author: BECK, Judge:

text:
    440 A.2d 562
    COMMONWEALTH of Pennsylvania, v. Edward J. DEVLIN, Appellant.
    Superior Court of Pennsylvania.
    Argued Sept. 23, 1981.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied April 30, 1982.

      Lawrence A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
    William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
    Before BROSKY, McEWEN and BECK, JJ.
   BECK, Judge:

Appellant was convicted, in a non-jury trial, on two counts of Arson—Endangering Property. He was sentenced to a prison term of five to fifteen years, said sentence to run concurrently with that imposed on a prior conviction.

The sole evidence presented at trial to connect appellant directly with the fires consisted of entries in a diary. The appellant challenges the refusal of the trial judge to suppress the diary. In addition, appellant claims that there was insufficient evidence presented by the Commonwealth at the Preliminary Hearing to establish a prima facie case, and that the testimony of the fire marshal as to the incendiary origin of one of the fires should have been stricken.

SEIZURE OF THE DIARY

On February 8, 1980, appellant was sentenced on a prior offense, and on that date one Lorene Bryan was assigned as his probation officer. On that date, District Attorney Joseph H. Kleinfelter, the prosecutor on the prior offense, arranged to meet with the probation officer. He told her that he wanted her to be aware that appellant would require very close supervision in that Mr. Kleinfelter had learned in the course of his investigation on the weapons offense that appellant was suspected of one or more arsons occurring in 1977. He did not instruct her to look for anything, but did request that if she came across any information or found out anything, she should let him know. He had no further contact with the probation officer until March 12, 1980.

On March 11,1980, the probation officer, seeking to verify that appellant was employed, made a telephone call to appellant’s residence. Appellant was residing at the home of his mother and father, and his mother answered the telephone. During the course of the conversation, appellant’s mother stated that she had found something in a notebook in her son’s room which alarmed her. She did not state what it was. The probation officer told the mother that, as a part of her duties in ensuring appellant’s compliance with the terms of his probation, she was to conduct a search of appellant’s residence, and that she would do so no later than the following day and would then inspect what it was that appellant’s mother had found.

Following the telephone conversation, Ms. Bryan told her supervisor what the mother had said, a staff meeting was held, and it was decided that Ms. Bryan should conduct a search, should examine the notebook, and should bring the notebook back to her office and copy any portion revealing a violation of probation.

On the same day, March 11, 1980, the probation officer went to the appellant’s home and was admitted by his mother. His mother expressed apprehension that a search was being conducted in appellant’s absence, and the probation officer explained that she was authorized to make such a search and to make it without a search warrant.

Appellant’s mother then took Ms. Bryan to the room where appellant slept and kept his things. Ms. Bryan conducted a search of the room. The notebook the mother had referred to was identified by her as being one found by Ms. Bryan in the drawer of the nightstand. Ms. Bryan glanced through it briefly, but being pressed for time, told appellant’s mother she would take it to her office where she could read it at leisure and return it to the mother later. She told the mother she would copy “parts of it” and the mother consented. One of the thoughts that went through Ms. Bryan’s mind when she took the notebook, and before she read it, was that it might contain evidence linking appellant with the 1977 arson Mr. Kleinfelter had spoken of.

When Ms. Bryan reviewed the notebook in her office, she found dated entries. Among these dated entries was an entry dated February 24, 1980 describing his setting a fire earlier at Third and Sayford Street, Harrisburg and, later that night, a fire in the 1900 block of north Sixth Street. She photocopied these portions and returned the diary to appellant’s mother on March 12. Ms. Bryan showed the photocopies to her supervisor, and together they met with District Attorney Kleinfelter. The office of the city fire marshal confirmed that two fires listed as being of incendiary origin had occurred at those locations at that time. Mr. Kleinfelter prepared an affidavit which stated:

On this date, March 12, 1980, Dauphin County Probation Officer, Lorene Bryan, visited the above stated residence of Edward J. Devlin in Steelton in her capacity as Devlin’s probation officer. While making an examination of Dev-lin’s bedroom, she viewed various notes and a diary written by Devlin which contained an admission by him to having set a fire in . . . Harrisburg shortly after midnight on February 23-24, 1980. The aforegoing information was conveyed to the affiant below.

Fire Marshal Elmer W. Shover had meanwhile informed Corporal Lesko of the Bureau of Police that he was to report for duty with regard to investigation of the arsons. Corporal Lesko went to Mr. Kleinfelter’s office and received the already prepared affidavit from him, executed it, and on this basis obtained a search warrant from the District Justice. Mr. Kleinfelter, Mr. Shover, a county detective, Ms. Bryan’s supervisor and Corporal Lesko then went to appellant’s home, read the search warrant to appellant’s mother, and asked appellant’s mother if she had the diary. She conducted Mr. Kleinfelter, Mr. Shover and the county detective to the second floor and gave them the diary.

At trial, a handwriting expert identified the handwriting in the diary, including the inculpatory entries, as that of appellant.

(a) The Affidavit was properly accepted as showing probable cause for the issuance of a search warrant.

Appellant contends that the presence in the affidavit of the phrase “information was conveyed to the affiant” in the absence of a statement as to how it was conveyed, combined with the fact that the officer who executed the affidavit did not personally speak with Ms. Bryan, renders the affidavit deficient under the test set forth in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) in that it does not show that the information is reliable. Appellant argues that the failure to reveal the full chain of information left the possibility that an unreliable informant had made up the story of what Lorene Bryan had done and seen. However, the crucial “informant” here is not Mr. Kleinfelter, whose role in the chain of information was omitted from the affidavit, but Lorene Bryan, a Dauphin County Probation Officer. The issuing authority was clearly entitled to rely upon her as a reliable informant. The fact that the affidavit did not reveal the passage of the information through Mr. Kleinfelter does not render the affidavit unreliable. Mr. Kleinfelter was, in fact, a person upon whom the police officer, signing as amanuensis, was entitled to rely in asserting that Ms. Bryan had conveyed the information. In Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979), the officer who signed the affidavit accepted the information from another police officer at the scene and had not personally spoken with the informant. The appellant therein similarly attacked the affidavit as “double hearsay” failing to show probable cause. The Court rejected the argument, stating:

Here, the officer supplying the information for the affidavit possessed the requisite information to satisfy the probable cause requirements. The fact that he delegated the responsibility of placing this information in affidavit form and the securing of the warrant from the issuing authority is of no consequence, where the affidavit accurately reflects the information possessed by the officer and that information satisfies the probable cause requirement.

Id., 486 Pa. 113, 404 A.2d at 383.

The crucial test is whether the affidavit does accurately reflect the actual information and the source which is relied upon to show probable cause. As recently stated in Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141, 144 (1981) The police officer who executed the affidavit received the description of Lorene Bryan’s information from a wholly reliable source. Lorene Bryan herself was clearly a reliable informant. Cf. Commonwealth v. Barrett, 233 Pa.Super. 523, 335 A.2d 476 (1975). The issuing authority was given accurate information, and that information was sufficient to form the basis for an assessment of the reliability of the source of the information. The search warrant was therefore properly issued.

[W]e recognize that affidavits supporting search warrants normally are prepared ... ‘in the midst and haste of a criminal investigation’.... They . . . should be interpreted in a ‘common sense and realistic’ fashion rather than in a hypertechnical manner, citations omitted.
(b) The initial search by the probation officer and her examination of the diary did not constitute an unlawful search and seizure.

Appellant argues that the information which formed the basis for the search warrant which produced the diary as evidence would not have been available had it not been for the prior search and seizure by Lorene Bryan. Appellant further argues that because the District Attorney had previously requested that the probation officer tell him of any information of which she might become aware which related to new crimes, and the fact that the thought of that conversation crossed her mind when she saw the diary in appellant’s room, her review and photocopying of the diary constituted an unconstitutional search and seizure, of which the diary as evidence was the ultimate fruit.

In Commonwealth v. Brown, 240 Pa.Super. 190, 361 A.2d 846 (1976), this court held that “when performing his normal duties, a parole agent is not required to obtain a search warrant” in order to make a routine, supervisory search of the parolee’s residence. One who has been placed on probation in being sentenced after conviction of a crime is as much under the supervision of the state as is one who is sentenced to incarceration. A probation officer is entitled to search the belongings of such an individual to ensure that they do not reveal a violation of the terms of probation. In the present instance, the probation officer did not plan such a search until she received information that appellant’s mother was “alarmed” by something appellant had written in a notebook. This information clearly did not rise to the level of probable cause for issuance of a search warrant. However, the authority of the probation officer to make a search was certainly no less as a result of receipt of such information than it would have been without such information. Thus, she was entitled to search appellant’s room.

Appellant argues, however, that his mother would not have shown the diary to Ms. Bryan had not Ms. Bryan informed her that the search was lawful without a search warrant, thus “coercing” his mother to cooperate in the search. The flaw in this argument is that Ms. Bryan was speaking the truth. In Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), police officers informed the suspects’ grandmother that they had a warrant when in fact they did not. Such conduct has consistently been held to vitiate any consent given. Here, the search did not rely upon consent for its validity. The initial information concerning the existence of the notebook was volunteered by the mother on the telephone, and the later identification of the notebook in the drawer of the nightstand cannot be seen as flowing from the representation of authority to make a search. No representation was made that the mother was under compulsion to aid in the search.

