Murder, Incorporated, for instance, was one venture involved in many conspiracies. While dissimilar criminal acts may constitute one conspiracy, here similar crimes were the result of different and distinct conspiracies.

III.

Appellant next argues that it was reversible error for the trial court to deny him access to Kerstetter’s pre-sentence report. At the time of appellant’s trial, Kerstetter was imprisoned at Camp Hill for committing forgery. N.T. 5/21/93. Kerstetter admitted that he had also been arrested for possession with intent to deliver marihuana, criminal mischief, and disorderly conduct. Id. at 13-14, 28. Appellant maintains that part of his “defense strategy was to prove a history of drug abuse and drug dependency on the part of Mr. Kerstetter.” Appellant’s brief at 12. Appellant was looking to substantiate a theory that Kerstetter had access to cocaine, and at some time prior to the controlled buys had secreted cocaine in appellant’s house. Id. In order to further investigate this theory, and possibly impeach Kerstetter, the Commonwealth’s key witness, appellant subpoenaed the Northumberland County chief probation officer for Kerstetter’s pre-sentence report.

A.

Appellant acknowledges that access to pre-sentence reports is limited under Rule 1404(a) of the Pennsylvania Rules of Criminal Procedure, which states that “[a]ll pre-sentence reports and related psychiatric and psychological reports shall be confidential, and not of public record.” Pa.R.Crim.P. 1404(a), 42 Pa.C.S.A. He argues, however, that this privilege of confidentiality must yield in the face of his rights under both the Federal and Pennsylvania Constitutions to confront his accusers. In support of his claim under the Federal Constitution, appellant cites to Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); and Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (hereinafter Davis). In arguing that his access to Kerstetter’s pre-sentence report is also guaranteed under the Commonwealth’s Constitution, appellant cites to Commonwealth v. Carter, 427 Pa. 53, 233 A.2d 284 (1967); Commonwealth v. Davis, 318 Pa.Super. 507, 465 A.2d 669 (1983) (hereinafter Commonwealth v. Davis); Commonwealth v. Bradshaw, 238 Pa.Super. 22, 364 A2d 702 (1975); and Commonwealth v. Pritchett, 225 Pa.Super. 401, 312 A.2d 434 (1973).

While neither Chambers nor Davis specifically addresses the confidentiality of pre-sentence reports, both are concerned with a defendant’s right of confrontation. In Chambers, the defendant, Leon Chambers, was accused of killing a Mississippi police officer during a riot. After his arrest, a friend of Chambers’, Gable McDonald, admitted in a transcribed, witnessed, and signed confession to murdering the officer. McDonald later repudiated his confession. Chambers called McDonald to testify. After the State’s 'cross-examination of McDonald, in which he once again repudiated this confession, Chambers’ motion to cross-examine McDonald as an adverse witness was denied. The Supreme Court held that Mississippi’s “voucher” rule denied Chambers his Constitutional right to confront McDonald. Chambers, 410 U.S. at 295, 93 S.Ct. at 1045-46, 35 L.Ed.2d at 308-09. The Court was clear, however, in pointing out that this right is not absolute, and may give way to “other legitimate interests.” Id. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309 (citation omitted). Instead, the Court simply rejected Mississippi’s contention that because McDonald was not a witness “ ‘against’ an accused,” the Confrontation Clause was inapplicable in this instance. Id. at 297, 93 S.Ct. at 1047, 35 L.Ed.2d at 310 (citations omitted) (emphasis supplied).

In Davis, the defendant wanted to impeach a prosecution witness, Richard Green, with Green’s juvenile record. The theory of the defense was that because Green was himself on probation for burglary at the time of the crime, he might have prematurely cooperated with the police and prosecution out of fear of forfeiting his own freedom. Davis, 415 U.S. at 311, 94 S.Ct. at 1107-08, 39 L.Ed.2d at 351. Before Green’s testimony, a protective order was granted preventing any reference to Green’s juvenile record by the defense on cross-examination. Id. at 310-311, 94 S.Ct. at 1107-08, 39 L.Ed.2d at 350-351. On appeal, the Supreme Court stated that the defense was denied the opportunity to effectively impeach Green’s credibility based upon his possible bias. Id. at 318, 94 S.Ct. at 1111, 39 L.Ed.2d at 355. Defendant “was thus denied the right of effective cross-examination which ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Brookhart v. Janis, 384 U.S. 1, 3, 86 S.Ct. 1245, 1246, 16 L.Ed.2d 314 (1966). “Smith v. Illinois, 390 U.S. 129, 131, 19 L.Ed.2d 956, 88 S.Ct. 748 (1968).” Id. While both Chambers and Davis address the right to confront a witness on the stand with information already known to the defense, “nothing in the opinion indicated that an infringement on the right to cross-examination could occur only in that context.” Pennsylvania v. Ritchie, 480 U.S. 39, 70, 107 S.Ct. 989, 1008, 94 L.Ed.2d 40, 66 (1987) (Brennan, J., dissenting) (plurality opinion) (emphasis supplied).

