author: CAVANAUGH, Judge.

text:
    606 A.2d 470
    Clara KELLY, Appellant, v. NATIONWIDE INSURANCE COMPANY.
    Superior Court of Pennsylvania.
    Argued Dec. 19, 1991.
    Filed April 2, 1992.

      Rose A. McGowan, Moscow, for appellant.
    Joseph A. Ramser, Scranton, for appellee.
    Before CAVANAUGH, FORD ELLIOTT and HOFFMAN, JJ.
   CAVANAUGH, Judge.

This is an appeal from the lower court’s May 9, 1991 order granting the motion of Nationwide Insurance Company (“appellee”) for judgment on the pleadings against Clara Kelly (“appellant”). Appellant’s Complaint sought to have the lower court declare that an automobile policy exclusion that prevented vehicles insured under the liability coverage of the policy from being considered as an underinsured vehicle violated public policy. We agree with the lower court that such a policy exclusion does not violate public policy. We affirm.

The facts are as follows. Both appellant and her husband, Edward J. Kelly, are named policyholders on a single Nationwide Automobile Insurance policy which covers two cars, a 1985 Chrysler and a 1979 Plymouth. On July 7, 1989, appellant, suffered a severe arm injury while a passenger in the Chrysler when her husband, the driver, lost control of it during a heavy rainstorm on Interstate Route 84 and crashed into a concrete structure. Subsequent to the accident, appellee has paid the appellant fifty thousand ($50,000) dollars, the maximum amount of liability coverage on the 1985 Chrysler.

After payment, appellant demanded from the appellee benefits under the underinsurance coverage of the same policy. Appellant asserted that while the liability limits on the accident vehicle (the Chrysler) had been recovered, underinsurance benefits were available from the appellee on the 1979 Plymouth (the non-accident vehicle). Nationwide rejected this demand, noting that its policy excluded from the definition of “underinsured motor vehicle” any vehicle insured under the liability coverage of the policy. Appellant filed a declaratory judgment action in the Court of Common Pleas, Lackawanna County, seeking an order that the exclusion contained in the policy is void against public policy and legislative intent. Appellee filed a motion for judgment on the pleadings. After the submission of briefs and oral argument, the lower court entered an order granting a judgment on the pleadings. This appeal followed.

A motion for judgment on the pleadings should be granted only where the pleadings demonstrate that no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1034; Giddings v. Tartler, 130 Pa.Cmwlth. 175, 177, 567 A.2d 766, 767 (1989). Thus, “[i]n reviewing a trial court’s decision to grant judgment on the pleadings, the scope of review of the appellate court is plenary; the reviewing court must determine if the action of the trial court was based on a clear error of law or whether there were facts disclosed by the pleadings which should properly go to the jury.” Vogel v. Berkley, 354 Pa.Super. 291, 296, 511 A.2d 878, 880 (1986), quoted in Keystone Automated Equip. v. Reliance, 369 Pa.Super. 472, 475, 535 A.2d 648, 649 (1988), alloc. den., 519 Pa. 654, 546 A.2d 59. An appellate court must accept as true all well-pleaded facts of the party against whom the motion is made, while considering against him only those facts which he specifically admits. Jones v. Travelers Ins. Co., 356 Pa.Super. 213, 217, 514 A.2d 576, 578 (1986); West Penn Administration, Inc. v. Pittsburgh National Bank, 289 Pa.Super. 460, 467, 433 A.2d 896, 900 (1981). Neither party can be deemed to have admitted either conclusions of law or unjustified inferences. Sinn v. Burd, 486 Pa. 146, 149, 404 A.2d 672, 674 (1979); Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578. Moreover, in conducting its inquiry, the court should confine itself to the pleadings themselves and any documents or exhibits properly attached to them. Jones, supra, 356 Pa.Superior Ct. at 217, 514 A.2d at 578; Gallo v. J. C. Penney Casualty Ins. Co., 328 Pa.Super. 267, 270, 476 A.2d 1322, 1324 (1984). It may not consider inadmissible evidence in determining a motion for judgment on the pleadings. 6 Pennsylvania Standard Practice 2d § 31:19 at 172. Only when the moving party’s case is clear and free from doubt such that a trial would prove fruitless will an appellate court affirm a motion for judgment on the pleadings. Jones, supra, 356 Pa.Super. at 217, 514 A.2d at 578; Gallo, supra, 328 Pa.Super. at 270, 476 A.2d at 1324.

Appellant asserts two arguments before this court: (1) the lower court erred in granting judgment on the pleadings where the law is unclear as to whether a single automobile insurance policy, issued to a husband and wife but covering two cars, can contain an exclusion which would prevent recovery of underinsurance benefits in the situation sub judice and (2) the lower court erred in granting judgment on the pleadings where material issues of fact existed which indicated that the appellant’s contractual relationship with appellee was that of a separate policyholder of the 1979 Plymouth. Both arguments are interrelated, and we address appellant’s second argument first as its resolution will facilitate our discussion of the first argument.

Preliminarily, we note that appellant accepts that she and her husband were named policyholders on a single policy of insurance. Her Complaint assumes this fact, and seeks a Declaratory Judgment that the exclusion in the policy which prevents her from receiving the underinsured motorist benefits on the 1979 Plymouth is void as against public policy. The appellant seems to be arguing that we should pierce or disregard the words of the contract as a matter of either contract law or public policy to get to the underlying nature of the bargain, which, she feels, is that she was for all practical purposes insured “on” the 1979 Plymouth.

We address first appellant’s claim that the trial court erred by granting judgment on the pleadings where material issues of fact existed as to whether appellant’s contractual relationship with the appellee is as a policyholder on the 1979 Plymouth in her own right. The thrust of appellant’s argument is that there was enough evidence to go to the finder of fact that the “real” nature of the contractual relation with the appellee is that she is the insured on the 1979 Plymouth and her husband separately is the insured on the 1984 Chrysler. The appellant makes much of the fact that the latest billing notice for the six month renewal premium reads as follows:

VEH/MAKE/YEAR VEH/MAKE/YEAR

1 PLYM 79 2 CHRY 85

LIMITS PREMIUM LIMITS PREMIUM

UNINSURED TORIST MO-$25,000 $18.90 $25,000 $18.90

BI $50,000 $50,000

PREMIUM IS

BASED ON -USE OF VEHICLE PLEASURE PLEASURE

-RATED DRIVER ADULT, FEMALE ADULT, MALE

Moreover, the appellant contends that the appellee has admitted in its Answer to averment six (6) of her Complaint that the appellant was the insured on the 1979 Plymouth.

The billing notice does not create an issue of fact as to the contractual relation of the parties. Appellant has not alleged that the billing notice was part of that policy, or that the contract is ambiguous. Rather, the whole tenor of appellant’s Complaint and argument has been that the contract does not adequately express the contractual relation between the parties. Consequently, the appellant must want us to consider the billing notice as extrinsic evidence as to the real meaning of the contract. “When the words of the contract are unequivocal, it speaks for itself and a meaning cannot be given to it other than that expressed, and there is no need to refer to extrinsic aids or evidence to determine the intentions of the parties.” Marcinak v. Southeastern Greene School Dist., 375 Pa.Super. 486, 544 A.2d 1025 (1988); Accord, East Crossroads Center, Inc. v. Mellon-Stuart Co., 416 Pa. 229, 230, 205 A.2d 865, 866 (1965). The appellant assumes as a given that the contract unequivocally states that appellant and her husband are policyholders on a single policy. Although her argument sounds in contract, appellant asks us to disregard the contract and discern the “real” or equitable relation of the parties as represented by the billing notice. This we cannot do, as we would be turning on its head contract analysis, which mandates that we will not consider extrinsic evidence where the contract is clear and unambiguous. As we may not consider inadmissible evidence in a motion for judgment on the pleadings, see supra, appellant’s argument fails.

Alternatively, even if we were to consider the billing notice as part of the contract despite appellant’s failure to allege it was part of the contract, we agree with the appellant that the billing notice speaks for itself: it explicitly states that the policyholder is “Edward J. & Clara Kelly.” See Exhibit “A” of Plaintiffs Complaint. We note that the “granting of judgment on the pleadings may be appropriate in cases that turn on the construction of a written agreement.” DiAndrea v. Reliance Savings and Loan Association, 310 Pa.Super. 537, 546, 456 A.2d 1066, 1070 (1983); Accord, Vogel, supra, 354 Pa.Super. at 296, 511 A.2d at 880. Even assuming that the billing notice can be considered part of the contract, we find that the billing notice does not create an ambiguity as to whether appellant is a policyholder in her own right. For the foregoing reasons, appellant’s contention is meritless.

We also find that appellant’s contention that appellee in its Answer admitted that appellant was the insured of the non-accident vehicle to be a meritless claim. Appellant contends that the appellee’s response in its Answer to the averments of paragraph (6) of appellant’s Complaint are an admission that she is the insured and primary driver of the non-accident vehicle. However, it is apparent that from the averments of paragraph (6) what appellee admitted to in its Answer was that appellant was insured under the policy and was listed as the primary driver of the 1979 Plymouth:

6. At all times relevant to this matter, Plaintiff was insured pursuant to a Nationwide Automobile Insurance policy number 58-B-872925 and was listed as the primary driver of a 1979 Plymouth with medical and work-loss benefits of $10,000.00 each, and underinsurance coverage limit of $25,000.00.