The final question is whether the probation officer exceeded the bounds of her duties when she removed the diary from the room, read it in her office, and made photocopies of the pages. We find no evidence that Ms. Bryan “changed hats” when she removed the notebook. At that point, she did not know what was in it other than that something had alarmed appellant’s mother. The passing memory of her conversation with the District Attorney does not alter the situation, since anyone in her position would have realized that the notebook might reveal a new weapons offense, might reveal information regarding the arsons of which the District Attorney had spoken, or might reveal nothing. In fact, it did none of these, for it revealed information regarding two acts of arson which had occurred since her conversation with the District Attorney. The point at which Commonwealth v. Brown, supra, and Commonwealth v. Berry, supra, held that a search warrant must be obtained was the point at which a search warrant was obtained: after the contents of the diary were known to consist of matter which related to crimes for which prosecution was likely to be instituted.

The important question remains as to whether the removal of the evidence to her office and its return to the home for immediate seizure under search warrant alters the otherwise lawful progression of the seizure of this evidence. We do not find any authority directly on point. We must certainly act with caution in finding evidence properly admissible when that evidence has been in the possession of an officer of the state prior to its seizure under warrant. Under any circumstance where the state could alter its burden of proof by its dealing with evidence in its possession, other considerations would enter into a determination of a suppression motion. In the present instance, however, we are dealing with written matter which could only be used as evidence against the appellant in the event the prosecution could prove that it was written by the appellant. This burden could not be changed in any way by the authorities of the state in their conduct toward the evidence while in their possession. Substitution for, or alteration of, the notebook would not aid the prosecution in proving its case in any way.

We conclude, based upon the appellant having been an individual sentenced to a term of probation upon conviction of a felony with resultant diminished Fourth Amendment rights during the term of his probation, that the search and seizure were lawfully conducted and there was no error in refusal to suppress the diary.

CHALLENGED EVIDENCE

At the Preliminary Hearing of appellant in this case, the fire marshal testified to the occurrence of the fires and that they had been listed as being of incendiary origin. Officer Lesko testified to the service of the search warrant and identified the diary as having been produced by the mother as the “personal notes and diary of Edward J. Devlin” in response to the warrant. He read the inculpatory statements and also referred to portions of the diary which related circumstances known to be related to appellant. No other evidence was introduced connecting appellant with the crimes. Appellant claims that the failure to authenticate the diary at that hearing resulted in a failure to show a prima facie case. We find this argument to be without substance. There was sufficient evidence presented to create a reasonable belief that the diary was that of appellant in that it was produced as such by his mother and in that it contained details of his life which were known. The Commonwealth is not required to prove guilt beyond a reasonable doubt at the preliminary hearing, but rather is required to establish that there is sufficient probable cause to believe that a crime has been committed and that the accused is the one who committed it in order to protect the accused from unlawful detention. See Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8, 10 (1978), Commonwealth v. Beatty, 281 Pa. Super. 85, 421 A.2d 1159, 1162 (1980).

Finally, appellant claims that the testimony of the fire marshal concerning the fire which formed the basis for one of the two counts of which he was convicted should have been stricken. As to the said fire, the fire marshal testified as to its occurrence and stated that, although he was not present at the fire or immediately thereafter, that within approximately one week of the fire, he had inspected the site, had found the fire to have originated in a closet where some trash had been piled, and that it was his opinion that the fire was of incendiary origin. On cross-examination, he stated that he did not find any trace of any accelerant, and that he could not identify the specific instrumentality which had started the fire, that it could have been a match or a lighter or a cigarette. He did state that he ruled out spontaneous combustion on the basis of the location and the materials. He reiterated that it was his opinion that the fire was of incendiary origin and that he based his conclusion on the physical evidence that he observed at the scene. Fire Marshal Shover was acknowledged by the defense to possess the necessary expertise to form an expert opinion as to the origin of a fire. As in Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846, 851 (1980):

[T]he record discloses [the expert witness] directed the investigation of the scene . . . personally examined the [site] .... This was certainly sufficient information upon which to base his opinion.

Defense counsel thoroughly explored the basis for the opinion and was given full scope in exposing any weakness in the conclusion. It was therefore not error to refuse to strike this testimony.

Judgment of sentence affirmed.

      . Ms. Bryan testified that she was not made aware that the notebook was a diary, but was made aware in this initial conversation that it was a notebook which had alarmed appellant’s mother.

      . Commonwealth v. Brown, supra and Commonwealth v. Berry, 265 Pa.Super. 319, 401 A.2d 1230 (1979) involved parole officers supervising one who had served at least a minimum term of incarceration and were released on parole under certain specified conditions. The instant case differs in that appellant herein was under a probationary sentence pursuant to 42 Pa.C.S. Section 9722. “Probation” is a period of trial or testing, in the instance of criminal probation of testing of whether the probationer does in fact meet the criteria set forth in Section 9722, including the likelihood of affirmative response to probationary treatment. Close supervision is a necessity under such circumstances, and the Fourth Amendment rights of the probationer are clearly diminished to the extent necessary to meet this necessity. While not totally abrogated, as are those of the individual sentenced to incarceration during incarceration, the Fourth Amendment rights of one under sentence of probation must give way to the necessity for ensuring that incarceration for some period is not a necessity for the protection of society.

      . For example, had the evidence sought to be suppressed consisted of contraband and had possession been an element which the Commonwealth had the burden to prove, the interim possession of the evidence by an officer of the Commonwealth would create a very different problem from the one presented here. In the instant case, possession of the diary was not the element which the Commonwealth had to prove, but rather authorship.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    440 A.2d 568
    COMMONWEALTH of Pennsylvania, Appellant, v. Richard HENRY.
    Superior Court of Pennsylvania.
    Submitted Jan. 27, 1981.
    Filed Jan. 19, 1982.

      William H. Platt, District Attorney, Allentown, for Commonwealth, appellant.
    W. Hamlin Neely, Allentown, for appellee.
    Before CAVANAUGH, JOHNSON and LIPEZ, JJ.
   JOHNSON, Judge:

The Commonwealth appeals from the order of February 25, 1980, that discharged Appellee because his Rule 1100 rights had been violated. For the following reasons, we reverse and remand.

The complaint in the instant case was filed on April 5, 1979; but trial was not scheduled to commence until January 22,1980—a period of 292 days. Unless 112 days could be excluded under Rule 1100(d), Appellee’s Rule 1100 rights were clearly violated since trial was not commenced within 180 days after the complaint was filed.

The trial judge held that two periods were excludable under Rule 1100(d). On May 17, 1979, a magistrate’s hearing was continued until June 30, 1979, to enable Appellee to obtain counsel. The trial court held that only 14 days of this 44-day period were excludable under Rule 1100(d)(2). Since Appellee was financially capable of retaining counsel, this entire 44-day period is excludable under Rule 1100(d)(1). See Commonwealth v. Millhouse, 470 Pa. 512, 517-518, 368 A.2d 1273, 1276 (1977); Commonwealth v. Smith, 262 Pa.Super.Ct. 258, 263-264, 396 A.2d 744, 746 (1978). On June 30, 1979, the magistrate’s hearing was again continued at the request of Appellee’s counsel, whose vacation extended from June 26,1979, until mid-July. The issue in this case involves the trial court’s interpretation of the circumstances surrounding this second period of excludable time. We proceed to consider this issue.

On June 19, 1979, defense counsel wrote to the magistrate, informing him that the prosecutor had agreed to continue the hearing that had been scheduled to commence before the magistrate on June 30, 1979. The following portion of defense counsel’s letter is relevant to our discussion:

Since I am going on vacation commencing June 26,1979 and will not return until mid-July, it appears that the hearing cannot be scheduled until sometime during the month of August. I explained this to Attorney Hudak, [assistant prosecutor] who is agreeable to this chronology.
In the meantime, you should note that the continuance was brought about upon my request and that I will waive the applicability of the Pennsylvania Rule of Criminal Procedure 1100 to the extent that the Rule relates to the computation of any period of delay brought about by the subject continuance. You will also note that a copy of this correspondence is being forwarded to Attorney Hu-dak.

The trial judge calculated that the period from June 30, 1979, until August 31, 1979, was excludable because of the foregoing letter. This second period consisted of 62 days. The lower court found that, together with the first excluda-ble period of 14 days, a total of 76 days was excludable under Rule 1100(d). Since trial was not scheduled to commence until 112 days after the Rule 1100 run date, and since only 76 days were excludable under the lower court’s interpretation, the court held that Appellee’s Rule 1100 rights had been violated.

At the hearing on February 25, 1980, concerning Appellee’s Application to Discharge under Rule 1100, the assistant prosecutor (Hudak) referred to his telephone conversation with defense counsel on June 18, 1979. Hudak testified that the aforesaid telephone conversation left him with the conviction that Rule 1100 would never be raised by defense counsel. The trial court held that the letter of June 19, 1979, had precedence over the telephone conversation of the same date. Because the parties could not agree concerning the content of the telephone conversation, the issue involves a determination of credibility. Since a determination of credibility is solely within the purview of the trier of fact, we accept the lower court’s decision regarding the aforesaid letter. See Reed v. Universal C.I.T. Credit Corp., 434 Pa. 212, 217, 253 A.2d 101, 104 (1969).

Since the aforesaid letter waived Rule 1100 only “to the extent that the Rule relates to the computation of any period of delay brought about by the subject continuance,” the court held that Appellee had not waived Rule 1100 indefinitely.

At the hearing, the trial judge referred to a third period—from September 13, 1979, until October 9, 1979—as excludable time. The record does not establish why this period of twenty-six days, during which the preliminary hearing was continued, would constitute excludable time. The lower court’s opinion does not refer to the aforesaid period, and Appellant’s brief merely states that this period may be excludable because of “some agreement or stipulation at the hearing before the Lower Court. . . . ” Careful scrutiny of the record does not indicate why the aforesaid period would constitute excludable time.