Carter, Commonwealth v. Davis, Pritchett, and Bradshaw, supra, 238 Pa.Super. 22, 364 A.2d 702, address the issue of mandatory disclosure of a witness’s identity. None of the four eases cited by appellant mention a defendant’s right to confront witnesses under the Pennsylvania Constitution. Indeed, these cases did not even raise a federal constitutional issue. Rather, their holdings were based upon a generic appeal to “the proper role of the prosecution in criminal litigation and of the principles of fair trial.” Carter, 427 Pa. at 55, 233 A.2d at 285 (citations omitted). These cases afforded to the defendant a pre-trial right to discover the identity of unnamed informants, based upon “the fundamental requirements of fairness” and a balancing of “the public interest in protecting the flow of information against the individual’s right to prepare his defense.” Commonwealth v. Davis, at 513, 465 A.2d at 671-72 (quoting Roviaro v. United States, 353 U.S. 53, 60-2, 77 S.Ct. 623, 628-29, 1 L.Ed.2d 639, 645-46 (1957) (citation omitted)).

Appellant is correct when he argues that Commonwealth v. Davis, Carter, Pritchett, and Bradshaw, supra, require that a defendant first espouse a defense theory which would plausibly be aided by the identity of an informant, before being furnished such information during pre-trial discovery. It is incorrect, however, to assert that these cases stand for the proposition that “[t]he Pennsylvania Constitution also requires disclosure of the Pre-Sentence Report in certain circumstances.” Appellant’s brief at 14. Each interpreted the applicability of Roviaro v. United States, supra, to Commonwealth criminal procedure. Roviaro, however, “had been decided on federal law, rather than on constitutional grounds.” Commonwealth v. Davis, 318 Pa.Super. at 513 n. 1, 465 A.2d at 671 n. 1.

In Commonwealth v. Edmunds, our Supreme .Court set forth a minimum of four factors which should be briefed and analyzed by litigants whose arguments implicate a provision of the Pennsylvania Constitution. 526 Pa. 374, 586 A.2d 887 (1991). They are:

1) text of the Pennsylvania constitutional provision;
2) history of the provision, including Pennsylvania case-law;
3) related case-law from other states;
4) policy considerations, including unique issues of state and local concern, and applicability within modern Pennsylvania jurisprudence.

Id. at Pa. 389, 586 A.2d at 895. Appellant has failed to include any of the above. His argument, that denying him a copy of Kerstetter’s pre-sentence report violated the confrontation clause of the Pennsylvania Constitution, is no more than a bare assertion. Accordingly, this argument is waived. See, e.g., Commonwealth v. Melson, 432 Pa.Super. 1, 25 n. 7, 637 A.2d 633, 645 n. 7 (1994) (stating that failure to develop an argument constitutes waiver of claim), allocatur denied, 538 Pa. 633, 647 A.2d 509 (1994); see also Commonwealth v. Santiago, 405 Pa.Super. 56, 84 n. 24, 591 A.2d 1095, 1109 n. 24 (1991) (en banc) (holding constitutional questions based on the Confrontation Clause waived when not properly advanced), allocatur denied, 529 Pa. 633, 600 A.2d 953 (1991); Commonwealth v. Sanford, 299 Pa.Super. 64, 65, 445 A.2d 149, 150 (1982) (“We decline to become appellant’s counsel. When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof.” (citations omitted)). Accordingly, we only address appellant’s claim that denying him access to Kerstetters’ pre-sentence report violated the Federal Constitution.

B.

In the Commonwealth, this is a case of first impression. In United States v. Figurski, however, the United States Court of Appeals for the Fourth Circuit held that a defendant had no absolute right of access to a federal pre-sentence report. 545 F.2d 389 (4th Cir.1976). There the federal court was concerned with the disclosure of the contents of pre-sentence reports as governed by Rule 32(c) of the Federal Rules of Civil Procedure and made applicable to reports made by the Bureau of Prisons under 18 U.S.C. Section 4208. Id. at 390. While the rule was silent as to disclosure of the report to third parties, a three-judge panel of the Fourth Circuit agreed that information should be disclosed to parties other than the defendant if “required to meet the ends of justice.” Id. (quoting Hancock Brothers, Inc. v. Jones, 293 F.Supp. 1229, 1233 (N.D.Cal., 1968)).

This meant that pertinent sections of a pre-sentence report could be made available to third parties if the additional information it would provide would create reasonable doubt in the verdict that otherwise did not exist. Figurski 545 F.2d at 391 (using the same standard for disclosure as is used when deciding to grant a new trial based upon after-discovered evidence, as stated in United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342, 354 (1976)). The court held that “when requested to exhibit such a report, the district court should examine it in camera and disclose only those portions, if less than all, of the report which meet the [Agurs] test we prescribe.” Figurski 545 F.2d at 392.

