author: KELLY, Judge:

text:
    545 A.2d 1372
    COMMONWEALTH of Pennsylvania v. Mark Joseph FERRARI, Sr., Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 30, 1987.
    Filed July 1, 1988.

      Ronald H. Elgart, Levittown, for appellant.
    Shawn Markey, Assistant District Attorney, Doylestown, for Com., appellee.
    Before BECK, KELLY and POPOVICH, JJ.
   KELLY, Judge:

Appellant, Mark Joseph Ferrari, appeals from judgment of sentence imposed following his conviction of various offenses relating to his telephonic harassment and physical assault of his estranged wife. On appeal, appellant contends that he was improperly denied a preliminary hearing as the result of the trial court’s misapplication of Pa.R. Crim.P. 231(a), illegally seized evidence was improperly admitted under the plain view exception, and the evidence was insufficient to sustain his conviction for carrying a firearm without a license. We affirm judgment of sentence.

FACTS AND PROCEDURAL HISTORY On October 25, 1985, appellant’s wife removed herself and her one year old child from the marital home in Bell-mar, New Jersey and moved to her parent’s home in War-minster, Pennsylvania. The marital separation was not amicable.

Between October 25, 1985 and November 11, 1985, appellant made twelve or more calls to his wife at her parent’s home; approximately one half of the calls involved threats of violence. On November 11, 1985, appellant made twelve more calls. Again, the majority contained threats of violence directed at his estranged wife and her family. These incidents were reported to the police by appellant’s wife on October 29, 1985 and November 11, 1985.

On November 19, 1985, appellant drove to Warminster in his aunt’s car, parked at the bottom of the street where his wife’s parents lived and later drove by the house. He was recognized by his wife despite the fact that he was wearing a distinctive yellow clown’s wig in an apparent attempt to disguise his identity.

On November 20, 1985, at 8:40 A.M., appellant kicked open the locked front door of his wife’s parent’s home in Warminster. While appellant’s wife frantically called the police, appellant struggled with his sister-in-law for control of his one year old son. Moments later, appellant’s wife hung-up the phone and entered the fray. Appellant’s sister-in-law broke free and fled with the child to the relative safety of the second floor of the house.

Appellant’s wrath was then focussed upon his estranged wife. First, he picked her up and threw her into a door, knocking the door off its tracks. As she attempted to escape from him, he grabbed her by the throat and told her he was going to kill her. Somehow, she managed to escape his grasp and flee out the front door. She ran, with appellant following close behind, to a neighbor’s house. She rushed in an unlocked door, locked the door, and yelled for her neighbor to call the police. Appellant briefly pounded on the door demanding admission, but then fled upon hearing the sirens of the approaching police. His attempt to flee was unsuccessful.

Shortly after appellant’s arrest, a car matching the description given of the car involved in the drive-by incident on November 19, 1985, was discovered in a nearby post-office parking lot. Visual observation through the car’s windows revealed that part of a yellow clown’s wig was sticking out from under the driver’s seat. Based upon the current incident and information received from a fellow police officer concerning a pending warrant and the substance of the appellant’s wife’s prior police reports, the investigating officer concluded that the wig might be evidence of a crime and so he proceeded to open the car door to get a better view of the wig. Without moving the wig, the officer observed a .38 caliber revolver which was with the wig under the driver’s seat. The gun and the wig were later seized when the detectives assigned to the case impounded the car and inventoried its contents.

Subsequently, appellant acknowledged that he was the driver of the car searched. Appellant claimed that the New Jersey police had returned his “off-duty weapon” to him on November 19, 1985, that he had placed it in his aunt’s car, but that he had forgotten the gun was in the car when he drove to Pennsylvania the next day. (Appellant’s Brief at 10). It is undisputed that appellant was suspended from the New Jersey State Police at the time of these incidents and that he had no license to carry a firearm in Pennsylvania.

Appellant was charged on November 20, 1985, with burglary, criminal trespass, simple assault, harassment by communication and related offenses. For reasons not apparent from the record certified to this Court, the original charges were dismissed on December 30, 1985. The charges were refiled, however, on January 2, 1986, and a new arrest warrant was issued.

Appellant had by that time returned to his home in New Jersey. Appellant’s pre-trial motion to quash the informations filed against him asserted the following additional facts which are uncontested by the Commonwealth. The new arrest warrant was orally communicated to the New Jersey police who then arrested appellant. Appellant was brought before a New Jersey magistrate and released on five hundred dollars bail. The Pennsylvania warrant was then transmitted to New Jersey. Upon review of the warrant, the New Jersey prosecutor concluded that the warrant could not be enforced in New Jersey. The warrant was returned undelivered.

The record discloses that when appellant failed to return to Pennsylvania for the preliminary hearing scheduled for February 13, 1986, he was declared a fugitive from justice. On March 4, 1986, the Commonwealth was granted leave to file an information against appellant pursuant to Pa.R. Crim.P. 231(a). After the information was filed, arraignment was set for March 14, 1986. Appellant again failed to appear and a bench warrant was issued for his arrest.

On March 17, 1986, the Commonwealth initiated proceedings under the Uniform Criminal Extradition Act, 42 Pa.C. S.A. §§ 9121 et seq., to extradite appellant. A requisition request was filed with our Governor pursuant to 42 Pa.C. S.A. § 9144, and approved in accordance with 42 Pa.C.S.A. § 9143. Our Governor’s formal requisition was then transmitted to the Governor of New Jersey. Rather than continue to resist extradition via habeas corpus proceedings in New Jersey, appellant elected to return to Pennsylvania. See N.J.S.A. § 2A:160-30 (Waiver and Voluntary Return).

Upon return, appellant filed motions to quash the informations against him and suppress certain evidence. Those motions were denied. Appellant was then tried in a bench trial and convicted of felonious criminal trespass, carrying a firearm without a license, simple assault, and harassment by communication. At sentencing, appellant testified that his divorce was final and custody matters had been resolved. He concluded his statement to the sentencing court as follows:

I’m embarrassed for what happened. I ruined the rest of my life for the acts of one day. I don’t want to go to jail.

Appellant was sentenced to twenty-three months probation. This timely appeal follows.

I.

Appellant first contends that the trial court erred in failing to quash the informations filed against him. He argues that “good cause” under Pa.R.Crim.P. 231(a) was not established so as to justify proceeding without a preliminary hearing. Appellant argues further that the denial of a preliminary hearing prejudiced him by denying him the discovery benefits incident to preliminary hearings. Appellant concludes that because the informations against him should have been quashed, we must reverse his convictions.

The Commonwealth responds that “good cause” existed to permit the filing of informations against appellant pursuant to Pa.R.Crim.P. 231(a). The Commonwealth argues that good cause existed in that appellant was a fugitive and that an information against appellant was necessary to expedite the extradition process. The Commonwealth argues alternatively that even if appellant was improperly denied a preliminary hearing he was not prejudiced by the denial.

The trial court expressed reservations about treating a defendant who is actively fighting extradition from a sister state as a “fugitive,” but nonetheless concluded that appellant’s fugitive status was sufficient “good cause” to permit the Commonwealth to proceed under Pa.R.Crim.P. 231(a). The trial court opined that forcing appellant to choose between enjoying the discovery benefits of a preliminary hearing and fighting extradition did not offend due process, as no prejudice was shown to have arisen from the denial of a preliminary hearing.

We find that appellant was improperly denied a preliminary hearing in this case. However, we also find that appellant suffered no prejudice as the result of that error. Therefore, we find no basis to quash the information or grant other relief. Our reasoning follows.

A.

Despite the trial court’s understandable misgivings, appellant was unquestionably a “fugitive from justice” as that phrase is used in extradition law. Undeniably, the phrase ordinarily calls to mind an image of one who, having committed a crime and anticipating detection and arrest, flees from the jurisdiction to escape punishment. See Webster’s Ninth New Collegiate Dictionary 496 (1983); Black’s Law Dictionary 604 (5th ed. 1979); 1 Bouvier’s Law Dictionary 1321 (Rawle rev. 1914). Nonetheless, it is well-settled that a person is a “fugitive from justice” if the person charged with an offense was present in the charging state when the offense was committed and thereafter leaves the charging state, regardless of the reasons or motives for the exodus. See Commonwealth ex rel. Smal ley v. Aytch, 247 Pa.Super. 23, 27-28, 371 A.2d 1018, 1020-21 (1977) (collecting cases); see also Murphy, Revising Domestic Extradition Law, 131 U.Penn.L.R. 1063, 1111-12 (1983).

Participation of a fugitive in the extradition process by appearing for proceedings in the state from which extradition is sought does not alter the fugitive’s status as a fugitive. The purpose of the procedural safeguards of the Uniform Criminal Extradition Act is not to legitimize the resistance of fugitives to lawful extradition, but to prevent wrongful detention and rendition to a demanding state of persons mistakenly believed to be subject to extradition. The fugitive has no “right” to fight extradition; rather, he benefits indirectly from the safeguards afforded to ensure the liberty of non-fugitives. Only return to the demanding state to answer the charges pending can alter an actual fugitive’s status as a fugitive. Thus, appellant was in fact a fugitive when leave was granted to the Commonwealth to file an information against appellant pursuant to Pa.R. Crim.P. 231(a), without conducting a preliminary hearing, despite the fact his whereabouts in New Jersey were known and he was participating in extradition proceedings in New Jersey.