Trial in the instant case would have been timely commenced under Rule 1100 if 112 days could be excluded. The two periods of 44 days and 62 days, respectively, constitute a total of 106 days of excludable time. Thus the third period of 26 days is crucial in a decision of whether or not Appel-lee’s Rule 1100 rights were violated.

For the foregoing reasons, we reverse the order of February 25, 1980, and remand for an evidentiary hearing to determine whether or not, by some agreement, stipulation, or unusual circumstances, the period from September 13, 1979, until October 9, 1979, constituted excludable time.

Jurisdiction is not retained by this Court.

      . Pa.R.Crim.P., Rule 1100(a)(2), 42 Pa.C.S.A., states:
      Trial in a court case in which a written complaint is filed against the defendant after June 30, 1974 shall commence no later than one hundred eighty (180) days from the date on which the complaint is filed.

      . Rule 1100(d) states:

        In determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from:
      (1) the unavailability of the defendant or his attorney;
      (2) any continuance in excess of thirty (30) days granted at the request of the defendant or his attorney, provided that only the period beyond the thirtieth (30th) day shall be so excluded.


author: DiSALLE, Judge:

text:
    440 A.2d 570
    COMMONWEALTH of Pennsylvania, v. Edward Joseph FISHER and Royal Napoleon Landry, Appellants.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied May 5, 1982.

      Basil G. Russin, Wilkes-Barre, for appellants.
    Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
    Before CAVANAUGH, MONTEMURO and DiSALLE, JJ.

       Decision was rendered prior to Di SALLE, J., leaving the bench of the Superior Court of Pennsylvania.

   DiSALLE, Judge:

The appellants, Edward Fisher and Royal Napoleon Landry, were found guilty in a non-jury trial of criminal conspiracy and possession of unstamped cigarettes. They were subsequently sentenced to be imprisoned for one to three years on the possession charge and one to two years on the conspiracy charge, the sentences to run concurrently. Following the appellants’ Petition for Reconsideration of Sentence, the lower court reduced their sentences to six months to twenty-three and one-half months imprisonment on each charge, the sentences to run concurrently.

Appellants were arrested after 14,100 contraband cartons of cigarettes were discovered in the vehicle in which they were riding. The probable cause section of the search warrant explains the circumstances surrounding the arrest:

Defendant was traveling East on 1-80, at MP266. Trooper observed above described vehicle while operating Radar. Defendant was stopped for exceeding the speed limit for several miles. Trooper observed camper body-windows sealed with a type of fabric or material to prevent anyone from seeing inside. Tpr. Jesse’s experience in the past indicates that this type of vehicle is indicative of cigarette smuggler. Tpr. Jesse has been responsible for seven other successful prosecutions for cigarette smuggling. On closer examination Tpr. Jesse observed the rear door of the camper was slightly pulled out and noticed a brown carton which is indicative of packaging cigarettes. Conversation ensued that [sic] Ha-zleton S, Station and Edward Fisher made an oral admition [sic] that cigarettes were in the camper.

Following the stop, appellants drove to the State Police Station, complying with Trooper Jesse’s request to follow him there. The stated purpose of this request was to await a registration check on the camper. Before the registration check had been completed, and after appellant Fisher had refused to give his consent to a search of the camper, he was told by the officer that he was “free to go.” As he was about to leave, he suddenly exclaimed: “ah hell, I might as well tell you. There are cigarettes on the camper.” At this point, the officers obtained the warrant and searched the vehicle.

The appellants’ first contention is that the trial court erred in denying their motion to suppress the evidence as the fruit of an illegal stop. They argue that their camper was illegally stopped based upon a radar check that showed they were within the six miles per hour margin provided by statute. They also argue that even if they were legally stopped they were illegally ordered to follow Trooper Jesse to the State Police Station based solely upon the trooper’s suspicions that the appellants were smuggling something.

We disagree with both of the appellants’ arguments and hold that the lower court ruled properly. The appellants’ first argument, that they were illegally stopped, is incorrect. The radar statute permits a person to be convicted only if the radar records their motor vehicle to be traveling at “six or more miles per hour in excess of the legal speed limit.” 75 Pa.C.S.A. § 3368. The statute is silent as to when a motor vehicle may be stopped for a speed warning or other cause. Any police officer may stop a motor vehicle if he reasonably believes a provision of the Motor Vehicle Code is being violated and request, inter alia, a registration check. Here, the trooper was justified in stopping the appellants’ vehicle because he reasonably believed that it was traveling in excess of the legal speed limit.

The appellants’ second argument, that they were illegally ordered to follow Trooper Jesse to the State Police Station, is not supported by the record. Trooper Jesse testified that he asked the appellants to follow him to the station to await a check on the camper’s registration. He made this request because the camper had a Florida registration and it would take time to check the registration. The Trooper, therefore, had ample authority to ask the appellants to follow him to the police station. The lower court, therefore, properly denied appellants’ motion to suppress the evidence as the fruit of an illegal stop.

The appellants’ second contention is that the lower court erred in denying their motion to suppress the search warrant and the evidence obtained under it. They argue that no Miranda warnings were given to them, that the trooper’s testimony that appellant Fisher had made his admission after he was told he could leave is incredible, and that without the admission there is not sufficient probable cause to support the search warrant. We again disagree with the appellants’ arguments and hold that the lower court acted correctly. In Commonwealth v. Hunt, 263 Pa. Super. 504, 509, 398 A.2d 690, 692 (1979), our court stated that:

The burden rests with the Commonwealth to show voluntariness of a confession by a preponderance of credible evidence. . . . Our duty on review is to determine whether the record supports the factual and legal findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings. In making this determination, we are to consider only the evidence of the Commonwealth’s witnesses and so much of the evidence for the defense as, fairly read in context of the record as a whole, remains uncontradicted.

(Citations omitted).

Here, the record supports the lower court’s findings that the admission was voluntarily, willingly, and intelligently made. Id. The absence of Miranda warnings is irrelevant because the admission was voluntary and made after appellants were told they were “free to go.” Commonwealth v. Sero, 478 Pa. 440, 387 A.2d 63 (1978). As to the credibility of the trooper’s testimony, that is for the fact finder to decide. Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). Because the admission was properly included in , the probable cause section, there was sufficient cause for the issuance of the search warrant.

The appellants’ third contention is that the Commonwealth failed to prove an essential element of the possession charge and, therefore, the lower court should have granted their demurrer. Appellants were charged and convicted of violating the Pennsylvania Cigarette Tax Act; specifically § 3169.903(b) and (c) which provide:

(b) Any person other than a duly licensed stamping agency or other person specifically exempted by the provisions of this act who shall possess one thousand or more cigarettes, the packages of which do not have affixed thereto the proper amount of genuine Pennsylvania cigarette tax stamps shall be guilty of a misdemeanor and upon conviction thereof shall be sentenced to a fine of not less than a thousand dollars ($1000) nor more than fifteen thousand dollars ($15,000) and costs of prosecution or to suffer imprisonment for not more than three years, or both, at the discretion of the court.
(c) Any person who shall falsely or fraudulently, maliciously, intentionally or wilfully with intent to evade the payment of the Pennsylvania cigarette tax possess any pack of cigarettes which does not have affixed thereto the proper amount of genuine Pennsylvania cigarette tax stamps shall be guilty of a felony and upon conviction thereof shall be sentenced to pay a fine of not more than five thousand dollars ($5000) and costs of prosecution and to suffer imprisonment for a term of not more than five years.

(Emphasis added). The appellants argue that the Commonwealth failed to prove that appellants were not specifically exempt by the provisions of the Act as found in § 3169.-903(b).

In Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), our court was confronted with an exemption clause similar to the one involved in the present case. The sole issue was whether the Commonwealth “must prove in every case, beyond a reasonable doubt, that the accused was not authorized to possess a controlled substance.” Id., 268 Pa.Super. at 490, 408 A.2d at 1109. Our court held that the defendant had the burden of coming forward with some evidence of authorization to possess a controlled substance before the Commonwealth must prove nonauthorization beyond a reasonable doubt.

We find the reasoning in Sojourner to be applicable here and hold that the Commonwealth need not prove beyond a reasonable doubt that a defendant is not exempt under the Act unless and until the defendant comes forward with some evidence that he or she is exempt. Here, the appellants failed to produce any evidence that they were specifically exempted by the Act. Appellants’ demurrer, therefore, was properly denied.

Appellants’ fourth contention, that the Commonwealth failed to prove beyond a reasonable doubt that the appellants intentionally or willfully intended to evade the payment of the Pennsylvania cigarette tax, is without merit. Appellants’ possession of 14,100 cartons of contraband cigarettes is sufficient circumstantial evidence to find they had the necessary intent to violate the Pennsylvania Cigarette Tax Act. See Commonwealth v. Joyner, 489 Pa. 502, 414 A.2d 1003 (1980).

The appellants’ final contention is that the verdict is against the law. They make four separate arguments in support of this contention. Their first argument, that appellant Fisher was not served with a copy of the search warrant, is not supported by the record and is thus without merit. Their second argument, that they were not given the Miranda warning, has already been addressed and found to be without merit. Third, they argue that they were denied due process of law because the Commonwealth presented only 30 of the 14,100 cartons of the contraband cigarettes at trial; the balance having been sold at auction. There is no basis to this argument. To prove appellants guilty of violating the Pennsylvania Cigarette Tax Act, the Commonwealth need only prove that appellants were in possession of 1,000 cigarettes. 72 P.S. § 3169.903(b). Here, the Commonwealth proffered 30 cartons of cigarettes which contained 6,000 cigarettes (30 cartons X 10 packs per carton X 20 cigarettes per pack). Lastly, it is argued that no evidence was presented at trial to prove that appellant Landry was- anything but a mere passenger in the camper. We agree; there is no evidence in the record to convict Landry as a co-conspirator.