Appellant has made an unjustified inference from this averment, contorting the natural meaning of the words to support her position. Thus, we find this contention merit-less also. We agree with the trial court that appellant has presented no issue of fact that appellant is the policyholder “on” the 1979 Plymouth.

The tenor of appellant’s second argument is that the motion for judgment on the pleadings is not appropriate unless it is clear on the face of the pleadings that the law will not permit a recovery, Merrit v. Board of Education of School District of Philadelphia, 99 Pa.Cmwlth. 178, 513 A.2d 504 (1986), and since Pennsylvania case law has not had the opportunity to address the precise fact scenario before the court, the trial court erred in granting the motion for judgment on the pleadings. The appellant specifically argues that we have not yet addressed the following involved and nuanced scenario: whether public policy is violated where a policy exclusion bars an injured policyholder from collecting underinsured motorist benefits where (1) one policy is issued to two persons covering two vehicle, (2) the injured policyholder has collected the limits of liability coverage from the accident vehicle and is seeking underinsurance benefits from the second vehicle, and (3) the injured policyholder appears to be insured on the non-accident vehicle.

Once again, the gist of appellant’s argument is that we should penetrate the literal language of the policy which would bar recovery, because "in substantive terms [] her factual position is identical to that of a separate policyholder.” Appellant’s Brief at 19. However, as opposed to the appellant’s argument supra, the emphasis of this argument is that public policy rather than the contractual relation of the parties militates we find that the lower court erred. We disagree. Our examination of the law in this area indicates that the public policy behind the underinsurance provisions of the Motor Vehicle Financial Responsibility Act is not violated by the appellee’s policy exclusion.

The seminal case concerning a challenge that a policy exclusion violated the public policy behind underinsured motorist provisions in our Commonwealth is Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa.Super. 51, 535 A.2d 1145 (1988) (en banc), alloc, den., 520 Pa. 590, 551 A.2d 216. The Court en banc unanimously held that a passenger injured in a vehicle who recovered the liability limits of the driver’s policy could not receive underinsurance benefits under that same policy. Enroute to our holding, we set forth the purpose and principles behind underinsurance motorist statute:

The purpose of underinsurance motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence---- The language of the statute itself suggests that underinsurance motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. See 75 Pa.C.S.A. § 1731(c). Thus, the statute contemplated one policy applicable to the vehicle at fault in causing the injury to the claimant and which is the source of liability coverage (which is ultimately insufficient to fully compensate the victim), and a second policy, under which the injured claimant is either an insured or a covered person. It is the second policy which the statute contemplates as the source of underinsured motorist coverage, where the liability coverage provided by the first policy of insurance is insufficient to fully compensate the claimant for his injuries.

Id., 370 Pa.Superior Ct. at 58, 535 A.2d at 1149. The Court went on to declare that the family car exclusion in the policy did not violate public policy.

A panel of this Court next had occasion to address whether a policy exclusion violated the public policy behind the underinsurance provisions of the MVFRL in Newkirk v. United States Automobile Association, 388 Pa.Super. 54, 564 A.2d 1263 (1989). In Newkirk, the appellant was injured in a single vehicle automobile accident in which her husband was driving. She was offered the maximum amount of liability coverage provided under her husband’s policy, $15,000. The appellant rejected this offer, and attempted to attain the maximum amount of underinsurance coverage under the policy, $300,000. This was despite an explicit family car exclusion in his automobile insurance policy which stated:

[Njeither “uninsured motor vehicle” nor “underinsured motor vehicle” includes any vehicle ... [ojwned by or furnished or available for the regular use of you or any family member.

After summary judgment was granted in favor of the insurance company, we considered on appeal whether the policy’s family car exclusion violated public policy. We held that such a family car exclusion did not violate public policy, as “[wjhen the legislature created the underinsurance motorist coverage provisions of the MVFRL, they simply did not intend for an individual to recover third party liability benefits and first party underinsurance motorist benefits from the same automobile insurance policy.” Id., 388 Pa.Superior Ct. at 63, 564 A.2d at 1267. Citing Wolgemuth, the Court reasoned that the legislature enacted underinsurance motorist coverage to supplement an injured claimant’s recovery from a tortfeasor who purchased automobile insurance which was insufficient to cover the claimant’s damages. Id. Where a deficiency in the tortfeasor’s automobile insurance exists, the injured claimant can look to any underinsurance motorist coverage in his own policy. Id., 388 Pa.Superior Ct. at 64, 564 A.2d at 1268. Thus, the recovery of underinsured motorist coverage is dependent on two policies of insurance: the tortfeasor’s insurance policy and the injured claimant’s policy. Id. The Court stated that it could not agree with appellant because to do so would turn underinsurance coverage into additional liability coverage. Id. As the liability coverage in the policy for family members was limited to $15,000, agreeing with the appellant’s argument would entail the drastic result that she would have $300,000 of underinsured benefits to supplement the limited sum ($15,000) she was legitimately entitled to under the policy. Id.

The most recent consideration of the underinsurance provisions of the MVFRL by a panel of this Court is Marroquin v. Mutual Benefit Insurance Company, 404 Pa.Super. 444, 591 A.2d 290 (1991), which the plaintiff claims is factually analogous to the facts sub judice. In Marroquin, the plaintiff was insured as a family member under his parent’s insurance policy. He was struck by his brother’s car, which was covered under a separate policy of insurance. The plaintiff first recovered the liability limits under his brother’s policy, and then sought underinsured benefits under a separate policy issued to his parents. After the insurer rejected the claim on the basis of a family car exclusion in the parent’s policy, the plaintiff filed a declaratory judgment action. The Court held that the exclusion was invalid under Pennsylvania law. Id., 404 Pa.Superior Ct. at 454, 591 A.2d at 296. It found persuasive a Minnesota Court of Appeals case DeVille v. State Farm Mutual Automobile Insurance Company, 367 N.W.2d 574 (Minn.App.1985), and adopted the reasoning and conclusions contained therein. Id., 404 Pa.Superior Ct. at 454, 591 A.2d at 296.

In DeVille, Jennifer DeVille was injured while riding as a passenger on her husband’s motor cycle. After recovering the limits on her husband’s policy, she sought to attain underinsurance benefits under the separate individual policy she had bought for her own automobile. The insurance company, however, refused to award her underinsurance benefits because the policy contained a “Family Car Exclusion.” The Court found this particular exclusion void as against public policy:

DeVille recovered under the tortfeasor’s liability coverage and is now seeking underinsured motorists benefits from her own personal policy with underinsured motorist coverage purchased by her for her own protection. This is classic “first-party” coverage and should follow her wherever she may be located when injured. She paid separate premiums for the car registered to her, and the policy was issued to her. To hold otherwise would be to carve out a new exception to the Sarvela rule, applicable when the tortfeasor and the victim are a married couple. This is an exception that we cannot make. Although married, DeVille is a separate person from her tortfeasor husband, owns a separate automobile, and has a separate policy. We cannot infer that the two are somehow acting as one and attempting to convert underinsured motorist coverage into liability coverage.

Id. at 577, as quoted in Marroquin, supra, 404 Pa.Superior Ct. at 454, 591 A.2d at 296. As noted in Marroquin, the Sarvela rule to which the court refers is the rule of law first promulgated in American Motorist Insurance Company v. Sarvela, 327 N.W.2d 77 (Minn.1982). “The [Sarvela ] rule states that a policy provision which excludes under-insurance motorist benefits when the insured is injured while occupying a vehicle owned by the insured or family member is presumed to be invalid.” Marroquin, supra, 404 Pa.Superior Ct. at 455, 591 A.2d at 296. However, an exception to this rule exists when the plaintiff attempts to convert underinsurance coverage (first-party coverage) into liability coverage (third-party coverage). Id. Marroquin indicated that both Wolgemuth and Newkirk were not adverse to the Sarvela rule because they both fell into this exception. Similarly, the facts sub judice fall squarely into the Sarvela excéption.

We have before us a situation where the named insured is trying to recover both the liability coverage and the under-insurance coverage on the same policy. We have consistently indicated that to recover underinsured motorist coverage there has to exist two policies of insurance. This is because the purpose of underinsured motorists coverage, as indicated supra, is to protect against the risk, in a two car accident, that the other vehicle’s driver has inadequate liability coverage to compensate for injuries caused by his negligence. Here, unlike in Marroquin, the appellant and her husband purchased a single insurance policy. She was injured in a single vehicle accident while a passenger in a car driven by a person also insured under the policy (her husband), and seeks to recover underinsurance benefits from the same policy from which she received liability benefits. The exclusion in the appellee’s policy is thus in perfect accord with the purpose of underinsured coverage as elucidated in Wolgemuth: to protect the injured claimant against the risk that a tortfeasor over whom the claimant has no control purchases an inadequate amount of liability coverage. Here, the claimant and tortfeasor husband had control over the amount of liability coverage they purchased. We have no trouble holding that despite the appellant’s attempt to characterize this as a novel claim, precedent has already spoken on this question.