Other federal courts have also held that in the absence of a specific prohibition regarding release to third parties in Rule 32(c), the need to keep the reports confidential has to be balanced with the desirability of disclosure. See United States v. Charmer Industries, 711 F.2d 1164, 1173 (2nd Cir.1983) (reviewing decisions finding disclosure of pre-sentence reports to third parties unwarranted). But see, e.g., United States v. Dingle, 546 F.2d 1378 (10th Cir.1976) (flatly prohibiting disclosure to the prosecution in third-party trials). While the controlling procedural rule in these cases was silent about a report’s disclosure to third parties, Figurski 545 F.2d at 391, in the case sub judice, Rule 1404 specifically requires confidentiality. Pa.R.Crim.P. 1404, 42 Pa.C.S.A. This privilege is not absolute, however. Among those who might legitimately have access to a pre-sentence report are the sentencing judge, an examining professional, attorneys for the Commonwealth and the defendant, correctional institutions, and departments of probation or parole both supervising the defendant and those preparing a pre-sentence investigation of the defendant. Id. It would seem given that the Commonwealth’s presentence reports are at all times “confidential and not of public record,” id, they would enjoy at minimum the same degree of protection as that afforded to federal pre-sentence reports in Figurski. Because these cases cannot serve as precedent, however, we need to analyze the requirements and restraints of the Sixth Amendment on legislatively privileged materials, before we can decide whether or not presentence reports in Pennsylvania enjoy a greater, similar, or lesser degree of confidentiality than their federal counterparts.

C.

We begin by noting that “rules excluding evidence cannot be mechanistically applied to abridge a defendant’s right of confrontation by denying admission of highly reliable and relevant evidence critical to his defense.” Commonwealth v. Spiewak, 533 Pa. 1, 11, 617 A.2d 696, 701 (1992) (citation omitted). Rules of evidence are not phlegmatic axioms automatically applied to discomfit justice. See Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 2711, 97 L.Ed.2d 37, 48 (1987).

“[T]he Confrontation Clause has as a basic purpose the promotion of the ‘integrity of the fact finding process.’ ” White v. Illinois, 502 U.S. 346, 356-57, 112 S.Ct. 736, 743, 116 L.Ed.2d 848, 860 (1992) (quoting Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 2802-03, 101 L.Ed.2d 857, 866 (1988) (citation omitted)). That the guilty shall not go free nor the innocent be imprisoned, it exists to provide the trier of fact sufficient information in order to divine the truth. Commonwealth v. Wall, 413 Pa.Super. 599, 611-13, 606 A.2d 449, 456 (1992), allocatur denied, 532 Pa. 645, 614 A.2d 1142 (1992). Because it aims to secure a fair trial, it is essential for the protection of life and liberty. Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923, 926-27 (1965); see also United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039, 1064 (1974) (“The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.”).

This does not mean that the Confrontation Clause, when encountering privileged confidential materials, is a like a scythe that indiscriminately cuts down both the wheat and the chaff. “The policy behind the confrontation clause must give way to the public’s interest in effective law enforcement, the probative necessities of particular cases, and other policy considerations.” Commonwealth v. Haber, 351 Pa.Super. 79, 97, 505 A.2d 273, 283 (1986) (Olszewski, J., dissenting) (citation omitted). The right of confrontation “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Chambers, 410 U.S. at 295, 93 S.Ct. at 1046, 35 L.Ed.2d at 309 (citation omitted); see also Rock, 483 U.S. at 55, 107 S.Ct. at 2711, 97 L.Ed.2d at 49 (1987); Wall, 413 Pa.Super. at 611-15, 606 A.2d at 456-7. “While the rights provided by the Confrontation Clause are fundamental rights, guaranteed by both the federal and state constitutions, they are not absolute and ‘must occasionally give way to considerations of public policy and the necessities of the case.’” Commonwealth v. Crosland, 397 Pa.Super. 622, 625, 580 A.2d 804, 806 (1990) (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 340, 39 L.Ed. 409 (1895)). “The state court is free to develop rules of evidence which may, on their face, ‘conflict with the confrontation clause, provided we closely examine the rules and determine that the integrity of the factfinding process is not infringed.’ ” Commonwealth v. Franklin, 397 Pa.Super. 265, 281, 580 A.2d 25, 33 (1990) (quoting Commonwealth v. Kravontka, 384 Pa.Super. 346, 351-52, 558 A.2d 865, 868 (1989) which cited United States Supreme Court precedent), allocatur denied, 527 Pa. 641, 593 A.2d 415 (1991). We are constantly mindful, however, that “[w]hatever their origins, these exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Nixon, 418 U.S. at 710, 94 S.Ct. at 3108, 41 L.Ed.2d at 1065 (footnote omitted).

The rule enunciated in Davis, supra, 318 Pa.Super. 507, 465 A.2d 669, making a witness’s juvenile record accessible to the defendant when materially exculpatory, specifically addressed whether or not defense counsel could use privileged materials to impeach a witness on the stand. Here, we first must determine if judicially privileged pre-sentence reports are immune from discovery by the defense.