B.

The trial court concluded that appellant’s fugitive status alone was sufficient “good cause” under Pa.R. Crim.P. 231(a) to permit the filing of an information against appellant and to deny appellant a preliminary hearing. In this the trial court erred.

Prior to 1979, Pa.R.Crim.P. 231 permitted, inter alia, the filing of an information against a defendant anytime a preliminary hearing could not be held because “the defendant cannot be found in the Commonwealth.” See e.g. Commonwealth v. Boyle, 470 Pa. 343, 353-355, 368 A.2d 661, 666-667 (1977). The breadth of the pre-1979 rule was necessitated by the requirement of an indictment or information in order to toll a statute of limitations and to commence formal extradition. However, by 1979 these justifications for denying defendants the benefit of a preliminary hearing had been greatly reduced or removed. See Report, 9 Pa.Bull. 236, 236-39 (Pa.R.Crim.P.Comm., January 20, 1979). The Pennsylvania Rules of Criminal Procedure Committee succinctly summarized its position regarding the prior rule as follows:

[CJhanges in the law have resulted in a situation where, in most instances, indictment/information is no longer necessary in order to toll the statute of limitations or to effect extradition of the defendant. Therefore, the Committee believes that the Rule 224/231 provision which authorized bypass of the preliminary hearing where 'the defendant cannot be found in the Commonwealth,’ has become overly broad.

9 Pa.Bull. at 237. Because, however, an exceptional case might arise where the statute of limitations or extradition might yet present a problem (as where a sister state had not adopted the Uniform Criminal Extradition Act) the Committee concluded that the bypass procedure should not be repealed altogether. 9 Pa.Bull. at 238. Instead, the committee proposed that the rule be amended to provide as follows:

Rule 231. Presentation of Information without Preliminary Hearing
(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing.

(Emphasis added). The Committee also proposed the following Comment to the proposed rule:

Comment: The prior language of the rule, permitting use of this bypass procedure where the defendant cannot be found in the Commonwealth, was deleted in light of changes in law simplifying the process for obtaining custody of the defendant. It is intended that use of the bypass procedure as set forth in paragraph (a) will be limited to exceptional circumstances.

(Emphasis added). Our Supreme Court adopted the Committee’s proposal without change.

As noted in Commonwealth v. Costello, 301 Pa.Super. 537, 448 A.2d 38 (1982), though neither the Comment to Pa.R.Crim.P. 231 nor the Committee’s report control our construction of Pa.R.Crim.P. 231(a), they are nevertheless “effective aids” in construing the rule. 448 A.2d at 40. Moreover, in Costello we expressly held that Pa.R.Crim.P. 231(a) was in fact intended to be restricted to exceptional cases. 448 A.2d at 41.

The order granting the Commonwealth leave to proceed under Pa.R.Crim.P. 231(a) in the instant case stated that it was granted based upon “other good cause as per the attached affidavit.” (Emphasis added). The attached affidavit averred:

1. A written criminal complaint was signed against the defendant.
2. An arrest warrant was issued.
3. The warrant was returned undelivered.
4. The whereabouts of the defendant are unknown to the Commonwealth.
5. The defendant was declared a fugitive by the District Justice.

The fourth averment is acknowledged by the Commonwealth to have been false at the time it was made. There is no indication in the record certified to this Court that the averments of the Commonwealth were orally supplemented at the ex parte hearing on March 4, 1986. Hence, the issue of whether Pa.R.Crim.P. 231(a) properly applied in the instant case depends upon whether fugitive status standing alone constitutes “good cause” under Pa.R.Crim.P. 231(a) as amended.

In Commonwealth v. Costello, supra, we approached but did not reach this issue because the record in Costello did not contain sufficient evidence to establish that the defendant was in fact a fugitive. In this case, no such circumstances cloud our analysis. Appellant was unquestionably a fugitive. (Discussed, supra). Moreover, it is equally clear that no statute of limitations problem existed. See Commonwealth v. Mascitti, 368 Pa.Super. 454, 458, 534 A.2d 524, 526 (1987) (accused’s continued absence from the Commonwealth tolled statute of limitations regardless of reason(s) for the absence). Thus, the only arguably “exceptional circumstance” presented was the alleged need to have an information filed in order to expedite extradition proceedings and thereby protect the Commonwealth’s interests in bringing defendant to trial before memories faded and evidence was forever lost. (Appellant’s Brief at 13-14). While the Commonwealth’s interests in this respect are substantial, we cannot agree that filing an information under Pa.R.Crim.P. 231(a) was necessary to protect those interests in this case.

When it was first discovered that appellant was in New Jersey and did not intend to return for the preliminary hearing on the refiled charges, the Commonwealth properly contacted the New Jersey authorities who then arrested appellant. Pursuant to New Jersey law, appellant was taken before a New Jersey magistrate and then released on five hundred dollars ($500.00) bail. See N.J.S.A. § 2A:160-21 (Arrest of Accused Before Requisition Made); N.J.S.A. § 2A:160-22 (Arrest of Accused Without Warrant [before Requisition Made]); cf. 42 Pa.C.S.A. §§ 9131, 9135.

However, the Commonwealth thereafter failed to seek a Governor’s requisition in Pennsylvania. Instead, the Commonwealth forwarded to New Jersey officials the Pennsylvania arrest warrant without an accompanying Gover nor’s requisition. Under New Jersey law, formal extradition cannot be made without a Governor’s requisition from the demanding state. N.J.S.A. § 2A:160-14; accord 42 Pa.C.S.A. § 9124.

The Commonwealth argues in their brief to this Court that:

Appellant was properly declared a fugitive on February 13, 1986, when he refused to attend his preliminary hearing [and return] from New Jersey.
The only resourse [sic] available to the Commonwealth to secure appellant’s presence was through extradition per governor’s warrant. In order to expidite [sic] this procedure, it was necessary to have a bench warrant issued by the Court of Common Pleas. Therefore, the District Attorney filed an information pursuant to Rule 231 and a bench warrant issued when appellant failed to appear for arraignment on the information. Thereafter, the District Attorney commenced proceedings to obtain the Governor’s Warrant.

(Commonwealth’s Brief at 13) (emphasis added).

Upon review of the controlling statutes (the Uniform Criminal Extradition Act as adopted in Pennsylvania (requisition) and New Jersey (rendition)), we see no reason why the Commonwealth should have delayed its request for a Governor’s requisition until an information was filed and a bench warrant was issued. The Pennsylvania statute regarding requests for a Governor’s requisition provides in pertinent part:

42 Pa.C.S.A. § 9144. Issuance of requisition (a) Return of accused. — When the return to this Commonwealth of a person charged with crime in this Commonwealth is required the prosecuting attorney shall present to the Governor his written application for a requisition for the return of the person charged, in which application shall be stated the name of the person so charged, the crime charged against him, the approximate time, place and circumstances of its commission, the state in which he is believed to be, including the location of the accused therein at the time the application is made, and certifying that in the opinion of the said prosecuting attorney the ends of justice require the arrest and return of the accused to this Commonwealth for trial, and that the proceeding is not instituted to enforce a private claim. * # * * * *
(c) Procedure. — The application shall be verified by affidavit, shall be executed in duplicate and shall be accompanied by two certified copies of the indictment returned, or information and affidavit filed, or of the complaint made to the judge or issuing authority stating the offense with which the accused is charged, or of the judgment of conviction, or of the sentence.

(Emphasis added). The New Jersey statute regarding acceptance of Governor’s requisitions provides:

No demand for the extradition of a person charged with crime in another state shall be recognized by the governor unless in writing alleging that the accused was present in the demanding state at the time of the commission of the alleged crime, and that thereafter he fled from the state, except in cases arising under section 2A: 160-14 of this title, and accompanied by a copy of an indictment found or by information supported by affidavit in the state having jurisdiction of the crime, or by a copy of an affidavit made before a magistrate there, together with a copy of any warrant which was issued thereon; or by a copy of a judgment of conviction or of a sentence imposed in execution thereof, together with a statement by the executive authority of the demanding state that the person claimed has escaped from confinement or has broken the terms of his bail, probation and parole. The indictment, information, or affidavit made before the magistrate must substantially charge the person demanded with having committed a crime under the law of that state; and the copy of the indictment, information, affidavit, judgment of conviction or sentence must be authenticated by the executive authority making the demand.

(Emphasis added). Neither of the above statutes, nor any other relevant statute or administrative rule of either Pennsylvania or New Jersey, required the issuance of a bench warrant for appellant prior to extradition or provided for expedition of extradition if a bench warrant was issued. To the contrary, the above statutes demonstrate that requisition and rendition could properly have been based upon the complaint and arrest warrant alone.