Judgment of sentence as to appellant Fisher affirmed. Judgment of sentence as to appellant Landry vacated and he is discharged.

CAVANAUGH and MONTEMURO, JJ., concurred in the result.

      . 18 Pa.C.S.A. § 903.

      . Act of July 22, 1970, P.L. 513, No. 178, art. IX, § 903. As amended July 7, 1978, P.L. 746, No. 139, § 1, eff. in 60 days, 72 P.S. § 3169.903(b) and (c) (Supp. 1981-82).

      . Pa.R.Crim.P. 1410.

      . 75 Pa.C.S.A. § 3368(c)(2).

      . 75 Pa.C.S.A. § 6308.

      . The appellants also contend that the probable cause section of the search warrant contains conclusions rather than facts and is therefore unable to support the issuance of the warrant. The alleged conclusions are:
      (1) “[the] camper body-windows [were] sealed with a type of fabric or material to prevent anyone from seeing inside.” and
      (2) “[the trooper] noticed a brown carton which is indicative of packaging cigarettes.” These alleged conclusions may be, at worst, somewhat suspect. In any event, they do not affect the validity of the probable cause section of the warrant.

      . Act of July 22, 1970, P.L. 513, No. 178, art. I, § 101, 72 P.S. § 3169.101 et seq. (Supp. 1981-82).

      . The only exemption clause contained in the Cigarette Act refers to the sale of cigarettes. But, even if that exemption clause were applicable in this case it would not aid the appellants because it states that “all sales shall be presumed to be taxable and the burden shall be upon the person claiming an exemption to prove his right thereto.” 72 P.S. § 3169.204(b) (Supp.1981-82).

      . Sojourner involved a violation of The Controlled Substance, Drug, Device and Cosmetic Act. Act of April 14, 1972, P.L. 233, No. 64, § 1, eff. June 14, 1972, 35 P.S. § 780-101 et seq. The exemption clause provided:
      ‘Contraband’ means any controlled substance, other drug, device or cosmetic possessed by a person not authorized by law to possess such....
      35 P.S. § 780-102.

      . It is uncontested that the Commonwealth proved beyond a reasonable doubt that appellants were not duly licensed.


author: SHERTZ, Judge:

text:
    440 A.2d 574
    COMMONWEALTH of Pennsylvania, v. Morris LEE, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 5, 1980.
    Filed Jan. 19, 1982.

      Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
    Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
    Before HESTER, WIEAND and SHERTZ, JJ.

       Decision was rendered prior to SHERTZ, J. leaving the bench of the Superior Court of Pennsylvania. '

   SHERTZ, Judge:

Appellant, Morris Lee, was convicted in a non-jury trial of retail theft. In this appeal from Judgment of Sentence, Appellant asserts that the lower court erred in failing to grant his motion to discharge, based on the Commonwealth’s failure to bring Appellant to trial within the period mandated by Pa.R.Crim.P. 62. We have carefully examined the record and, since we find no prejudicial error demonstrated therein, we affirm.

On December 28, 1979, Appellant was arrested without a warrant and arraigned for the theft of an item whose cost was $10.33. The complaint filed by the arresting officer charged Appellant with Retail Theft F-3. At the preliminary arraignment, the judge noted there were no prior convictions for retail theft and listed the case for summary trial in the Philadelphia Municipal Court. Thirty-eight days later, on February 4, 1980, Appellant was tried and convicted in Municipal Court of retail theft as a summary offense. An appeal was taken to Common Pleas Court and argument was heard on the motion to dismiss based on the violation of Rule 62. The motion was denied and the court convicted Appellant of retail theft.

Assuming arguendo that Rule 62 applies, our examination of the record indicates that the asserted error did not prejudice Appellant. Appellant does not contend that he was prejudiced by the thirty-eight day lapse between the preliminary arraignment and his trial. Rather, despite the absence of any assertion or showing of prejudice, Appellant argues that the violation of Rule 62, per se, warrants dismissal of the charges against him. We disagree and conclude, instead, that the delay, although it is to be condemned, was harmless inasmuch as no prejudice to Appellant was shown to have resulted from the failure of the Commonwealth to comply with the requirements of Rule 62. See, e.g., Commonwealth v. Andrews, 285 Pa.Super.Ct. 100, 103, 426 A.2d 1160, 1162 (1980); Commonwealth v. Paskings, 447 Pa. 350, 354, 290 A.2d 82, 84 (1972).

Judgment of sentence affirmed.

      . 18 Pa.Cons.Stat.Ann. § 3929(b)(l)(i) (Purdon 1976) which states in pertinent part:
      (b) Grading.
      (1) Retail theft constitutes a:
      (i) Summary offense when the offense is a first offense and the value of the merchandise is less than $150.

      . Pa.R.Crim.P. 51, which sets forth the means of instituting proceedings in summary cases, states that when a defendant is arrested without a warrant, the case shall proceed under Pa.R.Crim.P. 62 which provides:
      Procedure in Summary Cases Initiated by Arrest Without Warrant
      (a) When a defendant has been arrested for a summary offense without a warrant, he shall be taken without unnecessary delay before the proper issuing authority where a citation shall be filed against him.
      (b) Except where otherwise provided in paragraph (c), the defendant shall be given an immediate trial or, upon his request, the defendant shall be given the opportunity of posting security for his appearance at trial on a date which shall not be less than three (3) nor more than ten (10) days after his appearance, unless extended for cause shown, or unless the issuing authority fixes an earlier date upon request of the defendant or his attorney with the consent of the police officer.
      (c) Trial may be delayed when the defendant’s criminal record must be ascertained prior to trial as specifically required by statute for purposes of grading the offense charged. In such event, the defendant shall be given the opportunity of posting security for appearance at trial on a date which shall not be less than three (3) nor more than ten (10) days after the issuing authority’s receipt of the required information, unless extended for cause shown, or unless the issuing authority fixes an earlier date upon request of the defendant or his attorney, with the consent of the police officer.

      . 18 Pa.Cons.Stat.Ann. § 3929(b)(l)(iv) (Purdon 1976) which states: (b) Grading.
      (i) Retail theft constitutes a:
      (iv) Felony of a third degree when the offense is a third or subsequent offense, regardless of the value of the merchandise.

      . In appeals from a conviction in a summary proceeding, the Court of Common Pleas conducts a trial de novo. Pa.R.Crim.P. 67.

      . In view of our disposition of this case, we need not determine whether Appellant was arrested for retail theft as a summary offense or retail theft as a felony of the third degree.

      . Appellant attempts to analogize a violation of Rule 62 to a violation of Rule 1100. This analogy is inapt. Rule 1100(f) explicitly provides for the remedy of discharge where the Commonwealth fails to bring a defendant to trial promptly. Rule 62 contains no such remedy.


author: MONTGOMERY, Judge:

text:
    440 A.2d 576
    COMMUNITY ASSOCIATION OF POCONO FARMS, INC. v. RECRA-DEL CORPORATION. Appeal of Kenneth BRUSH and Helen Brush, His Wife.
    Superior Court of Pennsylvania.
    Argued Nov. 4, 1981.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied May 3, 1982.

      Edwin Krawitz, East Stroudsburg, for appellant.
    C. Daniel Higgins, Stroudsburg, for appellee.
    Before BROSKY, POPOVICH and MONTGOMERY, JJ.
   MONTGOMERY, Judge:

The Plaintiff-Appellee, Community Association of Pocono Farms, Incorporated (hereinafter referred to as the “Association”), had a judgment against the Defendant, Recra-Del Corporation, and filed execution proceedings against real estate owned by Recra-Del in order to enforce payment of the judgment. The judgment in question created a lien on 294 lots which were situated in 2 developments known as Pocono Farms and Smokey Ridge. Pursuant to the writ of execution, the Monroe County Sheriff had advertised the aforesaid lots for sale. The Appellants, Kenneth and Helen Brush, had acquired beneficial title from Recra-Del Corporation to 49 of the 294 lots which were all subject to the lien of the Appellee’s judgment. The Appellants filed a petition in the lower court requesting a stay of the execution and the release of their 49 lots from attachment and execution. They contended that the value of the total property attached by the Association, and scheduled for sale, was excessive in comparison to the amount of the Association’s judgment against Recra-Del Corporation.

The lower court held a hearing on the Appellants’ petition, and expert witnesses testified for both the Appellants and the Appellee concerning the fair market value of the property subject to the Appellee’s execution. After hearing all of the evidence, the lower court denied the Appellants’ petition to except their 49 lots from the execution sale, and further directed the sheriff to proceed with that sale. On this appeal, the Appellants contend that the lower court erred in determining the value of the property by disregarding evidence offered by the Appellants which purportedly established a value for the water system servicing the property. We must disagree.

Applicable practice would clearly allow the lower court to provide for the release of property from attachment and execution if good cause is shown. We find two Rules of Civil Procedure particularly relevant in the circumstances of the instant case. Rule 1272, dealing with attachment of property, provides the following in subsection (h):

“The court on petition of any party may, at any time after notice and hearing, release part of the attached property if the value of the property attached is excessive compared to the amount in controversy.”