The Confrontation Clause does not constitutionally guarantee access to pre-trial discovery. Commonwealth v. Carillion, 380 Pa.Super. 458, 466-68, 552 A.2d 279, 283 (1988). The right to confrontation is a trial right. Ritchie, 480 U.S. at 53-4, 107 S.Ct. at 999, 94 L.Ed.2d at 54. A defendant does not have a right to discover any and all material potentially useful for impeaching a witness. Id. “Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, that the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 19 (1985) (per curiam) (emphasis supplied) (citation omitted). Thus, “the Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose these [forgetfulness, confusion, or evasion] infirmities through cross-examination .... ” Id. at 22, 106 S.Ct. at 295, 88 L.Ed.2d at 21. Here, appellant was clearly able to impeach Kerstetter with his prior record, which included charges for drug possession. N.T. 5/21/93 at 28-9.

D.

While the Confrontation Clause does not attach, per se, to pre-trial discovery requests, we must also examine whether or not the withholding of the report was a violation of appellant’s right to due process. Kerstetter denied being addicted to cocaine. Id. at 35. Appellant’s theory is that Kerstetter had access to cocaine and, prior to the two controlled buys, hid some cocaine in appellant’s house, in effect “setting up” appellant. Appellant’s brief at 14. Thus, if Kerstetter’s presentence report indicated a history of cocaine use, that information could presumably have been used to impeach Kerstetter’s testimony as a fabrication. Most importantly, the court had access to this information when it was requested by appellant.

Due process demands that materially exculpatory evidence in the hands of a prosecutor be turned over to the defense. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Exculpatory evidence is evidence that is material to a determination of guilt or innocence or affects the credibility of key prosecution witnesses. Commonwealth v. Redmond, 395 Pa.Super. 286, 296-98, 577 A.2d 547, 552 (1990), allocatur granted, 526 Pa. 632, 584 A.2d 315 (1991), appeal dismissed, 528 Pa. 601, 600 A.2d 190 (1992); see also United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Merely collateral evidence is not materially exculpatory. Redmond, 395 Pa.Super. at 296-98, 577 A.2d at 552. Impeachment evidence, however, does fall within the Brady rule. Id. at 298, 577 A.2d at 553; see also Bagley, 473 U.S. at 676, 105 S.Ct. at 3380, 87 L.Ed.2d at 490. Moreover, evidence of fabrication is always exculpatory. Wall, 413 Pa.Super. at 619-620 n. 16, 606 A.2d at 460 n. 16.

Even if true, evidence that Kerstetter allegedly used and therefore had access to cocaine is far short of being proof that his accusations were fabricated. A pre-sentence report detailing Kerstetter’s cocaine abuse would, have called into question his denying ever having used cocaine. This issue, however, would have been collateral to appellant’s guilt or innocence. Moreover, since Kerstetter already admitted to having drug charges levied against him, evidence that he abused cocaine would have only served to attack his credibility on a collateral issue. Thus, we believe that the information allegedly contained within Kerstetter’s pre-sentence report would not have been materially exculpatory. Giving appellant the benefit of the doubt, however, we will analyze his due process right to Kerstetter’s pre-sentence report on the assumption that it could have contained evidence materially exculpatory under Brady.

While this information was not in the hands of the prosecutor in appellant’s case, the trial court did have access to the report. We have previously held, however, that Brady applies to exculpatory materials within the court’s possession. Santiago, 405 Pa.Super. at 92-94, 591 A.2d at 1114. “[T]he trial court’s obligation to disclose to the defense materially exculpatory information in its possession, like that of the prosecution, exists absent any request.” Id. at 97, 591 A.2d at 1116 (footnote omitted).

This right, however, does not mean that a defendant has unfettered access to files not in his possession. Ritchie, 480 U.S. at 59-60, 107 S.Ct. at 1003, 94 L.Ed.2d at 59. Nor can a defendant search untrammeled through Commonwealth files in order to argue the relevance of materials found therein. Id. “There is no general constitutional right to discovery in a criminal case, and Brady did not create one.... ” Id. (quoting Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 846, 51 L.Ed.2d 30, 43 (1977)).

In Commonwealth v. Eck, we outlined a schematic by which we could discern what level of access, if any, a defendant should be afforded when requesting confidentially privileged materials. 413 Pa.Super. 538, 605 A.2d 1248 (1992). Relying on United States Supreme Court precedent in Ritchie, supra; Pennsylvania Supreme Court’s holding in Commonwealth v. Wilson/Aultman, 529 Pa. 268, 602 A.2d 1290 (1992), cert. denied, 504 U.S. 977, 112 S.Ct. 2952, 119 L.Ed.2d 574 (1992); and our own holdings in Commonwealth v. Kennedy, 413 Pa.Super. 95, 604 A.2d 1036 (en banc), allocatur denied, 531 Pa. 638, 611 A.2d 711 (1992); and Commonwealth v. Kyle, 367 Pa.Super. 484, 533 A.2d 120 (1987), allocatur, denied, 518 Pa. 617, 541 A.2d 744 (1988), we stated:

First, a defendant’s right to access is dependant upon whether the information is protected by a statutory privilege and whether that privilege is absolute. Information which is protected by an absolute statutory privilege is not subject to disclosure and denial of access to a criminal defendant is required____
On the other hand, a privilege which is statutorily enacted, but which is subject to exceptions, is not absolute and access to a criminal defendant may be required.
* * * ^ ^ *
Finally, privileges which are not statutorily enacted, but rather are recognized by the common law, must yield to the constitutional rights of a criminal defendant.