We find persuasive and analogous a progeny of DeVille, supra, the Minnesota Court of Appeals’ decision in Linder by Linder v. State Farm Mutual Insurance Company, 364 N.W.2d 481 (Minn.App.1985). In Linder, the plaintiff was struck by a automobile driven by her brother and was paid the policy liability limits on it. The plaintiff subsequently sought underinsurance motorist benefits pursuant to separate policies on two other family automobiles and the insurer refused to pay, citing the family car provision in those policies. The Court rejected the contention that the family car provisions violated public policy, noting that all three policies were in the name of the same insured, the plaintiff’s father. The Court declared that to rule otherwise would allow the father to convert his inexpensive underinsurance coverage into liability coverage. In upholding the exclusion, the Court stated: “[ujnderinsured motorist coverage is not designed to relieve an insured or his family from the failure to purchase adequate liability coverage.” Id. at 483.

The appellant argues that, if we are not convinced by her argument that the law is unclear is meritorious, then Mar roquín is the closest analogy to the present case. Appellant claims the present policy exclusion is in effect a family car exclusion. Moreover, she asserts that if we look at the policy’s substance instead of its form we can discern that it is in reality two separate policies. However, the appellant is mistaken by deeming the exclusion in her policy a “family car exclusion.” The exclusion does not exclude family members, as in DeVille and Marroquin, but excludes motor vehicles under the liability coverage of the policy from being considered as an underinsured vehicle. Thus, the appellee’s policy exclusion embodies the permissible motivation of the Sarvela rule exception, as opposed to a family car exclusion, which can be at odds with the Sarvela rule, as illustrated by DeVille and Marroquin. Appellant, moreover, is mistaken when she avers the form of the policy rather than its substance prevents her from recovering underinsurance motorist benefits. As we noted supra, appellant’s reliance on the billing notice and appellee’s so-called “admission” is misguided. Moreover, the exact words of the policy clearly exclude from consideration as underinsured any vehicle insured under the policy, and we have previously found that this exclusion does not violate public policy.

Appellant claims that the only reason why she is barred from recovery would be because she unknowingly chose to join in a policy of insurance with her husband rather than ordering a separate policy herself. Appellant’s knowledge, however, has no legal relevance to the issue at hand. Appellant’s Complaint asks only for a declaration that the exclusion violates public policy. Either the exclusion violates public policy or it does not. What appellant is essentially arguing is that it is against public policy for a married couple or a family to purchase a single policy of automobile insurance for their various automobiles and in exchange, be treated as a unit for liability purposes. As indicated by Linder, supra, and the law in this area, this is simply not true.

We emphasized in Wolgemuth that one of the legislature’s purposes in enacting the MVFRL was to reduce the cost of purchasing motor vehicle insurance. Many married couples and families would rather attain lower insurance rates and, in exchange, sacrifice the ability to attain under-insurance coverage under a non-accident vehicle. Appellant asks us to rewrite the MVFRL under the guise of “public policy” with the inevitable result that insurance rates will rise for a married couple or family which has chosen to insure all their vehicle under one policy. See Wolgemuth, supra, 370 Pa.Super. at 63-64, 535 A.2d at 1151-2.

We affirm.

      . The policy contained an amendatory endorsement, captioned Endorsement 2113, which unambiguously states:
      We will not consider as an underinsurance motor vehicle:
      1. ...
      2. any motor vehicle insured under the liability coverage of this policy.

      . The Complaint states that at all times relevant to this matter, Edward J. Kelly and the appellant were insured pursuant to a Nationwide Automobile Insurance policy number 58-B-872925. Appellant’s Complaint at paragraphs 5 & 6.

      . We have examined the billing notice, and there exists nothing on its face that would imply that it is part of the appellants’ policy. To the contrary, as noted infra, the billing notice specifically declares the policyholder to be “Edward J. & Clara Kelly.”

      . The Court noted that Pennsylvania courts have often relied on Minnesota case law interpreting Minnesota’s motor vehicle insurance legislation, as our legislation is similar. Marroquin, supra, 404 Pa.Superior Ct. at 450 n. 3, 591 A.2d at 293 n. 3. Although the Court noted the Minnesota underinsurance provision and the holding in DeVille, supra, has subsequently been superseded by statute, our statute parallels the pre-amendment Minnesota law and thus the relevance of DeVille is not altered by the legislative amendment. Id., 404 Pa.Superior Ct. at 455 n. 4, 591 A.2d at 296 n. 4.

      . We note that if a party could avoid judgment on the pleadings by characterizing the parties’ assertions as embodying a slightly different wrinkle than past precedent, judgment on the pleadings would never be granted. As always, we must decide whether there is no genuine issue of fact, and the moving party is entitled to judgment on the pleadings as a matter of law. See, Pa.R.C.P. 1034, Giddings, supra.

      . We hesitate to address this argument. This argument is buried within one of appellant's two arguments and is clearly distinct from either argument. Appellant has failed to comply with Pa.R.A.P. 2119(a):
      (a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part — in distinctive type or in type distinctively displayed— the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent.
      However, as appellee has fully responded to appellant’s argument and the argument is presented in a comprehensible fashion, our review is not hindered and we address its merits. We also note that appellee’s brief has failed to comply with the Rules of Procedure in this respect.

      . We do not have before us a situation where it is alleged that insurance companies have colluded to refuse to issue separate policies to married couples or family members.


source: Caselaw Access Project

author: CERCONE, Judge:

license: Public Domain

text:
    606 A.2d 477
    COMMONWEALTH of Pennsylvania v. Edward NOVASAK, Appellant.
    Superior Court of Pennsylvania.
    Submitted Jan. 13, 1992.
    Filed April 2, 1992.

      Mark S. Greenberg, Philadelphia, for appellant.
    Donna G. Zucker, Asst. Dist. Atty., Philadelphia, for Com.
    Before MONTEMURO, HUDOCK and CERCONE, JJ.
   CERCONE, Judge:

This is a direct appeal from the judgment of sentence entered after a jury convicted appellant, Edward Novasak, of two counts of robbery, one count of impersonating a public servant, and one count of possessing an instrument of crime. For the reasons appearing below, we affirm.

The events underlying the instant appeal occurred on February 21, 1989 at approximately 2:00 p.m. when appellant entered the Philadelphia residence of Mr. and Mrs. James Aukett. The Auketts were both at home, as was their six year-old daughter and their infant granddaughter. Mrs. Aukett’s seventy-six year old mother was also present at the time appellant invaded the Aukett home. Pretending to be a police officer, appellant was accompanied by a confederate who pretended to be his “snitch,” or informant. Appellant pointed a handgun at the Aukett family, flashed a purported police badge at them, announced that he was from “five squad,” and demanded “cocaine and drugs.”

To keep his victims at a psychological disadvantage, appellant menaced them with his gun, demanded identification, and stated that he would arrest everyone present. He also threatened to tear the house apart if the Auketts did not produce contraband substances. When they explained that they had no drugs, appellant forced Mrs. Aukett to accompany him to her bedroom, and then to the kitchen, where he searched for items of value. Finally, appellant pretended to telephone police headquarters to report that his supposed investigation of the Aukett residence was a “bad call.” Appellant took some of Mrs. Aukett’s jewelry from her bedroom as well as cash in the amount of nine hundred seventy-one dollars ($971) which had been on top of the victims’ microwave oven. After appellant departed, Mrs. Aukett pushed the redial button on the telephone and determined that he had called a recorded message number and not police headquarters. She then summoned the real police. See N.T. 12/20/89 at 18-37, 55-56.

After the jury found appellant guilty of the above delineated charges, appellant filed post verdict motions which were denied. He was sentenced to serve an aggregate term of incarceration of between twelve and one-half (12-1/2) and twenty-five (25) years. Appellant’s motion to modify sentence was denied by the lower court without the benefit of a hearing. The instant timely appeal followed, raising five issues for our consideration: (1) whether the Commonwealth engaged in prosecutorial misconduct during closing; (2) whether the lower court erred in denying appellant’s request for police investigation reports of crimes in the South Philadelphia area similar to those with which appellant was charged; (3) whether the Commonwealth committed discovery violations regarding a rebuttal witness to appellant’s alibi defense; (4) whether the trial court erred in failing to instruct the jury regarding the limited purpose for which appellant’s prior conviction for theft could be considered; and (5) whether the court erred in denying appellant’s motion for reconsideration of sentence without conducting a hearing. We shall address these contentions seriatim.

The first claim advanced is that the prosecutor engaged in misconduct during closing by repeatedly “raining invective” upon the appellant and by appealing to the passions of the jury. The Pennsylvania Supreme Court has consistently held that “not every intemperate or uncalled for remark by the prosecutor requires a new trial.” Commonwealth v. Green, 525 Pa. 424, 460, 581 A.2d 544, 561 (1990). A new trial is required only in those instances where the language of the prosecutor is such that its “unavoidable effect would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant, so that they could not weigh the evidence and render a true verdict.” Commonwealth v. Johnson, 516 Pa. 527, 533, 533 A.2d 994, 997 (1987). The prejudicial effect of the prosecutor’s remarks must be evaluated in the context in which they occurred. Commonwealth v. Green, supra.