In Vant v. Gish, 412 Pa. 359, 194 A.2d 522 (1963), our Supreme Court stated that the intention of Rule 1272(h) is: “. . . plainly to prevent a situation in which a plaintiff attaches property of a defendant many times in excess of even the most optimistic possible recovery”, (emphasis added) 412 Pa. at 369, 194 A.2d at 528. Rule 3119 deals with the release of property from levy, and provides that upon good cause shown, and the petition of any person or party in interest, the court may: “(2) release part of the property, if the value of the property levied upon is excessive compared to the amount of the judgment, interest and probable costs.” In the instant case, the lower court determined that the amount attached by the Plaintiff-Appellee was not excessive to the point which would justify the release of the 49 lots in which the Petitioner-Appellants had a beneficial interest. We can discern no abuse of discretion by the lower court in that determination.

The record shows that the Appellee Association had a judgment against the Defendant in the sum of $476,000.00. Further, there was uncontradicted testimony offered that in addition, the costs of the execution proceedings would total in excess of $34,000.00. At the hearing, the Appellant called an expert witness who testified that the fair market value of all of the properties subject to the execution was $800,-000.00. Included in his total valuation was the estimate that a water system servicing some of the properties subject to the challenged execution had a value of $250,000.00. He admitted he did not consider the financial records of the water company in making his appraisal and also admitted that he did not have any personal knowledge as to the condition of the water system, or the need for possible repairs or additional wells. In valuing the system, the Appellants’ expert testified that he was discussing replacement value, and did not speak to market value. He admitted that the system would not have a market value based upon its current income and further added that in order to create a market value, the system would have to be “revised”, and charges assessed by it to property owners would have to be “upgraded”.

The Appellee also provided expert testimony as to value. The Appellee’s expert placed a value on all of the property subject to execution at $405,000.00. He explained that the lots in question were not all in one location but were scattered throughout the development. He also related that the water system was not complete and that substantial additional footage was needed, both to improve it and to extend it to some of the lots in question. He testified that the water company evaluation was actually included in the value of the lots. He testified that many of the lots would be difficult to sell because they were scattered, in marsh areas, and were not even serviced by roads. The second expert called by the Association concluded that the total valuation for the property in question was $368,000.00. He described the total development as being “inactive” and stated that there was no marketing program under way for them. Further, he noted that a considerable amount of maintenance had been deferred, leaving the roads in disrepair and needing attention. He described the lots included in the execution as “picked-over lots that have been left over from a marketing program”. The president of the Association also testified. Particularly noteworthy was his disclosure that in excess of $42,000.00 in estimated repair costs were needed for the water system. He testified that the developer, the Defendant Recra-Del Corporation, had stopped selling lots at Pocono Farms approximately four to five years prior to the hearing, and that the roads, water company and utilities were not completed in the development. Finally, he testified that there was a commitment on behalf of the Association to deed over some 60 lots in the levied group to past purchasers who had never received their deeds from the Defendant. Such transfers were supposed to occur without any consideration.

After hearing all of this evidence, the trial judge decided that he could not release the Appellants’ 49 lots from the sale. He found that the property in question was not readily convertible to cash but would require either a bulk sale of the lots or a marketing program to be reinstituted at the development. Such procedures would have required a considerable expense on the part of any investor. As to the disputed valuation of the water company, the trial judge noted that the evidence was that the system was operating at a substantial loss, and had no attraction for an investor. The evidence of needed repairs and additional footage for the system was not contradicted. The judge found that the elimination of the $250,000.00 value from the estimate of the Appellants’ expert would result in a valuation not in excess of the debt, interest and costs due the Appellee. Thus, he concluded that there was no justification for the release of properties sought by Appellants.

We can certainly see no error in the lower court’s refusal to except the Appellants’ lots from the total group involved in the sheriff’s sale. The critical question to be resolved in these cases is whether the value of the property attached is “excessive” compared to the amount in controversy. See Rules 1272(h) and 3119. We are not presented in the instant case with a record establishing that the property attached by the Plaintiff-Appellee had a value many times in excess of the most optimistic possible recovery at sheriff’s sale. See Vant v. Gish, supra. In fact, the preponderance of the evidence indicates the contrary. Further, as to the disputed value of the water company, despite the claim of Appellants’ expert, it is clear that no investor would offer anything for that system at a sheriff’s sale. Thus, we must reject the contention that the water system had the value ascribed to it by the Appellants. Moreover, the Appellants did not present any convincing proof that the lots and other property remaining, if their petition was granted as to the 49 lots, would still have had a value clearly sufficient to protect the total interests of the Appellee in satisfying its judgment, interest and related costs. In all of these circumstances, we find no basis for a reversal of the lower court’s order.

Affirmed.


author:
VAN der VOORT, Judge:
      CAVANAUGH, Justice,

text:
    440 A.2d 579
    ROBERT MALLERY LUMBER CORPORATION, v. B. & F. ASSOCIATES, INC., A/K/A Valley Wood Products and United Penn Bank of Wilkes-Barre, Pennsylvania, Appeal of UNITED PENN BANK OF WILKES-BARRE, PENNSYLVANIA.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1980.
    Filed Jan. 19, 1982.
    Petition for Allowance of Appeal Denied June 4, 1982.

      Anthony J. Lumbis, Wilkes-Barre, for appellant.
    Daniel F. Glassmire, Coudersport, for appellee.
    Before HESTER, CAVANAUGH and VAN der VOORT, JJ.
   VAN der VOORT, Judge:

This is an appeal from judgment on the pleadings for $25,000 entered in favor of ROBERT MALLERY LUMBER CORPORATION, appellee (hereinafter, MALLERY LUMBER) and against the UNITED PENN BANK OF WILKES-BARRE, PENNSYLVANIA, appellant (hereinafter, THE BANK).

The Complaint consists of two Counts, the first against B. & F. ASSOCIATES, INC. (hereinafter, B. & F.), a purchaser of lumber products, for $21,714.36 and interest for lumber sold to it by Mallery Lumber, and the second Count against The Bank for $25,000 as guarantor of the purchase obligations of B. & F. to Mallery Lumber.

The Bank’s Answer denies liability and asserts by way of New Matter that any obligation it may have had to Mallery Lumber has been discharged. Mallery Lumber replied to the New Matter and The Bank moved for judgment on the pleadings. Responding to the Motion, the lower Court directed that Judgment be entered for $25,000 in favor of Mallery Lumber and against The Bank.

, The facts out of which this litigation arises are not in dispute. Mallery Lumber produces and supplies northern hardwood lumber in a variety of species, sizes and grades to its customers. B. & F. was a purchaser of lumber products from Mallery Lumber. On or about May 15, 1977, Mallery Lumber and B. & F. entered into negotiations concerning the terms on which Mallery Lumber would continue to produce and supply lumber to B. & F. on an on-going basis. Mallery Lumber wanted satisfactory assurance that its invoices would be paid. It was agreed at that time that B. & F. would attempt to negotiate an agreement with a reliable third party, preferably The Bank, whereby payments to Mallery Lumber would be assured. B. & F. undertook such a negotiation with The Bank and succeeded in obtaining a $50,000 line of credit of which $25,000 was to be reserved for purchases from Mallery Lumber.

Under date of June 8, 1977, The Bank notified Mallery Lumber of this agreement by a letter which read as follows:

Mallery Lumber Co.
Emporium
Pennsylvania 15834
Gentlemen:
RE: B. & F. Associates, Inc.
T/A Valley Wood Products, Inc.
This is to inform you that United Penn Bank has established a $50,000.00 line of credit for the above customer, of which $25,000.00 is reserved for purchases from Mallery Lumber Company.
We trust this will be sufficient to permit you to continue to serve the needs of our mutual customer.
Very truly yours,
W. B. Simmers
Senior Vice President
WBSdms
CC: B. & F. Associates, Inc.

Mallery Lumber accepted the terms stated in the letter of June 8 in the following reply under date of June 10:

Mr. Wesley B. Simmers
Senior Vice President
United Penn Bank
Wilkes-Barre, Pennsylvania 18711
Dear Mr. Simmers:
Your letter of June 8, 1977 re Valley Wood Products is acceptable for our needs except, due to an apparent oversight, it was not signed. The letter is, therefore, being returned for signature.
Very truly yours,
ROBERT MALLERY LUMBER
CORPORATION John T. Rogers
Controller
JTR:rpz
Enclosure

Thereupon, the Senior Vice President of The Bank signed the letter of June 8 and returned it to Mallery Lumber.

Unknown to Mallery Lumber, The Bank deposited $50,000 in the checking account of B. & F. on July 6, 1977, and on the same day B. & F. paid Mallery Lumber $27,478.23 in payment of its then outstanding indebtedness. Mallery Lumber had no notice of the bank loan or that The Bank considered its obligation to Mallery Lumber either fulfilled or terminated.

On the assumption that the letter of June 8 was in effect, Mallery Lumber made a series of sales to B. & F. between August 26 and December 9, 1977, in the aggregate amount of $38,213.36 B. & F. made payments on account which reduced the unpaid balance to $21,714.36, but defaulted thereafter. It is this unpaid balance, with interest, for which Mallery Lumber brought suit against The Bank on its $25,000 reservation of funds to cover purchases from Mallery Lumber.

The Bank contends that the letter of June 8 was not a Letter of Credit as defined in the Uniform Commercial Code, that it was not a guaranty because there was no consideration and no promissory intent, and that there was no promissory estoppel precluding a judgment in its favor because there had been no promise and no detriment to Mallery Lumber.

The Opinion of the Court below sustains its Order that Judgment for Mallery Lumber be entered on the pleadings on the grounds that the letter of June 8 was both a Letter of Credit and a continuing guaranty, and that The Bank was precluded by the doctrine of promissory estoppel from the contention that its undisclosed loan of July 6 and the ensuing payment to Mallery Lumber terminated any further obligation under the letter of June 8.