Eck, 413 Pa.Super. at 546-47, 605 A.2d at 1252-53.

In the case sub judice, the privilege is enacted not by statute, but by a rule adopted by the supreme court. See supra n. 11. While such rules cannot abrogate or alter legislatively conferred substantive rights, Marquez v. Hahnemann Medical College and Hospital of Philadelphia, 56 Pa. Cmwlth. 188, 424 A.2d 975 (1981), they otherwise have the same effect as statutes. Cf. Dombrowski v. City of Philadelphia, 431 Pa. 199, 203 n. 4, 245 A.2d 238, 241 n. 4 (1968) (stating that rules of civil procedure have the same force of statutes). Accordingly, we analyze Rule 1404 as if it were statutorily enacted.

The privilege of confidentiality accorded pre-sentence reports in Rule 1404 is not absolute. As stated supra, Commonwealth prosecutors, defense counsels, the sentencing judge, and appropriate correctional, probation, and or parole agencies may have access to a pre-sentence report. Pa.R.Crim.P. 1404, 42 Pa.C.S.A. A pre-sentence report, therefore, does not enjoy the absolute privilege that would exist if the Commonwealth had indicated a compelling interest worthy of the protection of confidentiality paramount to the right of confrontation. See Wilson/Aultman, 529 Pa. at 280-82, 602 A.2d at 1297; see also Commonwealth v. Moore, 526 Pa. 152, 159, 584 A.2d 936, 940 (1991) (“[I]t should be readily apparent that the general powers of the courts do not include the power to order disclosure of materials that the legislature has explicitly directed be kept confidential.”)

We would not say, however, that the Commonwealth’s limited and purposeful access to Kerstetter’s pre-sentence report reduced its protection of confidentiality absolutely. When the privileged item is viewed by the Commonwealth, the confidentiality interest is diminished. It no longer enjoys the absolute privacy protection accorded it by statute, but now wears a privilege “more akin to one extant at common law, which our Supreme Court has held must yield to a defendant’s right of confrontation and compulsory process.” Commonwealth v. Davis, 437 Pa.Super. 471, 487, 650 A.2d 452, 460 (1994) (quoting Commonwealth v. Gibbs, 434 Pa.Super. 280, 287-88, 642 A.2d 1132, 1136 (1994) (citation omitted)). We must be careful to distinguish the Commonwealth as prosecutor in the Kerstetter case from the Commonwealth as prosecutor in appellant’s case. Because the Commonwealth had a right of access to the report in the former prosecution does not mean it equally enjoyed such access in the latter.

Here the privilege of confidentiality is subject to exceptions. We therefore need to balance the need for our courts to receive accurate and unconstrained information helpful to sentencing defendants appropriately, as well as Kerstetter’s privacy interest, with appellant’s constitutional right to confront witnesses. We believe that our analysis here is squarely guided by the Supreme Court’s holding in Ritchie. There, the defendant was charged with sexually abusing his twelve-year-old daughter. Defendant subpoenaed Child Welfare Services (CWS) in order to obtain any information that could have been favorable to his defense. We held that defendant’s constitutional rights could be guaranteed by a trial court’s in camera inspection of the CWS file, making available to defendant only verbatim (or equivalent) statements by the victim concerning the abuse. Commonwealth v. Ritchie, 324 Pa.Super. 557, 472 A.2d 220 (1984). Our Supreme Court reversed, holding that in this case “the Commonwealth’s interest in maintaining the confidentiality of [CWS] records may not override a defendant’s right to effectively confront and cross-examine the witness against him.” Commonwealth v. Ritchie, 509 Pa. 357, 367, 502 A.2d 148, 153 (1985). Accordingly, the Supreme Court remanded the case, instructing that defendant be allowed access to CWS files. Id.

On appeal, however, the United States Supreme Court reversed in part and remanded, holding that an in camera inspection by the court ensured the defendant a fair trial. Ritchie, 480 U.S. at 60, 107 S.Ct. at 1002-03, 94 L.Ed.2d at 59. In effect agreeing with our earlier decision, the High Court stated that “[although this rule denies Ritchie the benefits of an ‘advocate’s eye,’____ [t]o allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth’s compelling interest in protecting its child abuse information.” Id. The in camera review, therefore, was held to properly balance the defendant’s needs while protecting the confidentiality of others. Id. at 61, 107 S.Ct. at 1003, 94 L.Ed.2d at 60.