[A] criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statement or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.

Id. 525 Pa. at 460, 581 A.2d at 561-62 (quoting United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985)). The initial determination of whether the prosecutor has exceeded the bounds of “oratorical flair” is for the trial judge. Commonwealth v. D’Amato, 514 Pa. 471, 491, 526 A.2d 300, 309-10 (1987). In its review, the appellate court is limited to determining whether the trial court abused its discretion. Id.

Appellant contends that the prosecutor stigmatized him as a “liar,” a “thief,” a “manipulator,” a “phony,” and an “actor.” That the assistant district attorney used these terms is borne out by the record. However, appellant has failed to place the contested remarks in their proper context. The prosecutor stated the following when he began his closing:

I told you in my opening statement that the evidence would show that this man is a liar, is a thief, and you should find him guilty. I add one more thing for you to . think about. He is an actor and he is a manipulator. I recognize that I have the burden of proof in this case, that I must prove the defendant guilty beyond a reasonable doubt. But keeping that in mind, I submit to you that I have proven that man to be all of those things; a phoney [sic], a liar and a thief. And that what his defense is, that is, that he was somewhere else, is all a smoke screen.

N.T. 12/21/89 at 76.

It is well settled that a prosecutor is not permitted to express a personal belief regarding the defendant’s guilt or innocence or the veracity of the defendant or the credibility of his witnesses. Commonwealth v. Johnson, 527 Pa. 118, 122-23, 588 A.2d 1303, 1305 (1991). However, such comments do not constitute reversible error where the •prosecutor’s statements are elicited by the nature of the defense mounted and where the evidence supports the inference that the defendant and/or a defense witness has lied. Id., 527 Pa. at 123, 588 A.2d at 1305. Further, when assessing a claim of error of this type, the appellate court must consider whether the prosecutor made a deliberate attempt to destroy the objectivity of the factfinder or merely summarized the evidence presented at trial with the oratorical flair permitted during argument. Commonwealth v. Chester, 526 Pa. 578, 600, 587 A.2d 1367, 1377-78 (1991), cert. denied sub nom. Laird v. Pennsylvania, — U.S. -, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991).

We have closely scrutinized the entire closing argument made by the prosecutor. N.T. 12/21/89 at 76-87. We see no indication that the assistant district attorney deliberately attempted to destroy the objectivity of the jury. The terms employed, although they may be deemed strong words, directly relate to facts placed into evidence in the case. It is not reversible error for the prosecutor to comment that the defendant lied in cases where the comment “was a fair inference from irrefutable evidence, rather than a broad characterization of the whole of the testimony as a ‘big lie.’ ” Commonwealth v. Graham, 522 Pa. 115, 119, 560 A.2d 129, 130 (1989) (quoting Commonwealth v. Floyd, 506 Pa. 85, 93, 484 A.2d 365, 369 (1984)).

At trial, Mrs. Aukett testified that appellant pretended to be a police officer. Operating under this guise, appellant both confused and terrorized his victims, distracting them while he appropriated Mrs. Aukett’s money and jewelry. N.T. 12/20/89 at 18-37. This evidence supports an inference that appellant was an “actor” who passed himself off as a police officer. It also supports the inference that he was a “phony,” a “thief,” and a “manipulator” of his victims’ emotions and reactions. The record further discloses that appellant attempted to bolster his alibi defense by stating that during the time the Aukett family was being robbed, he was in the company of Deputy Sheriff Sam Maturo who was on duty with his K-9 unit and accompanied by his dog Max. N.T. 12/21/89 at 37. However, this evidence was directly contradicted by Sheriff’s Department records which showed that Deputy Sheriff Maturo was out sick on the date and time appellant supposedly spoke with him. Id. at 60-64. This evidence supports the inference that appellant provided false testimony and is a “liar” in this regard.

We have carefully reviewed the entirety of the prosecutor’s closing remarks. Viewed in this full context, the comments do not support a finding of reversible error because they are a fair inference from evidence to which the assistant district attorney makes reference. We see no indication that the prosecutor engaged in a deliberate attempt to destroy the objectivity of the factfinder. Nor can we find abuse of discretion in the trial judge’s determination that the questioned remarks created no avoidable prejudice or hostility in the jury. We note additionally that the trial court instructed the jury that the arguments of counsel are not evidence and that the inferences drawn by counsel are not binding. N.T. 12/21/90 at 101. The trial court explicitly explained that each member of the jury is charged with the duty to consider the evidence as he or she remembers it, and to draw his or her own inferences therefrom. Id. In light of the circumstances presented by this case, we conclude that appellant is not entitled to relief on this claim.

Appellant next argues that it was error for the lower court to deny his request for discovery information concerning police investigations of other South Philadelphia robberies allegedly perpetrated by an actor impersonating a police officer. This request was denied on November 16, 1989 by the Honorable Joseph O’Keefe sitting as Motions Judge. The same discovery motion was subsequently presented on November 27,1989 to the Honorable Marvin R. Halbert, the trial judge in this case. Judge Halbert gave a “non-final” ruling that the discovery request was denied. Appellant now contends that both common pleas court judges erred in denying the motion, and that trial counsel was ineffective for failing to present it to Judge Halbert a second time, either immediately before or during trial.

As appellant correctly argues, this question is governed by Rule of Criminal Procedure 305 B(2)(d).

Rule 305. Pretrial Discovery and Inspection
(2) Discretionary with the Court: In all court cases, except as otherwise provided in Rule 263 (Disclosure of Testimony Before Investigating Grand Jury), if the defendant files a motion for pretrial discovery, the court may order the Commonwealth to allow the defendant’s attorney to inspect and copy or photograph any of the following requested items, upon a showing that they are material to the preparation of the defense, and that the request is reasonable:
(d) any other evidence specifically identified by the defendant, provided the defendant can additionally establish that its disclosure would be in the interests of justice.

Pa.R.Crim.P., Rule 305 B(2)(d) (emphasis added). The following pronouncement by the Pennsylvania Supreme Court governs our analysis when reviewing the exercise of discretion by a court of common pleas:

[a]n abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will as shown by the evidence or the record, discretion is abused. Commonwealth v. Moyer, 497 Pa. 643, 647, 444 A.2d 101, 103 (1982).

Commonwealth v. Kocher, 529 Pa. 303, -, 602 A.2d 1308, 1310 (1992).

It is true, as this court has previously explained, that in exercising its power to grant or deny a request for discretionary discovery under Rule 305 B(2), the trial court is to be guided by the following principle:

In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with the protection of persons, effective law enforcement, the adversary system, and national security.

Commonwealth v. Thiel, 323 Pa.Super. 92, 97, 470 A.2d 145, 148 (1983). Speaking for an equally divided court, Justice Zappala has further clarified Rule 305 B(2)(d) in the following manner:

[Subsection (d) ] requires a showing that in addition to being material to the preparation of the defense and reasonable, the request be in the interests of justice. It is important to note that the Rule speaks in terms of a showing by the defendant. These conditions cannot be assumed, and they must be supported by evidence on the record. It is in this context that the evidence presented at the hearing must be examined to determine whether the defendant met his burden (or more precisely whether the court abused its discretion in determining that he had).

Commonwealth v. Iannaccio, 505 Pa. 414, 424, 480 A.2d 966, 971 (1984), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985) (Zappala, J., opinion in support of affirmance, emphasis in original).

In the instant case, appellant sought files in the possession of the Commonwealth regarding other cases involving South Philadelphia robberies allegedly perpetrated by an actor or actors impersonating a police officer. Appellant’s theory is that any and all evidence derived from these files was relevant and material to the case sub judice because it would have been admissible at trial to show that the additional robberies (with which appellant had not been charged) were committed by a person other than appellant. Appellant cites Commonwealth v. Rini, 285 Pa.Super. 475, 427 A.2d 1385 (1981) for the proposition that modus operandi evidence is admissible at trial. Rini holds that “the defense may introduce evidence that someone else committed a crime which bears a highly detailed similarity to the crime with which the defendant is charged____” Id., 285 Pa.Superior Ct. at 480, 427 A.2d at 1388 (emphasis added). While this statement is unquestionably the law of Pennsylvania, the ruling in Commonwealth v. Rini is inapposite to the instant case. Appellant’s allegation of trial court error concerns the discoverability of certain information, not whether that information would ultimately constitute admissible evidence at trial. Thus, the proper focus of our analysis must concern whether appellant provided the court of common pleas with enough factual data to justify granting the discovery request. At this point, it is irrelevant whether the motion, if granted, would have yielded admissible evidence.

We agree with appellant that evidence is always relevant and material to the defense if it tends to show that a specific crime of which a defendant stands accused was committed by someone else. See, e.g., Commonwealth v. Boyle, 470 Pa. 343, 359, 368 A.2d 661, 669 (1977). However, we cannot agree with appellant’s conclusion that he was automatically entitled to receive copies of all police reports relating to every other South Philadelphia robbery allegedly perpetrated by an actor or actors impersonating a police officer. The simple fact is that the language of Rule 305 B(2)(d) requires a defendant to shoulder the burden of demonstrating to the trial court that the discovery information sought is material, that the request is reasonable, and that disclosure is in the interests of justice. In the instant case, appellant failed to meet this burden.