We agree with The Bank that the letter of June 8 was not a Letter of Credit as defined in the Uniform Commercial Code, 12A P.S. §§ 5-102/103. It was neither so entitled, nor did it promise direct payment upon the production of appropriate documentation.

However, the terms of the letter indicate that it was a guaranty, unlimited in time, that The Bank would reserve $25,000 for the payment of purchases by B. & F. The legal parameters of a continuing guaranty are well summarized in 38 Am.Jur.2d, Guaranty, § 63 as follows:

A continuing guaranty contemplates a future course of dealings between the creditor and the principal debtor, usually extending over an indefinite period of time. In its inception, a continuing guaranty is an offer from the guarantor and is accepted by the creditor each time the creditor performs a specified act (such as extending credit to the debtor). An offer for a continuing guaranty is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. At any period of time, therefore, the legal relation between the guarantor and the creditor involves both a contract (as to transactions between the creditor and principal debtor which have been completed) and an offer (as to future transactions between the creditor and principal debtor). When the continuing guaranty is thus properly analyzed, the offer to guarantee future obligations may be revoked by the guarantor, at least in the absence of a contrary provision in the guaranty instrument with the result that the guarantor will not be liable to the creditor on the latter’s extension of credit to the debtor subsequent to the receipt of notice of revocation. However, revocation of the continuing guaranty does not affect liability for past transactions which have created a contractual relationship between guarantor and creditor. (Emphasis added).

The letter contains internal evidence that it was intended as a continuing or on-going commitment. The term “reserved for purchases” necessarily implies that the guaranty was to be a continuing one. This is confirmed by the statement that The Bank was establishing a “line of credit” of which the $25,000 reservation for Mallery Lumber was to be a part. A “line of credit” indicates a continuing relationship and a future course of dealings. The fact that The Bank put no terminal date on its commitment reasonably implies that it was to continue until revoked.

The interpretation of the letter as a continuing guaranty until notice of revocation has been received seems clear to us, but if it were in doubt, the letter would be strictly construed against The Bank. Land Title Bank & Trust Co. v. Baron, 341 Pa. 241, 247, 19 A.2d 62 (1941).

The Bank denies liability as a guarantor on the contention that the letter was not intended as a promise to Mallery Lumber and that The Bank received no consideration from Mallery Lumber.

We cannot accept either argument. The letter was not a copy of a letter sent to B. & F.; it was addressed directly to Mallery Lumber and its stated purpose was to induce Mal-lery Lumber to continue to extend credit to B. & F. The letter concluded with the statement: “We trust this will be sufficient to permit you to continue to serve the needs of our mutual customer”. Otherwise, the line of credit would not meet the needs of B. & F. for a strengthening of its credit with Mallery Lumber, and The Bank would lose the sale of its B. & F. line of credit. The intent of the letter was to induce such a commitment from Mallery Lumber. In Mai-lery Lumber’s response to The Bank under date of June 10, it indicated that the letter “is acceptable for our needs”, whereupon The Bank signed and returned the letter of June 8, thereby concluding a bilateral agreement that Mallery Lumber would sell on credit and The Bank would guarantee payment up to $25,000. Had the letter been informational only, the signature of The Bank officer would not have been necessary, and the letter would have been addressed to B. & F. with a copy to Mallery Lumber.

The Bank received consideration from Mallery Lumber in the latter’s extension of credit which enabled The Bank to sell its line of credit to B. & F. Mallery Lumber has suffered a detriment in extending such credit to the extent of $21,714.36 to date.

But The Bank’s promise of guaranty required no consideration to make it legally enforceable. The circumstances created a promissory estoppel which replaced the need for consideration. Promissory estoppel is a relatively new name for an equitable doctrine that has its roots in the English Yearbooks. The principle has been formulated in § 90 of the Restatement of The Law of Contracts as follows:

A promise which the promissor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promissee and which does induce such action or forbearance is binding if injustice can be avoided only by the enforcement of the promise.

This statement of the doctrine is accepted as a correct statement of Pennsylvania law. Berliner v. Bee Em. Mfg. Co., 383 Pa. 458, 460, 119 A.2d 65 (1966); DiSante v. Russ Financial Co., 251 Pa.Super.Ct. 184, 188, 380 A.2d 439 (1977). The equitable history of this doctrine back to its common law origins, and its application in numerous Pennsylvania decisions, is detailed in Fried v. Fisher, 328 Pa. 497, 196 A. 39 (1938).

Consideration is not a prerequisite of promissory estoppel. As stated in Fried, 328 Pa. at 500, 196 A. 39.

[F]rom the earliest times there was recognized the principle that an estoppel might similarly arise from the making of a promise, even though without consideration, if it was intended that the promise be relied upon and in fact it was relied upon, and a refusal to enforce it would be virtually to sanction the perpetration of fraud or result in other injustice. (Emphasis added).

Judge Leonard Hand rationalized Promissory Estoppel as a “recognized species of consideration” in Porter v. Commissioner of Internal Revenue, 60 F.2d 673, 675 (1932). Chief Justice Cardozo described it as “a substitute for consideration or an exception to its ordinary requirements” in Allegheny College v. National Chautauqua County Bank, 246 N.Y. 369, 373, 159 N.E. 173 (1927).

Every requirement of a promissory estoppel is present in this case. The Bank was the promissor and Mallery Lumber the promisee in the letter of June 8. The Bank promised that $25,000 would be reserved from the line of credit to pay for B. & F.’s purchases from Mallery Lumber. This promise was given to induce Mallery Lumber to sell to B. & F. on credit terms. Mallery Lumber accepted the proposal in its reply of June 10 and thereafter extended credit. Under the doctrine of promissory estoppel, this promise will be held to be binding if injustice can be avoided only by its enforcement. That is the situation here, for if the promise is not enforced, Mallery Lumber loses payment of $21,714.36 for lumber sold on the strength of that promise.

■ We conclude that the letter of June 8 was a continuing guaranty made to Mallery Lumber by The Bank, and that The Bank, having failed to notify Mallery Lumber that it considered its obligation terminated, is bound by its promise of guaranty.

Affirmed.

CAVANAUGH, Justice,

dissenting:

I dissent from the court’s approval of the grant of judgment on the pleadings by the court below. Judgment on the pleadings should be granted only when a case is clear and free from doubt. Nevling v. Natoli, 290 Pa.Super. 174, 434 A.2d 187 (1981). It must be shown that there is no genuine issue of material fact. Coal Operator’s Casualty Co. v. Charles T. Easterby & Co. Inc., 440 Pa. 218, 269 A.2d 671 (1970). The majority sustains the entry of judgment on the pleadings against United Penn Bank of Wilkes-Barre on the basis of the doctrine of promissory estoppel as set forth in the Restatement of Contracts, 2nd, § 90 and also that the appellant agreed to act as a guarantor. At the outset we note that if the appellant bank made any promise in this case there is nothing to indicate that such a promise was supported by consideration. Consideration is an essential ingredient of a contract and a promise unsupported by consideration is unenforceable in the absence of justifiable detrimental reliance by the promisee. Cardamone v. University of Pittsburgh, 253 Pa.Super. 65, 384 A.2d 1228 (1978). However, under the doctrine of promissory estoppel consideration is not required to make a promise legally enforceable. Section 90 of the Restatement of Contracts, 2nd, provides:

§ 90. Promise Reasonably Inducing Action or Forbearance
(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.

We note that “[although the doctrine of promissory estop-pel has become fully recognized in Pennsylvania, it is not to be loosely applied; if it were, any promise, regardless of the complete absence of consideration, would be enforceable.” Fedun v. Mikes Cafe, Inc., 204 Pa.Super. 356, 368, 204 A.2d 776, 782 (1964). The doctrine of promissory estoppel is only used to enforce a promise unsupported by consideration in order to avoid injustice. Utility Appliance Corp. v. Kuhns, 393 Pa. 414, 143 A.2d 35 (1958). Our first inquiry in determining whether the doctrine of promissory estoppel applies is whether the letter of June 8, 1977 constituted a promise by the appellant bank to pay Robert Mallery Lumber Corporation a sum up to $25,000 for purchases by B. & F. Associates, if B. & F. Associates did not pay Mallery. The appel-lee, Robert Mallery Lumber Corporation, was aware of the necessity of proving an agreement by the appellant bank to pay for purchases by B. & F. Associates for it alleged in its complaint against B. & F. Associates and United Bank in paragraph XIX that the bank sent the letter of June 8,1977 to Robert Mallery Lumber Company “promising and guaranteeing payment of up to $25,000 for lumber purchased from Robert Mallery Lumber Corporation by B. & F. Associates, Inc.” Our reading of the letter of June 8, 1977 discloses no such promises and guarantees, so as to warrant the grant of judgment on the pleadings. The letter merely stated that a line of credit had been established and “$25,000 is reserved for purchases from Mallery Lumber Company.” In my opinion the record before us is not so clear that we should hold as a matter of law that the bank made a promise that is legally enforceable without consideration.

Another requirement for the application of the doctrine of promissory estoppel is that there must be reliance by the promisee upon the promise resulting in prejudice to the promisee. Department of Labor and Industry v. Unemployment Compensation Board of Review, 203 Pa. Super. 262, 199 A.2d 735 (1964); Harkins v. Zamichieli, 266 Pa.Super. 401, 405 A.2d 495 (1979). In this case, the record does not show to what extent, if any, the appellee relied on the June 8, 1977, letter in continuing to extend credit as appellee was paid the sum of $27,478.23 by B. & F. Associates on July 6, 1977, less than a month after the bank’s letter was sent. Would this not cause the appellee to question whether the $25,000 “line of credit” was consumed? Even assuming that the bank’s letter could be construed as a sufficient promise to pay the debt of B. & F. Associates the element of reliance by Robert Mallery Lumber is not clearly established.

