Appeal from order of Superior Court, Oct. T., 1969, No. 442, affirming judgment of sentence of Court of Quarter Sessions of Clinton County, Jan. T., 1968, No. 6, in case of Commonwealth of Pennsylvania v. Lee Port Johnson, Jr.
J. Michael Williamson, Public Defender, for appellant.
Bernhard Dohrmann, District Attorney, for Commonwealth, appellee.
Bell, C. J., Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Cohen and Mr. Justice Roberts concur in the result. Mr. Justice Jones took no part in the consideration or decision of this case.
On May 1, 1968, appellant, Lee Port Johnson, Jr., was found guilty by a jury of burglary, larceny and receiving stolen goods. His post-trial motions were denied; the Superior Court affirmed, with Judge Montgomery filing a dissenting opinion in which Judge Hoffman joined; we granted allocatur.
Having examined the record carefully, we believe that only one issue raised by the appellant merits discussion: the same issue which prompted Judge Montgomery to write his dissenting opinion in the Superior Court. The facts surrounding this issue are as follows:
The testimony showed that the appellant and an accomplice, Robert H. Miles, who was the principal witness against him, broke into the Harder Sporting Goods store in Lock Haven on December 18, 1967, where they stole three handguns, a rifle, a quantity of shells and other items. One of the handguns was a Derringer.
On January 9, 1968, appellant was arrested in Hollidaysburg, Blair County, Pennsylvania, in response to an arrest warrant issued out of Clinton County. On January 10, 1968, appellant made certain statements which led to the discovery of a .22 Derringer pistol by the Pennsylvania State Police. On April 23, 1968, after indictment and appointment of counsel, appellant filed an application for the suppression of evidence in which he requested in particular that certain physical evidence, including the .22 Derringer, be declared the fruit of an unconstitutionally elicited statement and that such physical evidence be suppressed and prohibited from being introduced at trial. A hearing on the suppression application was held on April 26, 1968. Although the court made certain findings of fact, no decision on the application itself was reached.
At the trial commencing April 30, 1968, after most of the Commonwealth's case had been presented, including the testimony of Robert D. Smith, Robert H. Miles, and Theron Rosalie Heflin, the court ordered the .22 Derringer suppressed, as well as the statement made to the trooper as to the whereabouts of the gun because the statement had been made without the proper Miranda warnings.
Appellant contends that the various references made to the .22 Derringer by the district attorney, the Commonwealth's witnesses and the court itself, were introduced into evidence in violation of Rules 2000 and 2001 of the Pennsylvania Rules of Criminal Procedure and thus require a new trial. ...