Because neither indictment, nor information, nor bench warrant was required to extradite the accused from New Jersey, appellant’s status as a fugitive did not constitute an exceptional circumstance so as to come within the “other good cause” provision of Pa.R.Crim.P. 231(a). Hence, we conclude that appellant was improperly denied a preliminary hearing.

C.

In Commonwealth v. Costello, supra, this Court stated: We hold, therefore, that the Commonwealth failed to show the existence of ‘exceptional circumstances’ that would constitute ‘good cause’ under Rule 231, as amended. Where no preliminary hearing has been held and there exist none of the recognized exceptions to the holding of a preliminary hearing, the proper remedy is to quash the information. Commonwealth v. Brabham, 225 Pa.Super. 331, 309 A.2d 824 (1973).

In view of our disposition of the Rule 231 question, we do not need to reach the other issues raised by appellant in this appeal.

The judgment of sentence is reversed, appellant’s conviction is vacated, the information is quashed and appellant is discharged.

448 A.2d at 41. Appellant seeks identical relief.

Succinctly, we find that despite the holding in Costello, not every denial or abridgement of an accused’s right to a preliminary hearing warrants reversal and discharge following an otherwise fair trial and conviction. In Commonwealth v. Emmett, 274 Pa.Super. 23, 417 A.2d 1232 (1979), this Court declined to grant a defendant discharge following his conviction where the violation of Pa.R.Crim.P. 231 was technical and the defendant had not demonstrated any prejudice arising from the violation. Likewise, in Commonwealth v. Ruza, 511 Pa. 59, 511 A.2d 808 (1986), our Supreme Court held that it was unnecessary to decide whether “good cause” to proceed under Pa.R.Crim.P. 231(a) had been established, as any error in that regard would be deemed harmless in that the pre-trial he&ring conducted in that case provided procedural protections equivalent to a preliminary hearing.

Similarly, this Court has held on several occasions that the denial of counsel at the preliminary hearing stage will not require post-conviction relief unless actual prejudice is shown to have arisen from the denial of counsel. See Commonwealth v. Bennie, 352 Pa.Super. 558, 508 A.2d 1211 (1986); Commonwealth v. Bastone, 321 Pa.Super. 232, 467 A.2d 1339 (1983); Commonwealth v. Rines, 247 Pa.Super. 429, 372 A.2d 901 (1977). Indeed, the requirement that a defendant must show both error and prejudice to warrant relief is the general rule in criminal appeals. See e.g. Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987) (violation of Pa.R.Crim.P. 130(d) does not require relief in absence of actual prejudice arising from the violation); Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987) (error by prior counsel does not require relief in absence of actual prejudice arising from the error).

Based on the foregoing, we conclude that appellant herein must demonstrate prejudice arising from the violation of Pa.R.Crim.P. 231(a) before reversal of his convictions and discharge would be required or appropriate.

D.

When appellant finally returned to Pennsylvania and entered an appearance to answer the charges against him, he was then entitled to a preliminary hearing. Had one been granted at that juncture, our inquiry would be at an end. Instead, appellant was given hearings on his motions to quash the informations and suppress evidence and then released on bail pending commencement of trial the following day. Trial commenced and was completed on the following day. It is thus apparent that the principal function of a preliminary hearing, i.e. to protect the individual from unlawful detention and coercive interrogation, was not compromised. See Commonwealth v. Douglass, 372 Pa.Super. 227, 238, 539 A.2d 412, 418 (1988); citing Commonwealth v. Duncan, 514 Pa. 395, 406, 525 A.2d 1177, 1180-81 (1987). Appellant was never detained in Pennsylvania prior to his conviction; rather, he appeared already accompanied by counsel, was promptly released on bail, and was brought to trial one day later.

The only prejudice which appellant alleges is as follows: Had Appellant been afforded the preliminary hearing, he would have been aware of the existence of the record of phone calls authored by one or both of the ‘victims’ and would have been able to call the correct witness for impeachment. Further, at the suppression hearing he would have been aware of the claimed existence of a prior arrest warrant (upon which the search was premised), and would have been able to contest its existence by subpoenaing it.
In Coleman v. Alabama, 399 U.S. 1, 9 [90 S.Ct. 1999, 2003, 26 L.Ed.2d 387] (1970), the United States Supreme Court held that the preliminary hearing is a ‘critical stage’ in that it provides discovery that may not be uncovered otherwise. Through it’s abuse of the bypass procedure, the prosecution robbed the defense of this opportunity, resulting in prejudice to the Appellant.

(Appellant’s Brief at 14-15). Neither assertion demonstrates actual prejudice to appellant arising from the denial of a preliminary hearing.

The first assertion alleges that had a preliminary hearing been held, appellant would have been able to present an unspecified witness to present unspecified impeachment evidence. In the absence of affidavits outlining proposed testimony or at least an offer of proof regarding the source and nature of the evidence not discovered or used, any claim of prejudice relating to such evidence must be rejected as being too vague and speculative. Cf. Kitrell v. Dakota, 373 Pa.Super. 66, 74-76, 540 A.2d 301, 305-06 (1988) (no prejudice demonstrated when appellant failed to disclose specific evidence not discovered or used which allegedly would have aided his case); see also Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Petras, 368 Pa.Super. 372, 382, 534 A.2d 483, 488 (1987); Commonwealth v. Stinnett, 356 Pa.Super. 83, 88, 514 A.2d 154, 157 (1986).

The second assertion alleges that the failure to permit a preliminary hearing denied appellant the opportunity to challenge the existence of the alleged prior warrant relating to the prior incidents of harassment by subpoenaing the warrant. Although it is true that appellant was precluded from subpoenaing the warrant or otherwise challenging its existence, it was not the absence of a preliminary hearing which precluded the inquiry. Rather, appellant’s request for a continuance to subpoena the warrant was denied by the trial court during the suppression hearing on relevancy grounds. (N.T. 5/5/86 at 23-24). We find no prejudice arising from the denial of an opportunity to secure and present evidence which the trial court has specifically determined to be irrelevant.

As no actual prejudice arose from the improper denial of a preliminary hearing in this case, we reject appellant’s first contention on appeal. We note, however, that in the future, fugitives should ordinarily be extradited without recourse to Pa.R.Crim.P. 231(a) and that a preliminary hearing should be held promptly upon return of the accused from a rendering state. Only when, for some exceptional reason, extradition may not be accomplished without the filing of an information should Pa.R.Crim.P. 231(a) be deemed applicable.

II.

Appellant next contends that the trial court erred in concluding that evidence derived from a warrantless search of the car which appellant drove to the scene of the crime was admissible at trial under the plain view exception. Appellant argues that the search of the automobile was illegal because: 1) the Commonwealth failed to produce the prior warrant upon which the probable cause predicate for the plain view exception search was allegedly based; and 2) neither of the crimes suspected was a felony. We find no merit in either contention.

A.

Generally, a subjective expectation of privacy as to that which is located in an area of common access will be deemed to be unreasonable; and therefore, visual observation of evidence located in open view in an unprotected area does not constitute a search so as to trigger Fourth Amendment protections. Commonwealth v. Chiesa, 329 Pa.Super. 401, 406-07, 478 A.2d 850, 853 (1984) (no search when police officer shined flashlight and looked into car which was parked unattended in a driveway shared with visitors and fellow tenants); see also I LaFave, Search and Seizure, § 2.2(a) at 322-23 (2nd Ed.1987); Moylan, The Plain View Doctrine, 26 Mercer L.Rev. 1047, 1097-98 (1975). Because there is no search, there is no need for an exception to permit admission of testimony relating to the observation. Hence, such cases may properly be distinguished as relying on an open view or plain view doctrine, rather than the plain view exception as formulated in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2202, 29 L.Ed.2d 564 (1971) (plurality) reh. den. 404 U.S. 874, 92 S.Ct. 26, 30 L.Ed.2d 120 (1971), and refined in its progeny. See I LaFave, Search and Seizure § 2.2(a) at 320-23; Moylan, supra, at 1097-98; Note, “Plain View” — Anything But Plain, 7 Loyola L.Rev. 489, 489 n. 3 (1974).

The plain view exception is ordinarily applicable where there has been a physical intrusion into a protected area prior to the observation of the evidence, or where physical intrusion for a search or seizure follows an initial (non-search) observation from outside a protected area. The orthodox statement of the plain view exception is, that before the police may conduct a warrantless search or seizure of evidence in plain view: the police must be lawfully present at the vantage point from which the evidence is discovered; the discovery of the evidence must be inadvertent; and, the probable evidentiary value of the evidence must be immediately apparent. See generally I LaFave, Search and Seizure § 2.2 at 320-350; Hall, Search and Seizure, §§ 3.9-3.16 at 62-71 (1982 & 1987 Cumm.Supp.).

In the instant case, a police officer looked in the window of an automobile meeting the description of that driven by appellant which was parked in a public lot and saw part of a wig similar to that worn by appellant during an earlier incident reported to the police. No search occurred at this juncture.

