Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1970, No. 868, in case of Commonwealth of Pennsylvania v. Clarence Jackson.
Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Robert B. Mozenter, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 223 Pa. Super. Page 498]
This case presents two issues: whether in a criminal case a motion in arrest of judgment may be granted for insufficient evidence upon a record diminished by exclusion of certain evidence actually received; and whether such a motion may be granted for reasons, not appearing on the record's face, of judicial economy, protection of a defendant, and judicial fairness.
On October 20, 1970, detectives of the Philadelphia district attorney's office obtained and executed a search warrant for a house in Philadelphia occupied by the defendant and his wife. One of the officers testified at a subsequent suppression hearing that upon the detectives' approach to the house he observed someone looking through the venetian blinds in the front door and heard a voice yell, "It is the cops; it is the cops." He stated that he then heard footsteps inside the house. Without further delay and without verbal announcement of identity or purpose, the officers forced the door open and entered the premises. Their search produced
[ 223 Pa. Super. Page 499]
a quantity of heroin, as a result of which defendant was indicted for possession of narcotic drugs.
On February 1, 1971, defendant filed an application to suppress evidence obtained in the search, alleging that the warrant was issued without probable cause. Having found the existence of probable cause, the suppression hearing judge denied the application and defendant was subsequently tried non-jury before another judge. Following a verdict of guilty of possession of narcotic drugs, defendant filed timely motions in arrest of judgment and for a new trial. On August 23, 1972, the trial judge granted the motion in arrest of judgment.
From the lower court's order, the Commonwealth appeals.
In its opinion in support of the order arresting judgment, the lower court relies upon two grounds: (1) insufficiency of the evidence and (2) the interest of justice, as represented by avoidance of a retrial which would lack sufficient evidence for conviction, avoidance of further burdens upon a defendant whose constitutional rights have been seriously violated, and fairness in the judicial process. Both of these grounds are premised upon an assumption that the suppression hearing judge erred in refusing to exclude ...