The second thrust of the majority opinion is that the bank agreed to act as a guarantor for B. & F. Associates, Inc. Again, we are unable to find a clear promise by the bank to pay the obligations of B. & F. Associates if that company, which was the primary obligor, failed to do so. In Atlanta Corporation v. Ohio Valley Provision Co., 263 Pa.Super. 374, 376, 398 A.2d 183, 184 (1979) a bank sent the following letter to a seller of goods:

One of our valued customers, Ohio Valley Provision Company, has placed an order with your company in the amount of approximately $19,000.00 and we understand that you want a guarantee before releasing the meat products to them.
“You may be assured that this amount will be paid by the above mentioned company within 10 days. This company has been a customer of ours since their organization and maintains substantial balances with us.
s/K. W. Gundlach
President”

This court held that the letter from the bank did not constitute a guarantee of payment since it did not promise that the bank would pay the debt of the buyer. Similarly, in my opinion the appellant in this case did not unambiguously promise to act as guarantor of debts owed by B. & F. Associates to Robert Mallery Lumber Corporation. I would therefore direct that the judgment on the pleadings be reversed.

      . Included in that amount was a charge of 872.41 for consulting services and expenses at a houseware show.

      . Now found at 13 Pa.C.S. §§ 5102-03.

      . I agree with the majority that the letter from the United Penn Bank of Wilkes-Barre, Pennsylvania, appellant, to Robert Mallery Lumber Corporation of June 8, 1977, does not constitute a letter of credit within the meaning of the Uniform Commercial Code.


author: SUGERMAN, Judge:

text:
    440 A.2d 585
    COMMONWEALTH of Pennsylvania, v. Gerald STANTON, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 29, 1979.
    Filed Jan. 19, 1982.

      James A. Doherty, Scranton, for appellant.
    Robert A. Mazzoni, District Attorney, Scranton, for Commonwealth, appellee.
    Before SPAETH, STRANAHAN and SUGERMAN, JJ.

       Judge John Q. Stranahan, of the Court of Common Pleas of Mercer County, Pennsylvania, is sitting by designation.
      Judge Leonard Sugerman, of the Court of Common Pleas of Chester County, Pennsylvania, is sitting by designation.

   SUGERMAN, Judge:

Appellant pleaded guilty on January 28, 1976 to a charge of Theft by Receiving Stolen Property pursuant to a plea bargain and was sentenced to a term of imprisonment of not less than one nor more than four years. The sentencing judge directed that the sentence be served consecutively to a sentence upon an unrelated charge then being served by Appellant. Appellant filed a timely appeal in this Court from the judgment of sentence and we affirmed by per curiam order.

Appellant then filed a petition attacking his guilty plea pursuant to the Post Conviction Hearing Act (PCHA), contending that his guilty plea was unlawfully induced by the ineffective assistance of counsel who represented him at the time of his guilty plea. Appellant’s single specification underlying his charge of ineffectiveness was, and remains, the failure of counsel to file a motion to suppress an allegedly coerced incriminatory statement given by Appellant to the Pennsylvania State Police.

The lower court convened an evidentiary hearing upon Appellant’s PCHA Petition at which Appellant, his guilty-plea counsel, and Trooper Owczarski, the Pennsylvania State Policeman to whom Appellant made his incriminatory statement testified at length. Following the hearing, the court filed an opinion in which it found that counsel’s decision to forego filing a motion to suppress the statement had a reasonable basis designed to effectuate his client’s interests. The court further found Appellant’s statement to have been voluntarily and intelligently given, without coercion, and denied Appellant relief.

The findings of the lower court are set forth in its opinion: “This Court finds that counsel’s decision not to file a Motion to Suppress did have a reasonable basis designed to effectuate his client’s interests.
This Court finds from the evidence that the Defendant’s statements were voluntary, after a knowing and intelligent waiver of his constitutional rights to remain silent.
The Court further finds that there were no threats made against the Defendant or his family by any law enforcement personal or anyone acting in their behalf to induce any incriminating statements.” Id. at 2.

Appellant, on appeal, in addition to pursuing his contention that counsel was ineffective in failing to file a motion to suppress the statement, also asserts three errors that he contends resulted in a prejudiced and tainted PCHA hearing: (A) the refusal of the hearing judge to recuse himself; (B) the “court’s failure to completely transcribe all of the testimony” received at the hearing; and (C) the denial by the court of a motion made by Appellant’s counsel at the outset of the hearing to require the District Attorney to produce a prisoner incarcerated in New Jersey as a witness, and the refusal of the court to receive the testimony of two additional defense witnesses. We dispose of the latter three contentions before we discuss the stewardship of Appellant’s guilty plea counsel.

I.

ASSERTED PCHA HEARING ERRORS

(A.)

Appellant asserts that the PCHA hearing judge should have recused himself from the proceedings. In his brief filed here, Appellant notes that prior to the PCHA hearing, Appellant filed a civil suit in the United States District Court for the Middle District of Pennsylvania, against the Lackawanna County Prison Board. At the date the suit was instituted, the PCHA hearing judge sat as a member of the Prison Board. Although Appellant articulates no specific examples of bias or prejudice in the record, painting with a broad brush Appellant argues that the position of the hearing judge, as a defendant in Appellant’s civil action and at the same time, sitting as Appellant’s PCHA hearing judge, “. . . is a direct conflict of interest and reflects a material bias by [the judge] against Appellant”. Appellant’s Brief at 9.

The record made at the PCHA hearing indicates quite clearly that at no time did Appellant’s counsel request that the hearing judge recuse himself. Nor are any of the “facts” concerning Appellant’s civil action contained in the record. Such information, if it is that, appears for the first time in Appellant’s appellate brief.

The practice of setting forth facts in a party’s brief but not of record has been specifically condemned and we may not, as a reviewing court, consider them. In re Legislative Route 1018, 422 Pa. 594, 595 n. 1, 222 A.2d 906, 907 n. 1 (1966); Marine Bank v. Huhta, 279 Pa.Super. 130, 139 n. 5, 420 A.2d 1066, 1070 n. 5 (1980); Gee v. Eberle, 279 Pa.Super. 101, 120, 420 A.2d 1050, 1060 (1980); Pennsylvania Higher Education Assistance Agency v. Devore, 267 Pa.Super. 74, 77 n.3, 406 A.2d 343, 344 n. 3 (1979) (Quoting from In the Interest of Carroll, 260 Pa.Super. 23, 27 n. 4, 393 A.2d 993, 995 n.4 (1978)). As the Commonwealth Court succinctly put it, in Zinman v. Com. of Pa., Dept. of Insurance, 42 Pa. Cmwlth.Ct. 270, 400 A.2d 689 (1979):

“It is of course fundamental that matters attached to or contained in briefs are not evidence and cannot be considered part of the record ... on appeal. [Citations omitted]” Id., 42 Pa.Cmwlth. at 274, 400 A.2d at 691.

We further note that the party who asserts that a judge should be disqualified bears the burden of producing evidence establishing the bias, prejudice or unfairness necessitating recusal, Commonwealth v. Perry, 468, Pa. 515, 364 A.2d 312 (1976); Commonwealth v. Council, 491 Pa.Super. 434, 421 A.2d 623 (1980); Commonwealth v. Darush, 279 Pa.Super. 140, 420 A.2d 1071 (1980); Commonwealth v. McQuaid, 273 Pa.Super. 600, 417 A.2d 1210 (1980), and a failure to adduce competent evidence will result in a denial of a recusal motion. Commonwealth v. Darush, supra; Commonwealth v. Martin, 262 Pa.Super. 113, 396 A.2d 671 (1978). Most assuredly, we will not consider the issue on appeal in the absence of competent evidence or a record of any kind. Appellant’s contention is frivolous and he cannot prevail.

(B.)

Appellant next contends that a colloquy between the judge and Appellant at the conclusion of the PCHA hearing was not transcribed. Appellant asserts in his brief that the “missing colloquy evidences bias by the Court against the Appellant”. Appellant’s Brief at 8. As a result, Appellant argues, “he cannot receive a proper review” by this Court. Id. The Commonwealth contends, to the contrary, that no such colloquy occurred.

The record is devoid of any objection by Appellant to the transcript, as filed, and the transcript is certified by the hearing judge who then directed that it be filed. The parties agree that on January 11, 1979, Appellant’s counsel transmitted a letter to the Prothonotary of this Court complaining of the omission. Our Prothonotary directed the parties to submit the matter to the lower court for resolution of the dispute.

The parties also agree that the matter was then submitted to the PCHA hearing judge and that the judge did not recall any such colloquy and was satisfied that the transcript was complete.

Pa.R.A.P. 1922 sets forth the procedure to be followed in the event a party objects to a transcript as lodged. The Rule provides:

“[Rule 1922. Transcription of Notes of Testimony.] (a) General Rule.—Upon receipt of the notice of appeal the official Court Reporter shail proceed to have his notes transcribed, and not later than fourteen (14) days after receipt of such notice shall lodge the transcript (with proof of service of notice of such lodgment on all parties to the matter) with the clerk of the lower court. Such notice by the Court Reporter shall state that if no objections are made to the text of the transcript within five (5) days after such notice, the transcript will become a part of the record. If objections are made the difference shall be submitted to and settled by the lower court. ...”