The certified record contains a copy of the written discovery motion presented to Judge O’Keefe. It states in pertinent part:

G. Upon information and belief it is the understanding of counsel that the Philadelphia Police, in particular Det. Joseph Hasara, investigated a series of robberies where the perpetrator identified himself as a police officer as the defendant was alleged to have done in this case. This evidence would be admissible at trial under the theory of common plan, scheme and design.

Discovery Motion filed 10/30/89 (citations omitted). At the hearing before Judge Halbert, trial counsel explained that in Philadelphia there were “other similar robberies where a person posed as a police officer” and that Police Detectives Kuhlmeier and Hassara possessed police reports concerning the additional robberies. N.T. 11/27/89 at 3-4. Trial counsel then requested the court to order the police reports to be turned over to the defense. Id. at 4.

At the November 27th hearing, trial counsel plainly argued that the crime with which appellant was charged was a “signature crime.” It is probable, although not patent on the face of the record, that trial counsel hoped to show that appellant was the victim of a mistaken identification and that the charged robbery was committed by some other person. However, such a theory was never actually proffered to the court of common pleas. Instead, appellant presented a lengthy legal argument regarding the admissibility of modus operandi evidence. After carefully considering the briefs and the record certified on appeal, we find no indication that appellant ever alleged any reasonable quantum of facts to the lower court which would support the conclusion that the discovery information he sought was relevant and material to the preparation of a defense in the instant case. Appellant merely requested police reports concerning all other South Philadelphia robberies perpetrated by police impersonators.

Under the circumstances presented here, we cannot conclude that the court of common pleas “overrode” or misapplied the law of the Commonwealth by denying appellant’s discovery requests. Nor have we discerned any indication of partiality, prejudice, bias, or ill-will toward appellant on the part of either Judge O’Keefe or Judge Halbert. We therefore decline to hold that the court of common pleas committed abuse of discretion in this matter.

Appellant also complains that former counsel was ineffective for failing to renew his discovery request with Judge Halbert immediately after the trial court’s initial “non-final” ruling. We review a claim of ineffective assistance of counsel under the following standard:

First we must determine whether the issue underlying the claim is of arguable merit. Commonwealth v. Evans, 489 Pa. 85, 413 A.2d 1025 (1980). If the claim lacks merit, our inquiry ceases, as counsel will not be deemed ineffective for failing to pursue a baseless or meritless issue. Commonwealth v. Nelson, 514 Pa. 262, 523 A.2d 728 (1987). If, however, the claim has merit, we must then determine whether the course of action chosen by counsel had some reasonable basis designed to effectuate his client’s interests. Commonwealth v. Hentosh, 520 Pa. 325, 554 A.2d 20 (1989). Finally, appellant must show that counsel’s ineffectiveness so prejudiced his case that he was denied a fair trial. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987).

Commonwealth v. March, 528 Pa. 412, 414, 598 A.2d 961, 962 (1991). An allegation of ineffectiveness of counsel cannot be established without a finding of prejudice. Id., 528 Pa. at 416, 598 A.2d at 963. Accord Commonwealth v. Durst, 522 Pa. 2, 559 A.2d 504 (1989); Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988).

Even assuming, arguendo, that appellant had established the merit of the underlying claim, in order to show ineffectiveness he is still required to demonstrate that prior counsel's alleged ineffectiveness so prejudiced his case that he was denied a fair trial as a result of counsel’s action or inaction. Commonwealth v. March, 528 Pa. at 414, 598 A.2d at 962. In light of the extensive identification testimony provided by both Mr. and Mrs. Aukett, we see no indication that appellant was denied a fair trial because his discovery request was denied. See N.T. 12/20/89 at 21-24, 31, 34 (testimony of Eleanor Aukett).

Mrs. Aukett gave a detailed description of the perpetrator and unhesitatingly identified appellant as the man who victimized her family. Id. She also testified that appellant remained in the Aukett home for about twenty minutes and that she spent more than five minutes in very close proximity to him in her kitchen. Id. Despite a thorough cross-examination during which trial counsel made every effort to shake Mrs. Aukett’s testimony, she continued unflinchingly to identify appellant as the perpetrator. See, e.g., id. at 65. Mr. Aukett’s testimony corroborates that given by his wife. Id. at 74-76, 77, 80, 82, 102. In consideration of the strong identification testimony providéd by the Auketts regarding this specific robbery, we cannot conclude that appellant received an unfair trial because prior counsel failed to obtain discovery material pertaining to other robberies which were not charged against appellant but which allegedly followed a similar modus operandi.

The next contention before us is whether the Commonwealth committed discovery violations regarding the testimony of Deputy Sheriff Virgil Robinson who was called to rebut appellant’s alibi testimony. The crux of this complaint is that appellant believes that the prosecutor, without having been directly informed of the fact, nevertheless knew that appellant’s alibi defense would hinge on evidence that Deputy Sheriff Sam Maturo and his dog were on duty near City Hall at the time the Auketts were being robbed. Appellant contends that the Commonwealth was derelict in its duty under Pa.R.Crim.P., Rule 305, 42 Pa.C.S.A. for failing to notify the defense that Deputy Sheriff Robinson, the Sheriff’s Department time keeper, would testify as to the contents of Sheriff’s Department business records indicating that Deputy Sheriff Maturo was ill and had not reported for duty on the relevant date. The Commonwealth counters this argument by contending that because appellant himself committed a discovery violation in failing to include Deputy Sheriff Maturo’s name on his Notice of Alibi Defense, the prosecution was not placed on notice that appellant intended to base his defense on the duty status of Deputy Sheriff Maturo.

Rule of Criminal Procedure 305 C, which governs disclosure of material evidence relevant to an alibi defense contains the following pertinent provisions:

C. Disclosure by the Defendant
(1) Mandatory:
(a) Notice of Alibi Defense: A defendant who intends to offer the defense of alibi at trial shall, at the time required for filing the omnibus pretrial motion under Rule 306, file of record notice signed by the defendant or the attorney for the defendant, with proof of service upon the attorney for the Commonwealth, specifying intention to claim such defense. Such notice shall contain specific information as to the place or places where the defendant claims to have been at the time of the alleged offense and the names and addresses of witnesses whom the defendant intends to call in support of such claim.
(c) Disclosure of Reciprocal Witnesses: Within seven (7) days after service of such notice of alibi defense ..., or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall disclose to the defendant the names and addresses of all persons the Commonwealth intends to call as witnesses to disprove or discredit the defendant’s claim of alibi____
(d) Failure to File Notice: If the defendant fails to file and serve notice of alibi defense ... as required by this rule, or omits any witness from such notice, the court at trial may exclude the testimony of any omitted witness, or may exclude entirely any evidence offered by the defendant for the purpose of proving the defense, except testimony by the defendant, or may grant a continuance to enable the Commonwealth to investigate such evidence, or may make such other order as the interests of justice require.
(e) Failure to Supply Reciprocal Notice: If the attorney for the Commonwealth fails to file and serve a list of its witnesses as required by this rule, or omits any witness therefrom, the court at trial may exclude the testimony of any omitted witness, or may exclude any evidence offered by the Commonwealth for the purpose of disproving the alibi, insanity or mental infirmity defense, or may grant a continuance to enable the defense to investigate such evidence, or may make such other order as the interests of justice require.
(g) Impeachment: A defendant may testify concerning an alibi notwithstanding that the defendant has not filed notice, but if the defendant has filed notice and testifies concerning his presence at the time of the offense at a place or time different from that specified in the notice, the defendant may be cross-examined concerning such notice.

Pa.R.Crim.P., Rule 305 C(l)(a), (c-e), and (g). The certified record discloses that appellant filed a Notice of Alibi Defense on July 31, 1989 prior to his first trial. This notice states that on the day of the alleged offense, appellant was en route from 219 N. Broad Street to his home at 1222 Morris Street in the City of Philadelphia. The July/list filing additionally identified Joyce and Michelle Shaner, also of 1222 Morris Street, as witnesses on appellant’s behalf. Although appellant re-filed his discovery requests in conjunction with his second trial, he did not file another Notice of Alibi Defense.

Appellant cites Commonwealth v. Thiel, supra, for the proposition that the Commonwealth’s failure to disclose possible impeachment or rebuttal evidence may lead to reversible error when such evidence is sprung upon the defendant unawares. Thiel holds that Rule 305 B(l), pertaining to mandatory disclosure by the Commonwealth, makes no distinction between rebuttal evidence and evidence the Commonwealth expects to use in its case-in-chief. Id., 323 Pa.Super. at 98, 470 A.2d at 148. We agree with appellant that, placed in its proper context, the ruling in Thiel disapproves of “gamesmanship” which would result in a “trial ambush” for a defendant. However, we do not agree that the events which occurred in the instant case warrant such an interpretation.