The investigating officer commenced his “search” by opening the car door. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347 (1987) (search occurred when stereo in plain view was moved to make a closer examination). This search was justified by the combined effect of the plain view exception and the automobile exception. The officer’s observation was from a lawful vantage point, the discovery of the wig was inadvertent (its location was not known prior to the observation through the window), and its evidentiary value was readily apparent. Though the view of evidence located in plain view within a protected area does not ordinarily justify an intrusion into the protected area to conduct a further search or a seizure of the evidence, the mobility of a motor vehicle is deemed to provide sufficient exigency to warrant such an intrusion even when the accused is in police custody. See Commonwealth v. Baker, 518 Pa. 145, 148-149, 541 A.2d 1381, 1383-84 (1988), affing 347 Pa.Super. 213, 215-18, 500 A.2d 483, 484-85 (1985); Commonwealth v. Milyak, 508 Pa. 2, 7-9, 493 A.2d 1346, 1349-50 (1985). The officer was thus authorized under the plain view exception to open the car door to search (view more closely) or seize (take possession of) the wig. Upon opening the car door to search (view more closely) the wig, the revolver was also lawfully brought into plain view. See Commonwealth v. Burton, 292 Pa.Super. 73, 75-76, 436 A.2d 1010, 1011-12 (1981) (lawful plain view seizure of bag of marijuana on seat of car placed officer in lawful position to make lawful plain view seizure of cocaine which then came into view).

B.

Appellant argues, however, that because the warrant (upon which appellant alleges the investigating officer’s belief that the wig was evidence of a crime was based) was not produced, the order of the suppression court cannot be sustained. Appellant is in error.

The record clearly indicates that the investigating officer never claimed to have seen the prior warrant or to have relied upon it. Rather, the investigating officer expressly relied upon information received from a fellow police officer at roll call on November 20, 1985, concerning the prior warrant and the substance of appellant’s wife’s previous police reports. The information received from the fellow police officer included a description of appellant, the car he drove, and the yellow wig he wore during the earlier incident. (N.T. 5/5/86 at 19-24). We agree with the trial court that the failure to produce the disputed prior warrant was irrelevant to the disposition of the suppression claim, as the Commonwealth's plain view theory did not rely on either the validity or the existence of the disputed prior warrant. (N.T. 5/5/86 at 23-24). We note that in this case reliance by a police officer upon information provided by a fellow police officer was manifestly reasonable. See Commonwealth v. Weidenmoyer, 518 Pa. 2, 12-13 n. 6, 539 A.2d 1291, 1296 n. 6 (1988).

C.

Appellant also contends that the search was illegal because there was not probable cause to believe that the wig was evidence of a felony as opposed to a misdemeanor. In the instant case, we need not pass on the existence of such a limitation, as probable cause to believe the wig may have been relevant evidence in a felony trial clearly existed. Prior to searching the car, the investigating officer was aware that prior harassment complaints had been filed, one of the complaints involved a car and a wig like that discovered “by the officer, and the current incident (which the officer was investigating) involved forcible entry and some kind of assault. (N.T. 5/5/86 at 15-16, 19-21). Thus, the information which the officer had prior to opening the car door indicated that the wig was evidence of a continuing course of criminal conduct which included acts which might constitute felonies. We find that information to be a sufficient predicate of “apparent evidentiary value” to justify a search under the plain view exception; we note that the question of probable cause is one of probabilities, not absolutes. See Commonwealth v. Weidenmoyer, supra, 518 Pa. at 13-14 & n. 7, 539 A.2d at 1297 & n. 7; see also Grano, Probable Cause and Common Sense, 17 U.Mich.J.L.Ref. 465, 465-521 (1984).

III.

Appellant's last contention is that the evidence was insufficient to establish that he possessed the firearm with the requisite intent to sustain the firearms conviction, i.e. that appellant knew the gun was in the car. Appellant acknowledged that he himself had placed the gun in the car the day before the incident in question. He claimed, however, that he had forgotten that he had put it there when he later drove to Pennsylvania. The finder of fact (in this case the trial judge) was free to believe all, part, or none of appellant’s testimony. Under the circumstances of this case, the trial court’s rejection of appellant’s self-serving claim of forgetfulness is sustained by sufficient evidence.

CONCLUSION

Based upon the foregoing, judgment of sentence is affirmed.

BECK, J., concurs in the result.

      . Appellant acknowledges that numerous phone calls were made by • him to his wife during that time period; he claimed, however, that both parties to the conversation "called each other derogatory names and, in general, threatened each other and became vituperative.” (Appellant’s Brief at 7). Similarly, he admits being in his aunt’s car when it was driven past his wife’s parent’s home; but, he claims he was on the floor in the back of the car and that a friend wearing a clown wig was driving. (Appellant’s Brief at 8). The trial court was, of course, free to disbelieve appellant’s assertions and his characterizations of the events in question. On appeal, we review the evidence, as we must, in the light most favorable to the Commonwealth as the verdict winner.

      . See NJ.S.A. 2A:160-18 (right to challenge extradition by habeas corpus).

      . Although the false averment does not affect our disposition of this issue, we join the trial court in admonishing the Commonwealth to guard more closely against making false statements in sworn affidavits. We note that other sanctions besides reversal of convictions may result from such conduct.

      . A Governor’s "requisition" is issued by the demanding state’s Governor and is transmitted to the rendering state with appropriate papers attached (e.g. indictment, information, complaint and affidavit) as a formal request for extradition; a Governor’s "warrant” is issued by the rendering state’s Governor (when the requisition papers are in order) directing the police of the rendering state to arrest the fugitive and to turn the fugitive over to the designees of the Governor of the demanding state. See 42 Pa.C.S.A. §§ 9144, 9124, 9128.

      . The physical seizure of the wig and gun was actually accomplished during the inventory process when the car was impounded. (N.T. 5/5/86 at 20, 29-30). The seizure of the wig and gun during the inventory process has not been challenged on appeal. See Commonwealth v. Martinson, 368 Pa.Super. 130, 533 A.2d 750 (1987) (the constitutionality of inventory searches of impounded vehicle upheld).

      . Appellant attempts to bootstrap a weight of the evidence challenge to the sufficiency argument preserved. The argument has been waived; moreover, it is plainly without merit. Similarly, appellant raises for the first time on appeal the novel question of whether a suspended state trooper of a sister state may claim exemption from the licensing requirement under the "other law enforcement officers” exception set forth at 18 Pa.C.S.A. § 6106(b)(1). Though interesting, we find this claim waived. Pa.R.Crim.P. 1123. While evidence upon which the claim is based was presented in the trial court, the theory advanced on appeal was not. Theories not advanced in the trial court will not be considered on appeal. See Commonwealth v. Johnson, 355 Pa.Super. 123, 140-41, 512 A.2d 1242, 1251 (1986) (citing cases).


source: Caselaw Access Project

license: Public Domain

text:
    545 A.2d 1383
    H. Foster WALTON, III and Gertrude R. Gautier, Appellants, v. PHILADELPHIA NATIONAL BANK, Gateway Foods, Inc. and Gateway Foods of Pennsylvania, Inc., Appellees.
    Superior Court of Pennsylvania.
    Argued Feb. 4, 1988.
    Filed July 22, 1988.

      Joseph E. Greene, Jr., King of Prussia, for appellants.
    Michael J. Collard, Philadelphia, for Gateway, appellees.
    Before BECK, KELLY and JOHNSON, JJ.
   KELLY, Judge:

This is an appeal by plaintiffs, H. Foster Walton, III and Gertrude R. Gautier (hereinafter “appellants”), from the order of June 23, 1987, directing appellee, Philadelphia National Bank (hereinafter “PNB”), to release funds held in escrow to appellee, Gateway Foods, Inc. (hereinafter “Gateway”). We vacate and remand.

A summary of the facts which have led to the instant action is as follows. Gateway acquired Reeves, Parvin & Co. (hereinafter “RPCO”) pursuant to a merger agreement in January of 1986. Proposals for the acquisition of RPCO by Gateway required each RPCO stockholder with more than a five percent (5%) interest in RPCO stock, determined prior to the sale of the corporation, to indemnify Gateway for breach of any representations, warranties, or covenants. To avoid personal stockholder indemnification, RPCO directors proposed the establishment of a $150,000 escrow account from which any claims by Gateway could be paid. Gateway accepted this proposal. PNB was chosen to act as escrow agent under the terms of the agreement reached by the parties.

On December 23, 1986, Gateway mailed a Notice of Claim for funds held in the escrow account pursuant to the terms of the escrow agreement. Gateway mailed “courtesy copies” of its Notice of Claim to appellants and the attorney representing RPCO. Pursuant to the agreement, PNB mailed copies of the Notice of Claim to the appellant stockholder representatives by certified mail on December 31, 1986; Walton received a copy on January 6, 1987, and Gaudier received a copy on January 7, 1987. Appellants mailed notices of dispute to PNB on January 14, 1987. PNB received the notices on January 20, 1987; the escrow agent found that the notices of dispute were untimely.

On February 5, 1987, appellants filed an action in equity against the appellees seeking to enforce their rights under the escrow agreement. Appellants sought a determination by the trial court that the notices of dispute filed by appellants with PNB were timely filed within the terms of the escrow agreement. Appellants further sought to restrain the escrow agent, PNB, from releasing funds held in escrow to Gateway or Gateway Foods of Pennsylvania, Inc. The court granted appellants’ petition for a preliminary injunction against distribution of the escrowed funds.