“[Ritchie ] rejected the notion adopted by this Commonwealth’s highest tribunal that the confrontation clause translated into a constitutionally compelled rule of pre-trial discovery.” Carillion, 380 Pa.Super. at 467, 552 A.2d at 283.

In other words, the Supreme Court rejected the notion embraced by the Pennsylvania Supreme Court that Ritchie’s right to evidence in the agency file pivotal to his defense could only be adequately safeguarded by his counsel. Instead, the United States Supreme Court confined disclosure to in camera review by the trial court, with the accúsed retaining the right to apply directly to the court for discovery of any specific information contained in the file and to argue its significance to his case.

Id. at 470, 552 A.2d at 284 (emphasis supplied).

We believe that an in camera inspection by the court equally protects any constitutional concerns appellant might have in this case, while at the same time ensuring the judicially mandated confidentiality of Kerstetter’s pre-sentence report. Perhaps the interests protected in the case sub judice are not as vulnerable or delicate as those in Ritchie. We recognize, however, that the Supreme Court has attempted to legitimately address the needs to fully apprise a sentencing court of a defendant’s background and profile in order to impose an appropriate sentence, while at the same time assuring that those involved in the process feel free to communicate to the court without inhibition. See Pa.R.Crim.P. 1404—Comment, 42 Pa.C.S.A. Such a review by the court would mean that withholding the report from appellant did not per se implicate the Sixth Amendment.

Because the trial court did have an in camera review of Kerstetter’s pre-sentence report, we ultimately find appellant’s right of confrontation was not violated by denying him direct access to the materials in question. In denying defense counsel’s request to view Kerstetter’s report, the Honorable Samuel C. Rank explained:

Well, on the record, the Defense Counsel has requested to subpoena the Pre-Sentence Report of James Kerstetter. Under Rule 1404, they are confidential records and there is only a certain limited exception and this is not one of them. And I’ll, therefore, deny the request. I might add, I have reviewed the Pre-Sentence Investigation and I didn’t really see anything that would be all that of interest. It has his prior record, the fact that he has used drugs, but no details.. It was just that.

N.T. 5/21/93 at 26 (emphasis added). The trial court’s review of the record conforms to the constitutional protections similar to those recommended in Ritchie and Figursk% supra.

IV.

Finally, we note that appellant was charged with restitution of $290.00 and $180.00. N.T. 3/8/94 at 8. This money was to reimburse the District Attorney’s office for the amount Kerstetter paid Sheets for the cocaine. While Kerstetter did spend $180.00 in one buy, he did not expend $290.00 the next day. He was given $290.00, but only spent $270.00, returning the unspent twenty dollars, with the drugs, to the Northumberland Police Department. N.T. 5/21/93 at 25. Accordingly, appellant’s sentence should be modified. See Commonwealth ex rel. Larsen v. Larsen, 211 Pa.Super. 30, 35-37, 234 A.2d 18, 21 (1967) (stating that an appellate court has the authority to amend a verdict to conform with the obvious intention of the trial court).

V.

In conclusion, we find that the evidence was sufficient to convict appellant of two counts of conspiracy to deliver a controlled substance. In addition, the in camera review of Kerstetter’s pre-sentence report protected appellant’s federally guaranteed right under the Sixth Amendment to confront witnesses, as well as his right to due process, while at the same time ensuring the confidentiality of the report as mandated by Rule 1404(a) of the Pennsylvania Rules of Criminal Procedure. The amount of restitution to be paid by appellant, however, is modified to accurately reflect the intent of the sentencing court.

Judgment of sentence affirmed as modified.

WIEAND, J., concurs in the result.

      . P.C.C. § 903, Act 64 § 13(A)(30).

      . § 903. Criminal conspiracy
      sH $ * * * *
      (c) Conspiracy with multiple criminal objectives. — If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

      . The acts of a killer such as Jeffrey Dahmer are distinguishable where the murderer dismembers the bodies of his victims for his own ghoulish gastronomic gratification. If Dahmer acted with another, they would probably have been guilty of conspiracy to abuse a corpse. If, later, they then disposed of the remains to avoid a police investigation, they would have been equally guilty of criminal conspiracy to hinder prosecution.

      . On the stand Kerstetter denied having used cocaine, but did admit to having been arrested on some “drug charges.” N.T. 5/21/93 at 14, 35.

      . This right is secured under the Sixth Amendment of the United States Constitution, which reads as follows:

        Amendment VI

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
      U.S. Const, amend. VI. This right is made available to the states through the Fourteenth Amendment. Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988); Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . This right is also secured by the confrontation clause, Article 1, Section 9, which states in part:
      Rights of accused in criminal prosecutions
      In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage....
      Pa. Const. Art. 1 § 9; see, e.g., Commonwealth v. Spiewak, 533 Pa. 1, 617 A.2d 696 (1992).