As the Commonwealth has correctly averred, appellant omitted all mention of Deputy Sheriff Maturo in his Notice of Alibi Defense. Arguably, such mention is not required under Rule 305 C because appellant did not call Deputy Sheriff Maturo as a witness. Nevertheless, since appellant did not file a second Notice of Alibi Defense, we cannot fault the prosecutor for failing to predict that appellant would pursue an identical alibi strategy at the second trial. This is especially true as the new trial was granted because of a hung jury rather than from some other cause. The simple fact is that appellant never placed the Commonwealth on notice that the question of Deputy Sheriff Maturo’s duty status on the date in question would be an issue at the second trial. As we explained in Commonwealth v. Thiel, “we cannot expect the Commonwealth to anticipate the materiality of all possible rebuttal evidence, ... and we can imagine cases in which the materiality of certain evidence in the Commonwealth’s possession might not become apparent until after trial has begun.” Id., at 97-98, 470 A.2d at 148.

In the instant case, the trial court permitted appellant to give his alibi testimony and to call corroborating witnesses even though one of the witnesses, Allison Bell, was not listed on the Notice of Alibi Defense filed before the first trial. Appellant stated that he could not have perpetrated the offenses with which he was charged because at the relevant time he was in a different location. Specifically, appellant testified that he had kept an appointment with Ms. Allison Bell, an employee of the City of Philadelphia, at 121 North Broad Street and that he had been accompanied on this expedition by Michele Shaner. N.T. 12/21/89 at 35-36. As a corroborative detail for his story, appellant explained that he and Michele stopped to talk with Deputy Sheriff Maturo who was on duty with the K-9 unit at City Hall. Id. at 37. Michele Shaner, a seven year old girl, corroborated appellant’s testimony regarding the trip to Ms. Bell’s office and the fact that she saw a “cop” on duty with his dog. Id. at 24-26. Despite the fact that the Commonwealth had never been notified that she would appear as a witness for appellant, Ms. Bell was permitted to testify that appellant, accompanied by young Michele Shaner, kept an appointment at her office at the relevant time and date. Id. at 16-18. See also Commonwealth v. Anthony, 376 Pa.Super. 623, 546 A.2d 1122 (1988) (alibi witnesses not disclosed before the morning of trial were properly barred from testifying).

After the evidence concerning appellant’s alibi defense was concluded, including the testimony by surprise witness Allison Bell, the prosecutor called Deputy Sheriff Virgil Robinson to provide rebuttal testimony. Id. at 54. When appellant objected, the trial court conducted a sidebar conference on the admissibility of the proffered evidence. N.T. 12/21/89 at 54-60. After the trial court was satisfied that the prosecutor had not been placed on notice regarding the precise nature of appellant’s alibi testimony, he ruled the rebuttal evidence admissible and offered defense counsel time in which to conduct an investigation. N.T. 12/21/89 at 59-60. This was a proper remedy under Rule 305 C(l)(e), supra. We find no indication that the Commonwealth deliberately concealed material discovery information from appellant or that the trial court committed an abuse of discretion in fashioning a remedy for appellant’s allegation that a discovery violation had occurred.

Appellant’s penultimate claim is that the trial court erred in failing to sua sponte give an instruction limiting the purpose for which appellant’s prior conviction on theft charges could be considered by the jury. Appellant also levels a charge of ineffectiveness against trial counsel for failing to request such an instruction. The record shows that, in an apparent attempt to convince the jury he was a reformed thief now incapable of armed robbery, appellant testified on direct examination that he had two prior auto theft convictions. N.T. 12/21/89 at 41-42. As the Commonwealth correctly argues, once appellant placed his character in issue via his own direct testimony, the prosecution was entitled to exploit the opening on cross-examination and in closing. See 42 Pa.C.S.A, § 5918(1) (Examination of defendant as to other offenses) and cases collected thereunder. See also Commonwealth v. Martin, 465 Pa. 134, 171-73, 348 A.2d 391, 410-11 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976) (Commonwealth was entitled to counter character evidence adduced by defendant).

Appellant’s contention that he was deprived of a limiting instruction is belied by the record which shows that the trial court actually interrupted appellant’s character testimony to caution the jury regarding the purpose for which they could consider this evidence.

Q. (by defense counsel): Sir, back in 1979 and 1980 you were convicted, were you not, of two counts of auto theft?
A. (by appellant): Yes, I was.
Q. You served time for these crimes?
A. I served two to five years running concurrently for each charge and did my time.
Q. You served time in prison?
A. Yes, and I served all my parole properly without—
Q. (Interposing) that was in 1979 and 1980, about ten years ago?
A. Yes.
Q. Okay. Sir—
THE COURT: (Interposing) Members of the jury, once again let me advise you this testimony concerning the prior convictions for the defendant and the charges that he just recited are not to be received by you as evidence that he may be a bad guy or indeed that he committed this offense. But it is evidence for you to consider as to whether that conviction of that offense in any way affects his credibility or believability in this case.

N.T. 12/21/89 at 41-42. The above transcript extract plainly demonstrates that the trial judge sua sponte provided an appropriate jury instruction. We will not find reversible error on this basis. Neither can the Assistant District Attorney be faulted for cross-examining appellant regarding the character evidence or for referring to this testimony during summation. See, e.g., Commonwealth v. Martin, supra (prosecution was entitled to challenge defendant’s character testimony where the trial court instructed the jury on the limited purposes for which the evidence was offered).

Appellant has also alleged that prior counsel was ineffective for failing to request an additional instruction during the jury charge. Even assuming, solely for the sake of argument, that the issue underlying this claim is of arguable merit, appellant has failed to meet his burden of showing that trial counsel’s inaction resulted in an unfair trial. This court will not find ineffectiveness unless an appellant demonstrates that the challenged action or inaction of counsel so prejudiced his case as to result in an unfair trial. Commonwealth v. March, supra. A claim of ineffectiveness of counsel cannot be established without such a finding of prejudice. Id., 528 Pa. at 416, 598 A.2d at 963. In light of the fact that the jury actually received the benefit of a correct and timely curative instruction, we are unable to conclude that appellant was so prejudiced by the lack of a second instruction that he received an unfair trial as a result. We therefore decline to deem prior counsel ineffective on this basis.

The final issue presented is that the trial court erred in denying appellant’s motion for reconsideration of sentence without holding a hearing. The essence of appellant’s claim does not concern the absence of a hearing, but rather focuses on the nature of the sentence imposed. It is appellant’s contention that the trial court erred in sentencing outside the Sentencing Guidelines. This is a challenge to the discretionary aspects of the sentence. Appellant’s brief includes a separate statement contending that a substantial question exists regarding the appropriateness of the sentence imposed under the Sentencing Code as required by the Pennsylvania Rules of Appellate Procedure. See 42 Pa.C.S.A. § 9781(b); Pa.R.A.P., Rule 2119(f), 42 Pa.C.S.A.; Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987). This claim has therefore been properly preserved.

However, the sole basis advanced here for overturning the order of sentence is that the term of imprisonment imposed exceeds that recommended by the Sentencing Guidelines. This allegation is not enough, standing alone, to justify vacating an order of sentence. The trial court is free to sentence a defendant outside the Guidelines. Commonwealth v. Ousley, 392 Pa.Super. 549, 553, 573 A.2d 599, 601-02 (1990). The only limitation on such an exercise of the sentencing court’s discretion is that the lower court must provide a statement of reasons explaining the deviation from the guidelines. Id. In the instant case, the sentencing judge conducted a thorough hearing in which he discussed the sentencing rationale in great detail. N.T. 10/31/90 at 27-35 (discussion of the presentence and psychiatric report with counsel), 39 (concise statement of reasons for sentencing outside the Guideline range).

We note moreover, that this court will not find a substantial issue regarding the appropriateness of sentence where the sentencing court had the benefit of a pre-sentence investigation which it considered carefully. Commonwealth v. Sauter, 389 Pa.Super. 484, 488, 567 A.2d 707, 709 (1989), allocatur denied, 525 Pa. 598, 575 A.2d 564 (1990). The record in the instant case plainly indicates that presentence reports were meticulously considered by the sentencing judge both prior to the sentencing hearing and during the hearing. N.T. 10/31/90 at 27-39. We therefore conclude that appellant has failed to present us with a substantial question which will allow us to review the discretionary aspects of his sentence. As such, we must disallow the appeal.

Judgment of sentence affirmed.

      . 18 Pa.C.S.A. § 3701(a).

      . Id. § 4912.

      . Id. § 907(a) (criminal instruments generally) and (b) (possession of weapon).

      . Trial counsel was permitted to withdraw after the jury found appellant guilty. Present counsel was appointed to represent appellant for the purposes of filing an appeal. Trial counsel’s alleged ineffectiveness was correctly raised before the trial court via supplemental post-verdict motions filed August 7, 1990. The question of prior counsel’s ineffectiveness is therefore properly before us because it was raised "at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant.” Commonwealth v. Hubbard, 472 Pa. 259, 276-77 n. 6, 372 A.2d 687, 695 n. 6 (1977). See also Commonwealth v. Pizzo, 529 Pa. 155, 602 A.2d 823 (1992) (clarifying the procedural posture under which allegations of trial counsel’s ineffectiveness may be raised by new counsel on direct appeal).