A hearing was held on February 27, 1987. On April 14, 1987, the trial court issued a decree nisi, directing PNB to release the funds held in escrow to appellee, Gateway. Exceptions were filed and denied and a final decree dated June 23, 1987, was entered on the docket on June 26, 1987. The instant appeal followed.

I.

Appellants’ primary contention on appeal is that the trial court erred in finding appellants’ notices of dispute to Gateway’s claim for escrow funds to be untimely pursuant to the language of the escrow agreement. Appellants argue that the court failed to ascertain the intention of the parties to the contract, thereby misconstruing the contract and further failed to find appellees estopped from claiming the notice to be untimely.

First, however, appellants Gautier and Walton argue that appellees are estopped from claiming that notice of disputes sent to PNB were untimely. Appellants argue that Mr. David Fontello, an officer in the Corporate Trust Department at PNB, the escrow agent, and administrator of the escrow account between Gateway and RPCO, communicated to stockholder representative Gautier, upon her inquiry, that based on his interpretation of the contract, Gautier had ten days following the date that the Notice of Claim was received by her (January 7, 1987) in which to place her Notice of Dispute in the mail to PNB. Gautier allegedly relied upon this interpretation and placed her Notice of Dispute in the mail on January 14, 1987, within the ten-day period. Appellants allege that appellees are now bound by appellants’ detrimental reliance pursuant to the doctrine of estoppel.

Pa.R.A.P. 302(a) states:
(a) General rule. Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.

“The doctrine of waiver has become firmly entrenched in Pennsylvania law and it is clear that on appeal a new and different theory of relief may not be successfully advanced for the first time.” Morgan v. Sbarbaro, 307 Pa.Super. 308, 453 A.2d 598 (1982) (citing cases). We find no evidence in the record that appellants ever raised a claim of estoppel in the court below. We therefore find this contention waived. Consequently, this Court shall address appellants’ primary contention on appeal.

The scope of review of this Court has been set forth as follows:

The scope of appellate review of a decree in equity is particularly limited and such a decree will not be disturbed unless it is unsupported by the evidence or demonstrably capricious. Daley v. Hornbaker, 325 Pa.Super. 172, 472 A.2d 703 (1984); Lynch v. Hook, 298 Pa.Super. 27, 444 A.2d 157 (1982). The test is not whether we would have reached the same result on the evidence presented, but whether the judge’s conclusion can be reasonably drawn from the evidence. In re Estate of Tippins, 487 Pa. 107, 408 A.2d 1377 (1979); Hoffman v. Gekoski, 250 Pa.Super. 49, 378 A.2d 447 (1977).
* # * * sjc *
The findings of the chancellor will not be reversed unless it appears that he clearly abused his discretion or committed an error of law. [Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981).]

Lombardo v. DeMarco, 350 Pa.Super. 490, 495, 504 A.2d 1256, 1258 (1985). We shall therefore set forth the findings of the trial court, review the evidence and determine whether the conclusion drawn by the court below was a reasonable one.

II.

First, we shall set forth the relevant portions of the escrow agreement in question.

3. Release and Disbursement of Amounts in Escrow Account.
The amounts in the Escrow Account from time to time shall be released and disbursed by the Escrow Agent in the manner and under the circumstances hereinafter specified:
(a) Gateway may at any time and from time to time prior to February 1, 1988 furnish to the Escrow Agent a notice, substantially in the form of Exhibit A attached hereto, with blanks appropriately completed, to the effect that Gateway is asserting one or more claims for indemnification by RPCO in amounts exceeding, on a cumulative basis, $25,000. Any such notice shall contain a brief description of each asserted claim for indemnification, including a description of the circumstances giving rise to the right of indemnification, and the amount of the indemnity payment in respect of each such claim to which Gateway asserts entitlement. Upon receipt of any such notice (a ‘Notice of Claim’), the Escrow Agent shall examine the same for substantial compliance with the requirements of this Agreement and shall promptly thereafter furnish a copy of such notice to RPCO and both Stockholder Representatives. If the Escrow Agent shall not have received from either Stockholder Representative, prior to the tenth calendar day following the date on which such notice was delivered to the Stockholder Representatives, a written notice of the type contemplated by subsection (b) of this paragraph 3, the Escrow Agent shall withdraw from the Escrow Fund and pay to Gateway by check an amount equal to the lesser of (i) the aggregate of the claims asserted in the Notice of Claim or (ii) the balance in the Escrow Account on the date of payment. Any claim set forth in a Notice of Claim that is not specifically disputed in a written notice from either or both of the Stockholder Representatives of the type contemplated by subsection (b) of this paragraph 3 shall be paid by the Escrow Agent in accordance with the preceding sentence, even though a Notice of Dispute might otherwise have been received by the Escrow Agent with respect to other claims set forth in the Notice of Claim.
(b) The Stockholder Representatives may deliver to the Escrow Agent, at any time after the Stockholder Representatives’ receipt of a Notice of Claim and prior to the tenth calendar day following such receipt, a written notice, in substantially the form of Exhibit B hereto with blanks appropriately completed, to the effect that either or both of the Stockholder Representatives dispute the fact or amount of any one or more of the claims asserted in the Notice of Claim. In the event the Escrow Agent shall receive any such notice from either Stockholder Representatives [sic] (herein a ‘Notice of Dispute’) within such ten day period, the Escrow Agent shall (i) examine the same for substantial compliance with the requirements of this Agreement, (ii) promptly thereafter furnish a copy of such Notice to Gateway, and (iii) refrain from making any disbursement of any amount disputed in the Notice of Dispute from the Escrow Fund until the claims and disputes described in the Notice of Claim and Notice of Dispute have been resolved. For purposes of this subsection (b), the dispute of a claim shall be deemed to be resolved upon the occurrence of any of the following events:
(1) Gateway and the Stockholder Representatives execute and deliver to the Escrow Agent a written agreement setting forth the resolution of such claim, in which case the Escrow Agent, upon receipt of such agreement, shall withdraw from the Escrow Fund and pay to Gateway by check an amount equal to the amount to which Gateway is entitled under such agreement;
(2) Gateway and both Stockholder Representatives have not executed and delivered to the Escrow Agent a written agreement setting forth the resolution of such claim, and neither Stockholder Representative has responded to the notice of and demand for arbitration filed by Gateway within the time period set forth in such notice, in which case, upon the expiration of such time period, and within ten (10) days after receipt by the Escrow Agent of an affidavit from Gateway certifying that it has not received any response by either Stockholder Representative, the Escrow Agent shall withdraw from the Escrow Fund and pay to Gateway by check an amount equal to the amount of such claim; or
(3) A final judgment is entered by the arbitrators in the arbitration proceeding regarding such claim, in which case either party may give notice to the Escrow Agent by delivering to the Escrow Agent and the other party a copy of such judgment, and within ten (10) days after the receipt thereof by the Escrow Agent, the Escrow Agent shall withdraw from the Escrow Fund and pay to Gateway by check an amount equal to the amount to which Gateway is entitled under such judgment.

(Escrow Agreement at 3-5, R.R. 28a-31a).

12. Notices. Except as otherwise specified herein, all notices or other communications required or permitted to be given under this Escrow Agreement shall be in writing and shall be considered delivered in all respect, when it has been delivered by hand or mailed by certified mail, return receipt requested, first class postage prepaid, addressed as follows:
******
(Escrow Agreement at 15, R.R. 40a). (Emphasis added).

In the Discussion section of its opinion dated April 14, 1987, the court below stated that the “[l]anguage in the Escrow Agreement clearly sets forth the procedure by which a notice shall be considered delivered.” (Trial Ct.Op. at 6). (Emphasis added). The court continued, stating:

Despite the express language in the Escrow Agreement, plaintiffs disingenously [sic] argue that they were entitled to deliver their Notice of Dispute within ten (10) days of actual receipt of the Notice of Claim. They would change the written terms of the Agreement.

(Trial Ct.Op. at 7). (Emphasis in original).

The trial court determined that appellants, Walton and Gaudier, had ten (10) days from December 31, 1986 (the date that PNB mailed copies of Gateway’s Notice of Claim to appellants) in which to deliver a Notice of Dispute to appellee, PNB. The trial court thus concluded that in order to be timely filed, appellants must have placed their Notices of Dispute in the mail by January 9, 1987. Stockholder Representatives Walton and Gaudier mailed their Notices of Dispute on January 14, 1987, five days past the deadline mandated by the court.

III.

An escrow agreement is a contract and is to be interpreted according to contract principles. In construing a contract, the intention of the parties is paramount and the court will adopt an interpretation which under all circumstances ascribes the most reasonable, probable and natural conduct of the parties, bearing in mind the objects manifestly to be accomplished. Village Beer and Beverage, Inc. v.