      . The trial court ruled that Chambers was precluded from impeaching his own witness under its "party witness” or "voucher” rule. Chambers, 410 U.S. at 294, 93 S.Ct. at 1045, 35 L.Ed.2d at 308. Chambers’ attempt to then have three friends testify that they heard McDonald confess at other times was thwarted, on the grounds that their testimony would have been hearsay. Id.

      . In doing so, the trial court relied on Alaska Rule of Children’s Procedure 23 and Alaska Stat. § 47.10.080(g) (1971).

      . “When the United States Court of Appeals for the Third Circuit has held certain practices or procedures to violate federal constitutional rights, its decision will be accepted and followed by the courts of this Commonwealth until the United States Supreme Court has spoken on the issue.” Schreiber v. Republic Intermodal Corp., 473 Pa. 614, 620 n. 5, 375 A.2d 1285, 1288 n. 5 (1977) (citations omitted). Even if the Third Circuit Court of Appeals were to speak to this issue, however, it would be addressing the impact of the Confrontation Clause on federal, and not Commonwealth, pre-sentence reports.

      . We have previously cited Figurski, with approval, for the proposition that a trial court may legitimately review material in camera to a priori determine its exculpatory value. Santiago, 405 Pa.Super. at 90, 591 A.2d at 1113. In that case, we held that basic due process requires a court to disclose to a defendant materially exculpatory evidence. Id. at 84, 591 A.2d at 1110.

      . Rule 1404, like all other Pennsylvania Rules of Criminal Procedure, was adopted by the Supreme Court in accordance with its power under the Pennsylvania Constitution, Article 5, section 10; and 42 Pa.C.S.A. section 1722.

      . CWS is now designated Children and Youth Services.

      . The Supreme Court in Ritchie reached only a plurality decision. Justice Blackmun, in a concurring opinion, disagreed with the Court’s opinion that the Confrontation Clause had no applicability to pre-trial discovery. Ritchie, 480 U.S. at 61, 107 S.Ct. at 1003, 94 L.Ed.2d at 60. He agreed with four other justices, however, that the in camera review of CWS records adequately addressed defendant’s Sixth Amendment rights. Id. at 65, 107 S.Ct. at 1005, 94 L.Ed.2d at 62. We have previously concluded that the analysis in Ritchie was "principled and persuasive,” indeed if not controlling. Kyle, 367 Pa.Super. at 491, 533 A.2d at 124; see also Commonwealth v. Lloyd, 523 Pa. 427, 567 A.2d 1357 (1989).

      . Rule 1404(b) of the Pennsylvania Rules of Criminal Procedure, regarding the disclosure of pre-sentence reports, states that “[i]f the defendant or the Commonwealth alleges any factual inaccuracy in a report under this rule, the sentencing judge shall, as to each inaccuracy found, order that the report be corrected accordingly.” 42 Pa. R.Crim.P. 1404(b). With this section, the judiciary “intended to insure that reports considered by the sentencing judge and disclosed after sentencing are factually accurate....” Id. at Comment. Nevertheless, we are concerned with the reliability of information found in presentence reports. See Charmer Industries, 711 F.2d at 1175. Inaccurate information in the report may not be called into question by defendant or Commonwealth. Id. ("[Njotwithstanding the goal of accuracy in presentence reports, there is no requirement that the defendant voice his objection to any statement with which he disagrees, and we assume that not all statements with which a defendant might take issue are actually challenged.”); cf. Commonwealth v. Doyle, 275 Pa.Super. 373, 381-82, 418 A.2d 1336, 1341 (1979) (“In the absence of objection by appellant, the sentencing judge was free to consider the pre-sentence report and the psychiatric reports.”)
      More importantly, information contained in the report may not meet the same standards of admissibility demanded of evidence introduced at trial. Commonwealth v. Shoemaker, 226 Pa.Super. 203, 211-13, 313 A.2d 342, 347 (1973), aff'd, 462 Pa. 342, 341 A.2d 111 (1975). Hearsay, as well as inaccurate and extraneous information, might find its way into the reports. See Charmer Industries, 711 F.2d at 1175. "No formal limitations inhibit the collection of information for such reports. The reports frequently contain hearsay and information not relevant to the crime charged.... [T]here may be no opportunity, even at a, hearing, for the defendant to confront the maker of the disputed hearsay statement----” Id. It is significant to note that recently, the Federal Court of Appeals for the Ninth Circuit refused to extend the holding of Chambers v. Mississippi, supra at 10, when the excluded evidence at issue lacks any significant indicia of reliability. United States v. Fowlie, 24 F.3d 1059 (9th Cir.1994), cert. denied,-U.S.-, 115 S.Ct. 742, 130 L.Ed.2d 643 (1995).


author: DEL SOLE, Judge:

text:
    660 A.2d 64
    Allen STERLING, Appellee, v. ST. MICHAEL’S SCHOOL FOR BOYS and John Doe a/k/a Paul Kanner, Appellant. Allen STERLING, Appellant, v. ST. MICHAEL’S SCHOOL FOR BOYS and Paul Kanner, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 31, 1995.
    Filed May 4, 1995.
    Reargument Denied July 14, 1995.