      . We note that nothing in the opinions supporting reversal which were penned in Iannaccio by Chief Justice Nix or Justice Larsen directly contradicts Justice Zappala’s above quoted statement. Id., 505 Pa. at 427-441, 480 A.2d at 972-80 (Opinion in support of reversal by Nix, C.J. and Opinion in support of reversal by Larsen, J.).

      . Although the docket from the lower court indicates that Judge O’Keefe conducted a hearing regarding the discovery motion on November 16, 1989, the certified record does not contain a transcript of that hearing.

      . Even in this context, it is noteworthy that appellant did not advance sufficient facts to show that the offense charged constituted a “signature crime.” While identity may be proven or disputed by modus operandi evidence of other crimes, our law uniformly holds that proof of modus operandi requires more than a mere similarity between the crimes. Rather, there must be such a high correlation in the details of the crimes that proof a person committed one of them makes it very unlikely that anyone else committed the others. See Commonwealth v. Morris, 493 Pa. 164, 176, 425 A.2d 715, 720 (1981). See also

        Commonwealth v. Bryant, 515 Pa. 473, 478, 530 A.2d 83, 86 (1987) (the fact that crimes are of the same general class or that the methods employed were similar is not enough to classify them as so “unusual and distinctive as to be like a signature”). We note that in the specific context of this claim, appellant’s appeal brief alleges no special factual basis in addition to that advanced by trial counsel which would place the information sought in the category of a "signature crime.”

      . Appellant was granted a second trial resulting in the verdict which is the subject of the instant appeal. The first trial ended on August 23, 1989 because the jury was judged to be hopelessly deadlocked.

      . We note that the index of the trial transcript incorrectly identifies this testimony as having been provided by Joyce Shaner, a witness listed on appellant’s Notice of Alibi Defense. The testimony was indisputably provided by Ms. Allison Bell, who identified herself before testimony began. Id. at 15.

      . 204 Pa.Code § 303.1 et seq. The Sentencing Guidelines have been reproduced for convenience at 42 Pa.C.S.A. § 9721 et seq.


author: POPOVICH, Judge:

text:
    606 A.2d 489
    Cathy A. DEARDORFF, Natural Mother and Guardian of Jessica Deardorff, and Cathy A. Deardorff, Individually, Appellants, v. Carol BURGER, Appellee.
    Superior Court of Pennsylvania.
    Argued Jan. 15, 1992.
    Filed April 3, 1992.

      Theresa L. Shade Wix, Harrisburg, for appellants.
    Kerry V. Smith, Harrisburg, for appellee.
    Before McEWEN, POPOVICH and JOHNSON, JJ.
   POPOVICH, Judge:

In this appeal, we re-examine the law concerning the liability of dog owners for the actions of their pets. We are asked to review the June 26, 1991, order of the Court of Common Pleas of Dauphin County denying a motion for a new trial filed by the plaintiff/appellant, Cathy A. Deardorff, natural mother and guardian of Jessica Deardorff, individually. We affirm.

In reviewing the denial of a motion for a new trial, this Court will reverse only when the lower court has clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. Lilley v. Johns-Manville Corp., 408 Pa.Super. 83, 596 A.2d 203 (1991).

With the preceding in mind, our review of the evidence discloses that, on the afternoon of November 16, 1986, 2-year-old Jessica, her father (David) and Shane Burger were in Shane’s backyard raking leaves. Within 15 minutes of their arrival, Shane let the dog out of the house to roam in the backyard.

Shane recalled that the trio played in the leaves and Jessica ran toward the dog, a 75-pound German shepherd named “Smokey”. Jessica was told by her father to “get back” toward him. Shane offered to return the dog to the house, but the father did not feel it was necessary. The next thing to occur, as told by Shane, was that:

... [the child] was playing in the leaves. And she came upon [the dog] ... She hugged him around the neck and she was off to the side. And [the dog] tried ... to get away from her at that point in time____
... [I]t all happened so fast. [Shane] just saw Smokey pulling back. There was — if he would have bit Jessica, she probably would not have a face at this point in time. He’s got quite a snout on him. He did yelp, okay, as he usually does when something’s happening to him that he does not like. But [Shane] did not see [the dog], you know — there was no lunging at the child or anything like that. The dog veered back. She fell down, and we grabbed the kid and, you know, went because then we realized ... she’s bleeding____ And it just happened like that, (indicating) that fast. [N.T. 54]

Jessica was taken to the hospital, sedated and received stitches “all over the face ... under the eye, over her eye [and] by her lip[.]” The child was released the same day. Within a month, the stitches were removed, and a scar remained above and below the child’s left eye.

On June 13, 1988, a writ of summons was filed against Carol Burger, Shane’s mother and the owner of the home in which the dog lived, for “negligently and carelessly restraining her dog.” Paragraph 5. The plaintiff claimed damages in excess of $20,000 for the injuries sustained by the child “[d]ue solely to the negligence and carelessness of [Carol Burger].” Id. at 6. Following a two-day trial, the jury returned a verdict in favor of the defendant/Carol Burger. Post-trial motions were denied and an appeal to this Court ensued.

The first claim of the appellant concerns the assertion that the trial court erred in refusing to charge the jury on the theory of absolute liability of a dog owner aware of the animal’s vicious propensities and the resulting injuries incurred by someone bitten by the animal. This liability, the appellant maintains, is absolute regardless of the circumstances of the accident and the exercise of any care or caution by the dog’s owner.

The appellant cites Section 509 of the Restatement (Second) of Torts and Mann v. Weiand, 81* Pa. 243 (1875) in support of her proposition. We find that the trial court’s instructions on negligence were sufficient and did not require the inclusion of an absolute liability charge given that Section 509 of the Restatement (Second) of Torts has yet to be adopted in this Commonwealth, a point which the appellant concedes in her brief at page 11.

With regard to the case of Mann v. Weiand, supra, a civil action for damages resulting from the defendant’s negligent keeping of a ferocious dog, the court wrote:

We think one instance may show such unmistakable evidence of a vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character. The gist of the action for the subsequent misconduct of the dog, is for keeping it after knowledge of its vicious propensity: May v. Burdett, 9 Q.B., 101; Wheeler v. Brandt, 23 Barb., 324. It thereupon becomes the duty of the owner so to keep his dog as to guard against a repetition of similar misconduct. He is bound to secure it at all events, and is liable to parties afterwards injured if the mode he has adopted to secure it proves insufficient: Wood on Nuisance, section 763; Jones v. Perry, 2 Esp., 482; Mason v. Keeling, 12 Mod., 332. The principle on which this rule rests was held in Mann v. Reed, 4 Allen, 431, to be, that a ferocious animal, liable to do injury to men or property, is a nuisance, and that keeping it after notice of such liability is so wrongful, that the owner is chargeable for any neglect to keep it with such care that it cannot do any damage to a person who without any essential fault is injured thereby.
The same rule applies with reference to other nuisances: Wood on Nuisances, section 766; Foish v. Sheet, 221 Barb., 333; Hughes v. McNamara, 106 Mass., 281; Marsh v. Jones, 21 Vt., 378. Hence the keeping of a vicious dog near a public highway, endangering the safety of persons passing thereon, is a nuisance, operating as an obstruction, and renders the person knowingly keeping it there liable to indictment, and also liable to an action in favor of any person injured thereby: Granger v. Findley, 7 Irish C.L.Rep., 417; Wood on Nuisance, section 768.

81* Pa. at 254. The reason for so holding was that an owner of a dog, after he had notice, was bound to secure it at all events, and failure to do so resulted in the owner’s liability to persons injured thereafter. See Commonwealth v. Carl, 87 Pa.Super. 110, 112 (1925).

In Andrews v. Smith, 324 Pa. 455,188 A. 146 (1936), our Supreme Court had occasion to re-examine the question in the context of a compulsory non-suit. It wrote:

The theory upon which courts have so long ruled that liability for damages cannot be fastened upon the owner of a dog when that dog has bitten someone unless the owner knew of the dog’s vicious propensities, is that it would be unfair to hold the owners of domestic animals that are normally harmless responsible for the vicious acts of these animals unless they were put on notice that the animal was vicious. In so holding, the courts have merely applied the principle that no man is responsible for injuries caused by his property unless he himself was guilty of negligence in his manner of controlling or not controlling that property.
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mere ownership alone of inherently and apparently harmless property does not carry with it liability for damages for an injury of which that property was the instrumentality.
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“Knowledge of the dangerous character of a thing is only the equivalent of foresight of the way in which it will act. If the thing is generally supposed to be universally harmless, and only a specialist would foresee that in a given case it would do damage, a person who did not foresee it and who had no warning would not be held liable for the harm____”
The majority of the court below held that there is nothing in the Dog Law of May 11, 1921, P.L. 522, as amended by the Act of May 6, 1927, P.L. 833, that rendered defendants liable to the plaintiff for the injuries inflicted upon him by the former’s dog. That act does not purport to change or affect in any way the rule that an owner’s liability for the vicious acts of his dog cannot be predicated upon ownership alone but it must be based also on an owner’s knowledge of his dog’s viciousness and his failure then to take proper steps to prevent that viciousness displaying itself to the hurt of human beings.

