Appeal, No. 110, April T., 1962, from judgment of Court of Oyer and Terminer of Allegheny County, Feb. T., 1960, No. 24, in case of Commonwealth of Pennsylvania v. John Czajkowski. Judgment affirmed.
Alvin D. Capozzi, with him Capozzi & Apple, for appellant.
William Claney Smith, Assistant District Attorney, with him Edward C. Boyle, District Attorney, for Commonwealth, appellee.
Before Rhodes, P.j., Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ.
[ 198 Pa. Super. Page 512]
Defendant has appealed from a conviction and sentence on a charge of burglary. The conviction rested in part on circumstantial evidence which showed that defendant's car was observed at the scene of the crime.
[ 198 Pa. Super. Page 513]
Furthermore, paint chips and burglary tools were found by the police in defendant's car parked in front of the police station following defendant's arrest. At the trial on June 7, 1961, defendant moved to exclude such evidence for the reason that it was allegedly obtained under circumstances amounting to an unreasonable search and seizure. The court below refused to exclude the evidence, and subsequently overruled defendant's motions for new trial and in arrest of judgment based on such grounds. On appeal defendant raises the single question that the conviction, based on illegally obtained evidence, cannot be sustained under the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, handed down on June 19, 1961.
Appellant made no preliminary motion. He first objected to the evidence allegedly obtained through an unreasonable search and seizure when offered by the Commonwealth at the trial. The decision in Mapp v. Ohio, supra, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, holds only that evidence obtained as the result of an unreasonable search and seizure cannot be used as the basis for conviction in a state court. The Mapp case does not purport to prescribe the procedure by which the legality of evidence obtained through search and seizure can be raised. The Supreme Court of the United States has expressly stated it is incumbent upon the states to establish their own procedure in civil and criminal matters consistent with due process. "The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States." Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 91 L.Ed. 172, 175. See Kariher's Petition (No. 1), 284 Pa. 455, 470, 131 A. 265; Eiffert v. Pennsylvania Central Brewing Company, 141 Pa. Superior Ct. 543, 549, 15 A.2d 723.
It is clear that objection to evidence allegedly illegal as having been obtained through an unreasonable
[ 198 Pa. Super. Page 514]
search and seizure should be made promptly. The practice under Rule 41(e) of the Federal Rules of Criminal Procedure is reviewed by Mr. Justice FRANKFURTER in the recent case of DiBella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 (March 19, 1962). The gist of the federal practice appears to be that the motion to suppress evidence allegedly obtained illegally through an unreasonable search and seizure should be made prior to trial unless defendant was not aware of the grounds for the motion.*fn1 It is unnecessary to decide at this time the procedural point of whether defendant's objection to the questioned evidence was timely and ...