Vernon D. Cox and Co., Inc., 327 Pa.Super. 99, 475 A.2d 117 (1984). The intent of the parties is to be ascertained from the document itself when the terms are clear and unambiguous. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). However, as our Supreme Court stated in In re Herr’s Estate, 400 Pa. 90, 161 A.2d 32 (1960), “where an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is created by the language of the instrument or by extrinsic or collateral circumstances.” 161 A.2d at 34. (Citations omitted). “If there is not an actual or literal understanding of the contractual obligation, the contract is considered to be that which a reasonable person in similar circumstances would understand the contract to be.” State Automobile Insurance Association v. Anderson, 365 Pa. Super. 85, 89, 528 A.2d 1374, 1376 (1987).

The task of interpreting a contract is generally performed by the court rather than by a jury and the goal of that task is to ascertain the intent of the parties as manifested by the language of the written instrument. Standard Venetian Blind Co. v. American Empire Ins. Co., 503 Pa. 300, 469 A.2d 563 (1983). As stated in Kroblin Refrigerated Xpress, Inc. v. Pitterich, 805 F.2d 96 (3d Cir.1986):

Determining whether contract terms are clear or ambiguous is a question of law, Mellon Bank, N.A. v. Aetna Business Credit, Inc., 619 F.2d 1001, 1011 (3d Cir.1980), and review of this issue is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 102 (3d Cir.1981). In making the ambiguity determination, a court must consider the words of the argument, alternative meanings suggested by counsel, and extrinsic evidence offered in support of those meanings. Mellon Bank, 619 F.2d at 1011.

Kroblin, at 101 (3d Cir.1986). Not only did the trial court in this instance fail to provide a full review of the terms of the agreement regarding the ambiguity and the intention of the parties, but the court failed to even recognize the existence of an ambiguity. We are thus unable to agree with the findings of the trial court.

IV.

Our review of the escrow agreement reveals that an ambiguity does in fact exist. Paragraphs 3(a) and 3(b) contain references to the ten (10) day period within which either or both of the Stockholder Representatives must file a notice of dispute with the escrow agent in response to a notice of claim to escrow funds. Paragraph 3(a) provides that the Stockholder Representative’s response must occur “prior to the tenth calendar day following the date on which such notice was delivered to the Stockholder Representatives.” (Escrow Agreement at p. 4). (Emphasis added). Paragraph 3(b), in its reference to the same ten-day period, states that the Stockholder Representative may deliver a notice of dispute, “at any time after the Stockholder Representative’s receipt of a Notice of Claim and prior to the tenth calendar day following such receipt.” (Agreement at 4-5). (Emphasis added). Paragrah 3(b) continues, “[i]n the event the Escrow Agent shall receive any such notice from either Stockholder Representative ... within such ten-day period____” (Emphasis added).

Both sections make reference to the same ten-day period. The ambiguity exists in the interpretation of this ten-day time period and its correlation to when the Notice of Dispute must be “delivered” and/or “received.” In reading paragraphs 3(a) and 3(b) in conjunction with paragraph 12, which attempts to define the term “delivered,” this ten-day period can be interpreted as either ten days from the date the escrow agent placed the notice of claim in the mail or ten days from the date the Stockholder Representative physically received the notice of claim, depending on which paragraph of the escrow agreement one reads. The presence of this ambiguous language is inconsistent with the trial court’s finding that the language of the agreement “clearly sets forth” the procedure for delivery of notices. Although the meaning may seem clear upon inspection of an individual paragraph of the escrow agreement, a written contract should be construed as a whole. Stern v. Vic Snyder, Inc., 325 Pa.Super. 423, 473 A.2d 139 (1984). As a whole, we find the language of this escrow agreement to be ambiguous.

A contract is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. Hutchison v. Sunbeam Coal Cory., 513 Pa. 192, 519 A.2d 385 (1986). This Court may determine the existence of an ambiguity as a matter of law, whereas the resolution of conflicting parol evidence relevant to what the parties intended by the ambiguous provision is for the trier of fact. Where the words used in a contract are ambiguous, the surrounding circumstances may be examined to ascertain the intent of the parties. Greene v. Oliver Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987); allocatur denied, 536 A.2d 1331.

Although the pleadings of the parties clearly denote variant interpretations as to the meaning of “delivered” in the many contexts it is used throughout the agreement, there is nothing of record to indicate that the trial court attempted to learn the intent of the parties as to the interpretation of this ambiguity. It thus remains the duty of the trier of fact to resolve the ambiguity by ascertaining the intent of the parties entering into the agreement. We therefore hold that the trial court erred in ignoring the presence of ambiguous language and interpreting the contract without acquiring testimony on the record as to the intent of the parties in the drafting of the escrow agreement.

CONCLUSION

The trial court erred in failing to find the terms of the Escrow Agreement ambiguous and inconsistent, in giving no effect to the provisions of paragraph 3(b) of said agreement and in failing to consider the intention of the parties.

Accordingly, we vacate the final decree of June 23, 1987 and remand to the trial court for an evidentiary hearing in order to ascertain the intent of the parties and resolve the obvious ambiguity present in the language of the escrow agreement. Appellants’ claim of estoppel is waived. Jurisdiction is relinquished.

      . Reeves, Parvin & Co. merged with Gateway’s subsidiary, Gateway Foods of Pennsylvania, Inc.

      . Gateway asserted two claims of indemnification by RPCO totalling |283,549.86, alleging that RPCO failed to fairly and accurately represent its financial condition.

      . The bank was closed not only Saturday and Sunday, January 17, 1987, and January 18, 1987, but also on Monday, January 19, 1987, Martin Luther King Day.

      . By agreement of the parties, the trial on this matter was consolidated with the hearing on the preliminary injunction.

      . Because this contention has been waived on- appeal, we need not scrutinize appellants’ election to raise this claim as within the theory of promissory estoppel rather than equitable estoppel. See Paul v. Lankenau Hospital, et al., 375 Pa.Super. 1, 543 A.2d 1148 (1988).

      . The sole notes of testimony of the hearing held February 27, 1987 do not relate to the intention of the parties regarding the interpretation of the language of the agreement, but only summarize the events which led to this action.

      . This Court notes that the Final Decree of June 23, 1987 reflects that the trial court “heard argument via a telephone conference call on June 15, 1987.” There is no indication that this call was transcribed so as to preserve this argument for our review.


author: CERCONE, Judge:

text:
    545 A.2d 1390
    COMMONWEALTH of Pennsylvania v. Thomas E. JONES, Appellant.
    Superior Court of Pennsylvania.
    Submitted May 16, 1988.
    Filed Aug. 12, 1988.

      Mark L. Newman, Assistant Public Defender, Stroudsburg, for appellant.
    James F. Marsh, District Attorney, Stroudsburg, for Com., appellee.
    Before OLSZEWSKI, WATKINS and CERCONE, JJ.
   CERCONE, Judge:

This is an appeal from a judgment of sentence in which the sole question for decision is whether the sentencing court deprived appellant of a reconsideration of sentence.

Appellant Thomas E. Jones was arrested and charged on June 4, 1987 with criminal trespass and criminal mischief. On November 4, 1987, appellant entered a plea of guilty to criminal trespass and was sentenced on December 21, 1987 to term of imprisonment of one and one-half (IV2) to three (3) years. Appellant filed on December 28, 1987 a timely motion to reconsider and modify sentence. The trial court scheduled a hearing on the motion for February 6, 1988.

Pennsylvania Rule of Criminal Procedure 1410 provides: “A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence.” Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. Upon the issuance of an order by the sentencing court denying the motion, notice of appeal may be filed. A notice of appeal “shall be filed within 30 days after the entry of the order from which the appeal is taken.” Pa.R. A.P., Rule 903(a), 42 Pa.C.S.A. However, “[t]he failure of the sentencing court to act within the thirty day appeal period will normally result in the loss of the court’s jurisdiction to modify sentence, and will have the same effect as a denial of the motion.” Pa.R.Crim.P., Rule 1410, 42 Pa.C. S.A. comment (emphasis added). See also Pa.R.A.P., Rule 1701(a), 42 Pa.C.S.A. (“[Ajfter an appeal is taken ... the trial court ... may no longer proceed further in the matter.”).

In Commonwealth v. Lee, 278 Pa.Super. 609, 420 A.2d 708 (1980), the appellant filed a timely motion for reconsideration on March 23, 1979 and a hearing was scheduled for April 2, 1979. Subsequently, the hearing was continued until May 15, 1979 and the appellant filed a notice of appeal on April 18, 1979. The sentencing court issued an order on the following day cancelling the hearing. In considering the procedural propriety of the appeal, this Court discerned that “the failure of the trial court to vacate the sentence or take other action within the thirty-day appeal period and the filing of an appeal have the same effect as a denial of the motion.” Id. 278 Pa.Super. at 612, 420 A.2d at 709. See also Commonwealth v. Villaloz, 303 Pa.Super. 518, 521, 450 A.2d 47, 48 (1982) (“The lower court’s failure to act upon the petition within the thirty-day period has the same effect as a denial of the motion.”).