324 Pa. at 459-460, 188 A. 146 (Emphasis added). Thus, it is clear from the Andrews v. Smith ruling, which made specific reference to and discussed Mann v. Weiand, that mere awareness and ownership of a vicious animal does not per se expose one to liability for injuries inflicted absent a failure on the part of the owner to take proper precautions to preclude that viciousness from exhibiting itself. Id.; but see Darby v. Clare F. And R. Co., 111 Pa.Super. 537, 540, 170 A. 387 (1934).

More recently, this Court in Miller v. Hurst, 302 Pa.Super. 235, 448 A.2d 614 (1982) (en banc), had reason to decide whether a dog owner who permitted a dog to run free in violation of the Dog Law of 1965, requiring that the dog be restrained, was liable, without further proof of negligence, for injuries caused when the dog bit a child.

We found that the Legislature enacted the statute to protect the public from personal injury, property damage and other hazards created by roving dogs. As a result, we:

... adopt[ed] the requirement of the statute as the standard for determining whether a person ha[d] complied with the common law duty to exercise ordinary care.
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[We went on to hold that, although some states ha[d] gone further and imposed absolute liability for damages caused by roving dogs, we f[ou]nd it improvident and unnecessary to effect such a monumental change without legislative action. The legislature in Pennsylvania [was observed to] ha[ve] enacted a Dog Law which require[d] that owners of dogs prevent their animals from running at large, but it ha[d] not yet imposed absolute liability upon an owner who violate[d] such law. Therefore, we d[id] not usurp the function and prerogative of the legislature. We h[e]ld merely that violation of the legislatively enacted Dog Law is negligence per se. This, we believe[d], [wa]s consistent with the intent of the legislature and also with the holdings of courts of other jurisdictions having similar laws.

Id., 302 Pa.Superior Ct. at 243-244 & n. 8, 448 A.2d at 618-619 & n. 8.

Likewise, the successor to The Dog Law of 1965 makes no provision for imposing absolute liability upon dog owners for failing to keep their dogs confined or controlled; to-wit:

§ 459-305. Confinement of dogs
It shall be unlawful for the owner or keeper of any dog to fail to keep at all times such dog either:
(1) confined within the premises of the owner;
(2) firmly secured by means of a collar and chain or other devise so that it cannot stray beyond the premises on which it is secured; or
(3) under the reasonable control of some person, or when engaged in lawful hunting, exhibition or field training.

The Act of December 7, 1982, P.L. 784, No. 225, Art. Ill, § 305, effective January 1, 1983, 3 P.S. § 459-305 (Supp. 1991); see also Andrews v. Smith, supra.

However, we do not rest our decision upon the absence of any provision in the present and past dog statutes to establish liability premised upon notions of absolute liability, for a person may rely on common law principles, in addition to statutory violations, to establish liability. See Skowronski v. Bailey, 330 Pa.Super. 83, 478 A.2d 1362, 1365 n. 3 (1984). Nonetheless, under either category, be it statute or common law principles, we are convinced that proof of negligence, in contrast to holding one absolutely liable, is the vehicle by which accountability for injury sustained because of a dog bite is to be established. See Andrews v. Smith, supra; Miller v. Hurst, supra.

Therefore, the trial court acted properly in refusing to instruct the jury that absolute liability was established once it was shown that the appellee had knowledge of Smokey’s previous biting of one John Walmer. See Andrews v. Smith, supra; Miller v. Hurst, supra.

The second argument proffered by the appellant suggests that the trial court erred in failing to instruct the jury that a single instance of vicious conduct on the part of a dog is sufficient to put its owner on notice of the dog’s vicious propensities.

Again, we look to Andrews v. Smith, supra, for guidance in responding to the appellant’s assertion; namely, the Court wrote:

“As soon as the owner knows or has good reason to believe that the animal is likely to do mischief, he must take care of him; it makes no difference whether this ground of suspicion arises from one act or from repeated acts. The only restriction is that the act done must be such as to furnish a reasonable inference that the animal is likely to commit an act of the kind complained of"
The minority judge in his dissenting opinion said that the “maxim that ‘every dog is entitled to his first bite’ is not supportable in law or justice.” With this we agree. We do not understand that this maxim has ever found acceptanee in the courts of this Commonwealth. A dog may show ferocious propensities without biting anyone and if he does so, it is his master’s duty to see to it that he is not afforded an opportunity to take a ‘first bite.’
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Animals such as horses, oxen and dogs are not beasts that are ferae nature, i.e., wild beasts, but are classed as mansuetae natura, i.e., tamed and domesticated animals, and their owners are not responsible for any vicious acts of theirs unless the owners have knowledge that they are likely to break away from their normal domestic nature and become vicious. Of all animals, dogs have probably been the longest domesticated and the vast majority of them can be allowed their freedom without imperiling the public safety.

324 Pa. at 458, 459, 188 A. 146 (Emphasis added). Further, in Mann v. Weiand, supra, the Court observed that “one instance [of an attack by a dog] may show such unmistakable evidence of a vicious propensity as to make the owner of the dog, with notice, liable for any subsequent act of a similar character.” 81* Pa. at 254. Accord Fink v. Miller, 330 Pa. 193, 195, 198 A. 666 (1938).

Instantly, the testimony on the question of propensity was equivocal. For example, Shane Burger was told by the appellee of the incident in which Smokey bit a Mr. Walmer. However, he did describe how Mr. Walmer had been observed kicking Smokey on three occasions. During each episode, the dog, according to Shane, “back[ed] down” or “just ... jerked away” and made its way into the backyard with its tail between its legs. The dog never exhibited any signs of viciousness to Shane or Mr. Deardorff.

Also, Shane depicted Smokey as a “kind” animal — like a big puppy dog — who had never “snapped” at the witness or anyone else in its company.

The appellee described Smokey in terms similar to her son’s account, e.g.,

He’s a great dog. He has a great personality. He’s actually very timid. If he does anything wrong, he’s the kind of dog that if he does something wrong he’ll sit back and put his ears back____” [N.T. 69]

Smokey had played with other children without “any difficulties” and the animal was considered “just ... part of the family”. In light of the preceding, the trial court gave the following charge to the jury:

... an important thing for you to decide is whether this dog, Smokey, had vicious propensities. The dictionary defines propensity as being an intense and often urgent natural inclination to do something. Therefore, in considering whether the dog has a propensity towards violence, you must determine whether the dog had an intentional and often urgent natural inclination to be vicious. It’s the Plaintiff's burden to prove that the Defendant was negligent, and a part of that in this case is that this dog Smokey had dangerous propensities.
Even if you find that Smokey was a dog with vicious or dangerous propensities, the Plaintiff must establish that Defendant Carol Miller knew that, that she had knowledge that her dog had those propensities. No matter how innocent the victim may be or how serious the injury sustained, the owner of the dog is not responsible for the consequences of the dog’s bite if she has no reason to know the viciousness or dangerous propensities of the dog. [N.T. 85-86]

Consistent with the precepts espoused by the Court in Andrews v. Smith, supra, and Mann v. Weiand, supra, we find that, because of a lack of evidence concerning the circumstances surrounding the Walmer incident, it would have been improper for the trial court to have advised the jury, in unqualifying terms, that a single bite on a prior occasion was sufficient to put the appellee on notice of Smokey’s alleged “vicious” propensity. See Fink v. Miller, supra.

Accordingly, since the appellant did not prove that Smokey had unmistakable vicious tendencies known to the appellee, from the single bite of Mr. Walmer, she failed to make out a case warranting the single-bite instruction. Id.

As to the last of the appellant’s averments, we adopt the rationale of the lower court in response thereto as appropriate and proper under the facts and law; to-wit:

Finally, the plaintiff contends that the Court erred in refusing to instruct the jury that the negligent acts of one co-owner of a dog may be imputed to the other co-owner of that dog. The plaintiff asserts that the Court should have told the jury that when individuals are engaged in a common enterprise, a mutual relationship of agency is created among them and that a finding of negligence regarding one of them will be imputed to the other. The plaintiff cites DeVillars v. Hessler, 363 Pa. 498, 70 A.2d 333 (1950) in support of this argument. The plaintiff concludes that such an instruction was warranted because the defendant and her son, Shane, were co-owners of “Smokey.” Actually, in the present case, there was no allegation in the complaint that the defendant and her son were co-owners of the dog, or that the son was negligent. The testimony did establish the premise that mother and son were co-owners. Legally, the DeVillars case is no authority for the premise that one negligent owner of a dog makes the other owner responsible and we are satisfied now, as we were at the trial, that the suggested instruction was not proper in this case.

Lower Court Opinion at 8.

From our review of the evidence against the backdrop of the applicable law, we find that the jury’s verdict was proper, and no error was committed by the trial court to justify the grant of a new trial.

Order affirmed.

      . The June 26, 1991, order was reduced to judgment on July 11, 1991, and, thus, is appealable. Pa.R.App.P. 301(c).

      . The Act of December 22, 1965, P.L. 1124, Art. VII, § 702, 3 P.S. § 460-702, repealed by The Dog Law of 1982, December 7, P.L. 784, No. 225, Art. I, § 101, 3 P.S. § 459-101 et seq. (Supp.1991).

      . A dog owner may always show that his or her dog escaped despite the exercise of due care. In such case, the roving of the dog would not constitute negligence.