      Joseph E. Mariotti, Scranton, for St. Michael’s School and Kanner.
    Kenneth C. Citrino, Philadelphia, for Sterling.
    Before DEL SOLE, KELLY and BROSKY, JJ.
   DEL SOLE, Judge:

Appellants take this appeal from the Judgment of $66,000.00 awarded Appellee following a non-jury trial.

Appellee, Allen Sterling was placed in a group home operated by Appellant, St. Michael’s School. On July 14,1981 an employee of St. Michael’s threw a shoe at Sterling striking him in the right eye. Sterling, who complained of blurred vision was seen by a nurse the next day who referred him to a doctor. Sterling was taken to a physician the following day. While blood was seen in the eye, other tests came out negative and no treatment was recommended, although Sterling was advised to return for further observation until it was determined that the eye was clear. At the next exam swelling and fluid accumulation was noted and it was recommended that Sterling see a different physician, Dr. Jordan. Dr. Jordan saw Sterling on several occasions, however it was not until August 6, 1981, when the fluid in the eye cleared that the doctor was able to diagnose a “choreital macular tear.” Dr. Jordan opined that the injury was “irreparable,” and that Sterling would suffer from 20/200 vision in the eye which could not be adjusted with corrective lenses.

Sterling commenced an action on July 18, 1983 against St. Michael’s School for Boys and the person responsible for throwing the shoe. Through numerous motions and requests for relief, the defendants argued that Sterling’s action should be barred by the statute of limitations since it was commenced two years and three days after Sterling was struck by the shoe. The trial court noted that all parties agree that the applicable Statute of Limitations is two years, but the court denied the motions reasoning that Sterling did not “discover” his injury until August 6, 1981 when a diagnosis was made. The trial court concluded that “although there was a ‘touching’ on July 14, 1981, the damage from that touching did not become physically objective and ascertainable until August 6, 1981.”

It is established law that actions for personal injuries must be brought within two years. Aivazoglou v. Drever Furnaces, 418 Pa.Super. 111, 613 A.2d 595 (1992), 42 Pa.C.S.A. § 5524. Once this prescribed statutory period has expired a cause of action may not be brought. The “discovery rule” provides an exception to toll the running of the statute of limitations. It provides “that where the existence of the injury is not known to the complaining party and such knowledge cannot reasonable be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Hayward v. Medical Center, 530 Pa. 320, 325, 608 A.2d 1040 (1992). The rule was created to apply to those situations where an injured party, despite the exercise of reasonable diligence, in unable to know of the injury or its cause. Id., citing Pocono International Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983). The nature of the injury will typically determine whether the discovery rule is applicable. Thus it will only apply where the injury is the type which is not readily discernible. A. McD. v. Rosen, 423 Pa.Super. 304, 621 A.2d 128 (1993).

In this case we conclude the discovery rule has no application. Sterling knew he was injured when he was struck by the shoe. Sterling suffered pain and experienced blurred vision, which symptom he repeatedly reported at his examinations. Because it is the knowledge of an injury which causes the statute to begin, in this case the statute ran as of July 14th, the date when Sterling was struck. Although Sterling knew of his injury, the trial court centered its analysis on the fact that Sterling did not know the extent of his injury. However the fact that Sterling was not advised until some time later that a tear was causing him the blurred vision, does not justify tolling of the statute.

The seminal case of Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), first enunciated the “discovery rule” when considering a situation where a surgeon left a surgical sponge in the patient, who did not discover the sponge until nine years later. The court held that the statute does not run until the plaintiff did or reasonably could have discovered the injury. Levenson v. Souser, 384 Pa.Super. 132, 557 A.2d 1081 (1989). The court went on, however, to differentiate situations where persons are unable to know they are injured, from those situations where persons know they are injured, but they do not know the extent of their injury. The court stated:

It must be borne in mind that this is not a case where the act of negligence was known to the plaintiff but the extent of the damages which ensued therefrom was not ascertained until after the expiration of the statute of limitations. On the contrary, this is a case where the plaintiff did not know of the act (which eventuated in injury to him) at the time that act occurred.

Ayers v. Morgan, at 290, 154 A.2d at 792. (emphasis in original.) Thus, the law requires the statute of limitations to begin when a person knows or through the exercise of due diligence is able to ascertain that an injury has occurred. “A plaintiff need not know the precise extent of her injuries before the statutory period begins to run.” Bradley v. Ragheb, 429 Pa.Super. 616, 633 A.2d 192, 196 (1993).

Sterling knew he was injured on the day he was struck in the eye by a thrown shoe. The statute of limitations commenced on the day of his injury. The fact that the extent of his injury was not known at that time, and would not be discovered until weeks later, did not toll the running of the statute.

Because the suit in this case was not brought until after the expiration of the statute of limitations, Sterling had no right to maintain his action and the judgment entered in his favor must be vacated.

Judgment vacated. Case remanded for entry of Judgment in favor of Appellant. Jurisdiction relinquished.