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COMMONWEALTH v. DEMICHEL (06/13/69)

decided: June 13, 1969.

COMMONWEALTH, APPELLANT,
v.
DEMICHEL



Appeal from order of Court of Common Pleas of Philadelphia County, Feb. T., 1967, No. 1535, in case of Commonwealth of Pennsylvania v. Adam DeMichel.

COUNSEL

Paul R. Michel, Assistant District Attorney, with him Anne T. Welsh and James D. Crawford, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Lenard H. Sigal, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.

Author: Spaulding

[ 214 Pa. Super. Page 393]

This is an appeal by the Commonwealth from the granting of a motion in arrest of judgment following the conviction of appellee Adam DeMichel for establishing and maintaining an illegal lottery.

The appellee was arrested on January 14, 1967, after a search of his home revealed he was in possession of a substantial quantity of lottery paraphernalia.

[ 214 Pa. Super. Page 394]

Prior to trial, appellee presented a motion to suppress the evidence seized during the search on the grounds that the search warrant was defective and that police forcibly executed the warrant without announcement of their authority and purpose. After hearing, the motion was denied by Common Pleas Court Judge Charles L. Guerin.

At trial before Judge Herbert S. Levin, also of Common Pleas Court, the seized evidence was admitted over objection and appellee was adjudged guilty by the court. Subsequently, appellee renewed his attack on the legality of the execution of the warrant in a motion in arrest of judgment, which was granted by Judge Levin.

Two questions are presented in this appeal: first, whether a trial judge has the authority to consider a post-trial motion alleging that evidence admitted at trial was illegally seized when another judge has held the search lawful after a pretrial suppression hearing under Rule of Criminal Procedure 2001; and, second, whether the search of appellee's residence pursuant to a search warrant was unlawful because of the failure of the police to announce their authority and purpose and afford the occupants a reasonable time to open the door.

The first question, that of the authority of the trial judge to consider the motion in arrest of judgment, rests upon whether an order dismissing a petition to suppress evidence under Rule 2001 is a final order conclusive in all further proceedings at the trial level. We hold that it is, and it was error for the trial court to grant the motion in arrest of judgment.

Rule 2001 provides a comprehensive method for the pretrial litigation of the legality of searches and seizures and is the counterpart of Rules 323 and 324, which deal with ...


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