In the matter sub judice, appellant surmised that the sentencing court would lose jurisdiction to reconsider the sentence when it set a hearing on the motion in excess of the thirty (30) day period of appeal. This deduction was correct in that the court’s inaction effectively amounted to a denial of the motion. Although appellant properly and timely brought this appeal, he failed to preserve for our review any challenges on the merits to his sentence. As a result, we are constrained to affirm the judgment of sentence.

      . The filing of a motion for modification of sentence does not extend the period for the filing of a notice of appeal. Commonwealth v. Shurgalla, 371 Pa.Super. 244, 537 A.2d 1390 (1988); Commonwealth v. Quier, 366 Pa.Super. 275, 531 A.2d 8 (1987); Commonwealth v. McCleary, 333 Pa.Super. 443, 482 A.2d 651 (1984); Commonwealth v. Hoskins, 329 Pa.Super. 226, 478 A.2d 45 (1984).
      However, if the court vacates the prior judgment of sentence, either in connection with granting the motion for modification or in order to have additional time within which to consider the motion, such action would have the same effect as an express order granting reconsideration under Pa.R.A.P. 1701. Accordingly, the vacation of sentence within the thirty day period for appeal will render any notice of appeal (either as to the merits of the case or the sentence) inoperative, and the time for filing the notice of appeal will begin to run anew from the date of the decision on the motion, even if the decision ultimately amounts to a reimposition of the prior sentence.
      Pa.R.Crim.P., Rule 1410, 42 Pa.C.S.A. comment.

      . In his motion to reconsider and modify sentence, appellant averred that his "small stature and lack of maturity ... would present a hardship for him in a state correctional facility.” While we believe this claim amounts to an assertion that his sentence was excessive, appellant has neither defined this issue in his concise statement of matters complained of on appeal, Pa.R.A.P., Rule 1925(b), 42 Pa.C. S.A., nor included in his brief any argument as to this issue. This was unfortunate for, as we held in Commonwealth v. Lee, 278 Pa.Super. 609, 420 A.2d 708 (1980), where the trial court failed to act on the appellant’s motion for reconsideration of sentence, “a proper motion raising the issue of the excessiveness of the sentence was filed and denied in the trial court ... [so that] the issue is properly preserved for review.” Id. 278 Pa.Super. at 612, 420 A.2d at 709. In the case before us, appellant’s failure to present his argument on the merits amounts to a waiver of this claim.


author: BECK, Judge:

text:
    546 A.2d 62
    FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF PITTSTON now known as Franklin First Federal Savings and Loan Association of Wilkes-Barre, Appellee, v. Anthony REGGIE and Jennie Rose Reggie, His Wife, Appellants.
    Superior Court of Pennsylvania.
    Argued March 2, 1988.
    Filed June 27, 1988.
    Reargument Denied Aug. 26, 1988.

      Andrew J. Primerano, Bloomsbury, for appellants.
    David B. Hiscox, Wilkes-Barre, for appellee.
    Before BROSKY, BECK and CERCONE, JJ.
   BECK, Judge:

In this case we decide under what circumstances sureties may be discharged from their obligation to a creditor where the sureties allege the creditor has impaired the collateral of the sureties.

The underlying action in this case is one of foreclosure, based on a mortgage made by the appellants, Anthony Reggie and his wife Jennie Rose (“the Reggies”), in favor of appellee bank dated January 17, 1980. The Reggies claimed below that the mortgage is unenforceable in Pennsylvania since it was induced by fraud and/or misrepresentation and was not supported by consideration. This mortgage was part of a refinancing of an alleged deficiency which resulted from a foreclosure of a related property.

Central to the determination of the validity of the mortgage in this complex case is the question of whether the bank had an obligation to apply the proceeds of the related foreclosure sale in a certain order to the liens on that property. The trial court granted summary judgment to the bank, finding that the bank had no duty to apply the proceeds of the related foreclosure in such a way as to avoid foreclosing on the Reggies’ home. We find that the trial court erred in granting summary judgment to the bank, and remand this case for proceedings consistent with this opinion.

The facts of the case are complex and lengthy. Three properties are involved: 1) 16 Johnson Street (“the Reggies’ home”), which is the residence of the Reggies; 2) 326 Spring Street (“Spring Street property”); and, 3) 620 Luzerne Avenue (“Luzerne Avenue property”). In 1973, the son and daughter-in-law of the Reggies, along with the Reggies, allegedly executed a bond and mortgage in favor of the bank for the amount of twenty-one thousand dollars ($21,000.00) (“Spring Street mortgage”). As admitted by the bank, the purpose of this mortgage and loan was to enable the son and daughter-in-law to purchase and make improvements to the Spring Street property. This mortgage constituted a first lien against the Spring Street property. The bank required additional collateral, however, so the Reggies pledged their home as collateral. This pledge became a third lien on the Reggies’ home. In 1974, the son and daughter-in-law purchased the Luzerne Avenue property for twelve thousand dollars ($12,000.00). Again, the Reggies, with their son and daughter-in-law, executed a mortgage, this time as security for a debt of twenty thousand dollars ($20,000.00) (the increase over the purchase price amounted to a loan for improvements). This mort-’ gage became a first lien on the Luzerne Avenue property and a fourth lien on the Reggie home, which the Reggies once again pledged as collateral.

In 1975, this mortgage on the Luzerne Avenue property was refinanced by the son and daughter-in-law, who executed a bond and mortgage in their names only. As a result, the 1974 Luzerne Avenue mortgage was marked “satisfied” by the bank. The mortgage executed as part of the refinancing (“the 1975 mortgage”) became a first lien against the Luzerne Avenue property and a second lien on the Spring Street property. The amount refinanced was thirty-one thousand dollars ($31,000.00).

In 1978, the bank commenced an action in mortgage foreclosure against the son and daughter-in-law based upon the 1975 mortgage. Judgment in the amount of thirty-five thousand forty dollars and eighty-two cents ($35,040.82) was awarded to the bank. At a subsequent sheriff’s sale, the bank bought both the Spring Street and Luzerne Avenue properties. The bank alleges that the total indebtedness secured by the 1975 mortgage and the Spring Street mortgage was fifty-eight thousand three hundred seventy-seven dollars ($58,377.00). The bank then sold the Spring Street property for twenty-nine thousand nine hundred dollars ($29,900.00) and the Luzerne Avenue property for eighteen thousand dollars ($18,000.00).

Instead of applying the proceeds of the sale of the Spring Street property to the first lien on that property (which was the mortgage that the Reggies signed as sureties), the bank deducted these amounts from the combined indebtedness on the two mortgages and alleged a deficiency of twelve thousand six hundred eighty two dollars and eighty six cents ($12,682.86). The effect of this maneuver was to satisfy the Luzerne Avenue debt first out of the proceeds of the Spring Street sale, i.e., the 1975 mortgage on the Luzerne Avenue property was satisfied. This included satisfying the second lien on the Spring Street property which ♦was created pursuant to the 1975 mortgage on the Luzerne Avenue property. Thus the bank left intact the first lien of the mortgage on the Spring Street property on which the Reggies were sureties, exposing the Reggies’ Johnson Street property to foreclosure for the unpaid debt on the original Spring Street mortgage. The bank claimed that the lien placed on the Reggies’ home pursuant to the Spring Street mortgage was not affected by these foreclosures and sales and threatened to satisfy the deficiency by foreclosing on the Reggies’ home.

In 1980, rather than lose their home, the Johnson Street property, the Reggies executed a mortgage in the amount of thirteen thousand dollars ($13,000.00) to refinance the deficiency and to forestall foreclosure. It is this mortgage which is the subject of the instant foreclosure action.

The Reggies contended below and on appeal that the bank had an obligation to the Reggies to apply the proceeds of the sale of the Spring Street property initially to the first lien on the Spring Street property. This first lien was created by the 1973 mortgage which also placed a third lien on the Reggies’ home. This obligation arose in part, according to the Reggies’, because the Reggies were sureties, with the bank’s knowledge, to the Spring Street transaction. The Reggies contend that the bank was under a duty towards them as sureties not to impair the underlying collateral. The bank violated this duty when it chose to apply the proceeds of the sale of the Spring Street property to the second lien on the property, instead of the first lien. (The source of the second lien was the 1975 Luzerne Avenue property mortgage. The first lien was the original 1973 mortgage on the Spring Street property which the Reggies signed as sureties.) This impairment of the collateral discharged the lien on the Reggies’ home. Since the Reggies then owed no debt to the bank for the deficiency, consideration was lacking for the 1980 mortgage which refinanced the deficiency judgment. Moreover, the Reggies raised claims of misrepresentation and fraud below. The trial court refused to consider the issues of fraud and misrepresentation raised in the Reggies’ counter-motion for summary judgment, claiming that the parol evidence rule precluded consideration of any evidence on these issues.

Rather, the trial court accepted the bank’s argument that the bank’s allocation of the proceeds of the Spring Street sale was proper. The trial court failed to impose upon the bank any duty toward the Reggies as sureties. Instead, the court held that the first lien on the Spring Street property survived the sheriff’s sale. When the bank acquired legal title to the property at the sheriff’s sale, that lien merged with the bank’s title. According to the court and the bank, the lien on the Reggies’ home was not affected. The bank could chose to apply the proceeds of the subsequent sale of the property to the junior lien and to then seek satisfaction on the senior lien by foreclosing on the Reggies’ home.