Pa.R.A.P.1926 sets forth the procedures to be followed to correct a record and that Rule provides:

“[Rule 1926. Correction or Modification of the Record.]

If any difference arises as to whether the Record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by the court after notice to the parties and opportunity for objection, and the record made to conform to the truth ...”

At the very least, it is clear that Appellant failed to interpose an appropriate objection in accordance with the requirements of Pa.R.A.P.1922, and Appellant is bound by the transcript, as lodged. Commonwealth v. Percell, 274 Pa.Super. 152, 159 n. 4, 418 A.2d 340, 344 n. 4 (1979). It also appears, however, that the spirit, if not the letter of Pa.R.A. P.1926 was complied with and the “difference” between the parties as to whether the record “truly discloses what occurred in the lower court” was indeed submitted to the lower court and resolved by it. Appellant’s contention is baseless and we do not consider it.

(C.)

Continuing his attack upon his PCHA hearing, Appellant lastly contends that the hearing court prejudiced his right to a fair hearing when “it denied Appellant’s motion to call certain necessary witnesses”. Appellant’s Brief at 7. We briefly recount the events underlying Appellant’s contention as gleaned from the record. Appellant pleaded guilty to a charge of theft by receiving a truckload of stolen zinc ingots. At the outset of the hearing, Appellant’s counsel asked the court to direct the District Attorney to produce as a witness a prisoner then incarcerated in a New Jersey prison. Before ruling on counsel’s request, the court asked for an offer of proof. Appellant’s counsel responded, advising the court that if called, the prisoner witness could testify that at the time Appellant was apprehended, he was lawfully operating the truck containing the ingots, having been employed to do so. The court found the proposed testimony to relate to the question of Appellant’s guilt or innocence and thus irrelevant, and thereupon denied counsel’s request.

A few moments later, Appellant’s counsel advised the court that at Appellant’s request, he had subpoened two truckdrivers, only one of whom had been served, who would testify that when apprehended, Appellant was “legally and properly” engaged in the business of transporting zinc ingots. Neither witness was then present in court. Again, the court ruled that such testimony, directed as it was to the question of guilt or innocence, was irrelevant.

These rulings were obviously correct and Appellant’s argument to the contrary is frivolous. Appellant’s PCHA petition, and the amendments thereto, raise only the narrow issue of guilty plea counsel’s ineffectiveness in failing to move to suppress an allegedly coerced confession. Our Supreme Court has repeatedly held that neither Trial nor Appellate Courts in this Commonwealth may consider issues unless they are presented in properly filed PCHA petitions. See, e.g., Commonwealth v. Zillgitt, 489 Pa. 189, 413 A.2d 1078 (1980); Commonwealth v. Wilson, 482 Pa. 350, 393 A.2d 1141 (1978); Commonwealth v. Mitchell, 477 Pa. 274, 383 A.2d 930 (1978). The issues sought to be addressed by Appellant’s three proposed witnesses were indeed irrelevant to the single issue before the lower court and counsel’s offers of proof were properly refused. We discern no error.

II.

INEFFECTIVENESS OF COUNSEL

We finally consider Appellant’s principal contention that his guilty plea counsel was ineffective for failing to file a motion to suppress Appellant’s allegedly coerced confession.

It must first be remembered that Appellant has been afforded a hearing upon his allegation and has not prevailed. In reviewing the PCHA court’s determination, our task is not to engage in a de novo evaluation of the testimony presented at the PCHA hearing. Rather, we look to whether the PCHA court’s determination is supported by evidence of record and is otherwise free of legal error. Commonwealth v. Lutz, 492 Pa. 500, 424 A.2d 1302 (1981).

In Commonwealth v. Edwards, 273 Pa.Super. 351, 355, 417 A.2d 685, 687 (1979), we quoted from Commonwealth v. Lee, 478 Pa. 70, 75, 385 A.2d 1317, 1320 (1978) (which in turn quoted Commonwealth v. Sullivan, 472 Pa. 129, 145, 371 A.2d 468, 476 (1977)):

“The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding. See Commonwealth v. Hauser, supra.”

It will also be recalled that in order to successfully attack a guilty plea in a PCHA proceeding on the ground that it was the product of an involuntary pre-trial confession, a petitioner must demonstrate all of the following: that (1) the pre-trial confession was involuntary; (2) the guilty plea was primarily motivated by the confession; and (3) Appellant was incompetently advised to plead guilty in the circumstances rather than stand trial. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Instantly, the record amply supports the lower court’s finding that Appellant’s confession was voluntary and as a result, that Appellant failed to carry his burden.

At the PCHA hearing, Appellant’s guilty plea counsel testified that Appellant told him that Appellant actively sought out Trooper Owczarski for the purpose of confessing. This testimony was fully corroborated by the trooper himself, who testified that Appellant, while on bail as a result of other charges, called the trooper, made an appointment, later voluntarily appeared at the State Police barracks where he met with the trooper and an agent of the Federal Bureau of Investigation, and gave a detailed statement. There is not the slightest suggestion of coercion of any kind in the record. Quite the contrary, it clearly appears that Appellant was most anxious to confess his role in the crime to which he ultimately pleaded guilty. In addition, Appellant agreed with the Pennsylvania State Police and the District Attorney to testify against others implicated in his confession and he did so. The lower court properly could and did find Appellant’s statement entirely voluntary, and we will not disturb that finding on appeal. Commonwealth v. Lowery, 276 Pa.Super. 569, 419 A.2d 604 (1980).

The standard by which we determine the effectiveness of counsel is set forth in Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967):

“[0]ur inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Id., 427 Pa. at 604, 235 A.2d at 352.

At the same time we are reminded that “as counsel does not forego an alternative which offers a substantially greater potential for success when he fails to assert a baseless claim, counsel cannot be found to have been ineffective for failing to make such an assertion”. Commonwealth v. Roman, 494 Pa. 447, 451, 431 A.2d 936, 939 (1981) (quoting from Commonwealth v. Hubbard, 472 Pa. 259, 279, 372 A.2d 687, 696 (1977)).

Counsel testified that his interviews with Appellant and Trooper Owczarski convinced him that there was no conceivable basis upon which a motion to suppress could have succeeded, and further, the filing of such frivolous motion might well have impeded plea negotiations.

The record readily supports counsel’s determination in both respects and the lower court so found. Again, we will not disturb that finding on appeal. Commonwealth v. Roman, supra.

Affirmed.

      . 18 Pa.C.S.A. § 3925.

      . Commonwealth v. Stanton, 244 Pa.Super. 585, 371 A.2d 865 (1976).

      . Act of January 25, 1966, P.L. (1965) 1580, § 1, 19 P.S. §§ 1180-1 et seq. (Supp. 1979-80)

      . Appellant’s PCHA petition and an amendment thereto were filed pro se. Counsel was then appointed for Appellant and counsel filed a second amendment to the PCHA petition. The three petitions set forth a series of allegations relating to the allegedly coercive nature of the statement.

      . Appellant does not tell us the nature of the civil litigation, when it was commenced, or the posture of the litigation at the date of the PCHA hearing, and as we shall momentarily observe, the record of the PCHA hearing is devoid of such information.

      . At no time during the hearing did Appellant’s counsel even allude to the status of the hearing judge as a defendant in Appellant’s civil litigation. A defendant may for any reason he chooses, waive his right to have a judge disqualified, and if he does, he cannot be heard to complain following an unfavorable result. Commonwealth v. Corbin, 447 Pa. 463, 291 A.2d 307 (1972); Commonwealth v. Fields, 221 Pa.Super. 238, 331 A.2d 494 (1974).

      . The date stamp on the transcript of the hearing indicates that it was lodged in the office of the Clerk of Courts of Lackawanna County on December 28, 1978.

      . Pa.R.A.P. 1922(c) sets forth the procedure to be followed by the trial judge once an objection to a transcript is made pursuant to Pa.R.A.P. 1922(a).

      . The Note to Pa.R.A.P.1926 provides in part:
      “... This rule is intended to close a gap in the prior practice whereby the lower court could not correct an error discovered in writing an opinion under Rule 1925 ...”

      . In view of our disposition of this issue, we need not consider the question of the untimeliness of counsel’s request to secure the prisoner witness. See Commonwealth v. Reese, 237 Pa.Super. 326, 352 A.2d 143 (1975). It is also settled that the grant or denial of a motion to secure witnesses is a matter within the sound discretion of the lower court. Commonwealth v. Sullivan, 484 Pa. 130, 398 A.2d 978 (1979).

      . It will be recalled that in exchange for Appellant’s plea to the single charge of theft by receiving stolen property, the Commonwealth nol prossed nine other unrelated charges then pending against Appellant.

      . The lower court said, on the question of the plea bargain: “The credibility of this defendant is badly shaken by his admission of false statements to the Court and to others. The defendant argues that his counsel should have filed a Motion to Suppress prior to his plea. However, the evidence indicates that the Defendant wished to clean up all possible charges pending against him. He, therefore, entered into a plea bargain whereby admitting to this one charge, he had nine (9) other independent charges nol prossed. It is obvious that if his counsel attacked the statement concerning the Defendant’s admission to this one crime, there could be no plea bargain. What the Defendant is saying in reality is that he wanted a bargain whereby all charges were dropped and he received no additional prison time. However, the record shows that is not the bargain he made. Considering all the other charges pending against this Defendant, the Court finds his counsel’s action in recommending this plea bargain had a reasonable basis designed to effectuate his client’s interest.” Opinion, Walsh J., pp. 2-3.