Appeal from judgment of Court of Quarter Sessions of Mercer County, June T., 1965, No. 12, in case of Commonwealth of Pennsylvania v. Clifford Pinno.
Michael J. Wherry, for appellant.
Joseph J. Nelson, Assistant District Attorney, with him Edward M. Bell, District Attorney, for Commonwealth, appellee.
Ervin, P. J., Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Wright, J., absent). Dissenting Opinion by Hoffman, J. Montgomery and Jacobs, JJ., join in this dissent.
[ 211 Pa. Super. Page 434]
The six judges who heard the argument of this appeal being equally divided in opinion, the judgment of sentence of the court below is affirmed.
Dissenting Opinion by Hoffman, J.:
Defendant was charged and convicted of burglary. During the prosecution of the trial, the defendant moved to suppress certain evidence taken from his automobile on the ground that the search and seizure was
[ 211 Pa. Super. Page 435]
illegal. No prior motion, required by Rule 2001 (b) of the Rules of Criminal Procedure, had been filed to suppress this evidence. That Rule provides in part that: "An application for relief under this Rule shall be made not later than five days before the trial . . ." The Rule further provides, however, that: "An application may be made, . . . at any time until the evidence is offered at the trial if opportunity therefor did not previously exist, . . . or the interests of justice require it." At trial, the lower court dismissed the jury to hold a hearing to determine whether defendant waived his right to suppress the evidence and whether the evidence should be suppressed.
At the conclusion of the hearing, the court stated: "1. That there was an illegal search and seizure under the circumstances of this case. 2. There is an issue of fact as to whether the defendant in failing to file an application to suppress the evidence, more than five days prior to the commencement of trial, ...