However, under the undisputed facts as found by the trial court and as admitted by the bank, the Reggies entered the Spring Street transaction in the role of sureties. On appeal, the bank argues that the Reggies signed the mortgage simply as co-makers, and that the Reggies therefore were jointly and severally liable. However, in the bank’s reply to new matter and interrogatory answers, the bank admits that the purpose of the loan was to enable the Reggies’ son and daughter-in-law to purchase the property. The bank also admits that the Reggies allowed the lien to be placed on their home in order to provide additional collateral so that the son could purchase the property. The trial court found that the Reggies pledged their home and signed the bond for the purpose of enabling the son to obtain the loan and that the Reggies’ obligations would arise in the event of a default by the son. It was also undisputed below that the son and daughter-in-law, not the Reggies, received the proceeds of the loan and purchased the Spring Street Property alone. See First National Bank and Trust Company v. Stolar, 130 Pa.Super. 480, 197 A. 499 (1938) (sufficient evidence of suretyship found where party signed note to enable other party to obtain loan, first party received none of the loan proceeds, and bank knew of relationship between the parties.)

The bank’s argument that the mortgage on its face does not reveal the Reggies’ suretyship is meritless. The surety need not designate his or her status on the face of the instrument. Rather, a person can be found to be a surety even if he or she signed the instrument as a co-maker agreeing to be jointly and severally bound. Philadelphia Bond and Mortgage Co. v. Highland Crest Homes, 235 Pa.Super. at 252, 340 A.2d 476 at 479. Parol evidence is admissible to establish that a maker signed as a surety. Philadelphia Bond and Mortgage Company v. Highland Crest Homes, Inc., 221 Pa.Super. 89, 288 A.2d 916 (1972); Stolar, 130 Pa.Super. at 486, 197 A. at 502. The bank, after admitting below that the Reggies lent their name and collateral to their son to enable the son to obtain a loan and purchase a house, cannot now argue on appeal that the Reggies signed as co-makers only.

Since the Reggies were sureties with the bank’s knowledge, certain duties were imposed upon the bank with respect to the Reggies. Stolar, 130 Pa.Super. at 485, 197 A. at 501. The well-settled rule is that, if a creditor surrenders or impairs collateral which serves as security for the principal’s debt, the surety is discharged from his obligation to the extent that the collateral would have produced sufficient funds to pay the debt in whole or in part. Keystone Bank v. Flooring Specialists, Inc., 513 Pa. 103, 114, 518 A.2d 1179, 1185 (1986). By applying the proceeds of the sale of the Spring Street property to another unrelated loan in which the Reggies had no part, the bank improperly subordinated the senior lien (which was concomitant to the lien on the Reggies home) to the junior one. The collateral was impaired in the sense that the risk which the Reggies agreed to assume when they became sureties was substantially increased by the bank’s actions. The Reggies rightfully expected that the mortgage instrument which they signed as sureties constituted a senior mortgage on the Spring Street property and that the senior lien would be satisfied before foreclosure could begin on their home. Stolar, 130 Pa.Super. 480, 197 A. 499 (action of bank in subordinating prior lien without consent of surety released and discharged surety).

In addition, by paying off the junior lien, which related to a transaction to which the Reggies were not a party, the bank extended the Reggies’ liability to an unrelated loan. To sanction the actions of the bank in this case would be to extend the liability of the surety in one transaction to any number of subsequent transactions. The principal borrower would need only to pledge as collateral in subsequent obligations the property subject to a mortgage to which a surety is a party.

Thus, the bank, having violated its duties toward the Reggies, discharged them, as sureties, from liability on the Spring Street mortgage. The Reggies owed no debt to the bank after the sales of the Spring Street property. The bank could not have legally foreclosed on the Reggies’ home. Therefore, there was no consideration underlying the 1980 mortgage which is the subject of the present action. The Reggies were induced to finance a non-existent debt. The bank was not entitled to a summary judgment below. To the contrary, as a matter of law, the mortgage on which the bank seeks to foreclose is unenforceable for lack of consideration.

The bank, for the first time on appeal, attempts to salvage the enforceability of the mortgage from this alleged lack of consideration by invoking the application of the Uniform Written Obligations Act, 33 Pa.Cons.Stat.Ann. § 6 (Purdon 1967). The Act provides “that a written release or promise, hereafter made and signed by the person releasing or promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” 33 Pa.Cons.Stat.Ann. § 6. However, the bank has altogether failed to specify the language in the mortgage which allegedly qualifies as a substitute for consideration under the Uniform Written Obligations Act. The trial court made no finding as to the whether the mortgage in fact contained the. appropriate language to render it enforceable under the Act. Thus, since the bank has failed to support its allegations, we cannot hold this mortgage enforceable under the Act.

However, even if the mortgage were found enforceable notwithstanding the lack of consideration, the bank would not be entitled to summary judgment. The Reggies alleged that they were induced into signing the mortgage because of fraud and misrepresentations on the part of the bank. They allege that the bank misrepresented to them that they owed the pre-existing debt to the bank and that the bank could have foreclosed on their home. The Uniform Written Obligations Act would merely save the mortgage from unenforceability due to lack of consideration; it does not prevent an attack on the mortgage on the basis of fraud or material misrepresentation.

The recipient of misrepresentation may avoid a contract by showing that the misrepresentation was material. Germantown Manufacturing Co. v. Rawlinson, 341 Pa.Super. 42, 491 A.2d 138 (1985); Gilmore v. Northeast Dodge Co., 278 Pa.Super. 209, 420 A.2d 504 (1980) (recission may be imposed if party induced to enter a contract by material misrepresentation). The factual issue of material misrepresentation remains to be resolved. Likewise, whether fraud has been committed by the bank is a question of fact. Greenwood v. Kadoich, 239 Pa.Super. 372, 357 A.2d 604 (1976). Again, the existence of such disputed issues of fact should have precluded the grant of summary judgment to the bank.

Therefore, we vacate the order of the trial court granting summary judgment to the bank and remand this case to the trial court for proceedings consistent with this opinion.

      . Although the bank has alleged that bonds accompanied each of the mortgages involved in this case, those bonds were never entered into the record.

      . The bank confuses the issues throughout this case by at times referring to a mortgage and bond under which they seek to hold the Reggies liable, but at other times referring only to a mortgage. As noted above, the bank never entered into the record any notes or bonds signed by the Reggies. Even if the bank attempts to hold the Reggies personally responsible on the note, the same grounds for discharge apply. The Uniform Commercial Code as enacted in Pennsylvania codifies the common law grounds for discharge of a surety in relation to commercial paper. 13 Pa.Cons.Stat.Ann. § 3606 (Purdon 1984).

      . As the bank notes, the lien of a prior mortgage is not discharged by a judicial sale on a junior lien. Liss v. Medary Homes, Inc., 388 Pa. 139, 130 A.2d 137 (1957); 42 Pa.Cons.Stat.Ann. § 8152(a) (Purdon 1982). The bank further admits that the senior lien on the Spring Street property survived the sheriffs sale. However, the bank then claims that the doctrine of merger operated to extinguish the lien by combining both legal and equitable title. See, e.g., Kretschman v. Stoll, 328 Pa.Super. 51, 352 A.2d 439 (1975). This argument fails when sureties are involved, because the bank chose to merge the senior lien, rather than the junior lien, when it decided to foreclose on the junior lien first. The bank still acted to impair the collateral. We note that had there been another creditor holding one of the liens, instead of the bank being sole lienholder, the Reggies’ interests would have been safeguarded. Under the case law and statute cited, the senior mortgage would have had priority in receiving the proceeds or would have survived any sale. Although the bank as sole creditor can waive the protections offered by the statute governing priority of liens, Dauphin Deposit Bank and Trust Co. v. Stouffer, Inc., 285 Pa.Super. 106, 426 A.2d 1164 (1981), it cannot maneuver its waiver to violate its duties to a surety involved.

      . The trial court relied upon Sokoloff v. Strick, 404 Pa. 343, 172 A.2d 302 (1961), to exclude consideration of parole evidence of fraud. In Sokoloff, the Supreme Court of Pennsylvania held that where a written contract purports to cover the entire agreement of the parties, alleged oral representations are merged into or superseded by the subsequent written contract. The Court in Sokoloff ruled inadmissible evidence showing that the plaintiffs were told by the defendant when they signed the note and mortgage that the defendant would never proceed to recover under those instruments. The Court went on to say that a promise not to enforce an instrument in the future does not amount to the type of fraud that would void that instrument. However, Sokoloff is inapposite to the type of fraud and misrepresentation which the Reggies are attempting to prove. The Reggies claim in their pleadings, not just that the bank violated its promise to use the proceeds from the sale of the Spring Street property to satisfy the senior lien, but that the bank misrepresented to them that they owed the bank a debt. Evidence of such misrepresentation and fraud is admissible to void the mortgage. Gilmore; Germantown Manufacturing Co.; Greenwood.