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COMMONWEALTH v. WHITE (04/03/74)

SUPERIOR COURT OF PENNSYLVANIA


decided: April 3, 1974.

COMMONWEALTH
v.
WHITE, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1971, No. 557, in case of Commonwealth of Pennsylvania v. David O. White.

COUNSEL

Jonathan Miller, Assistant Defender, with him Michael L. Levy, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Milton M. Stein, Assistant District Attorney, with him Maxine J. Stotland, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Hoffman

[ 228 Pa. Super. Page 24]

In the instant appeal, we must decide the novel question of whether a defendant, who has been convicted in a municipal court proceeding, may relitigate a pretrial motion to suppress in a de novo trial at the common pleas court level.

Appellant, David O. White, was arrested in 1971, and charged with carrying a concealed deadly weapon. On September 9, 1971, appellant was tried before the

[ 228 Pa. Super. Page 25]

Honorable Charles L. Guerin, Jr., sitting as a Judge of the Municipal Court of Philadelphia.*fn1 Prior to trial, a motion to suppress was denied, and on the basis of the production of the disputed 10-inch butcher knife and the testimony of Officer Brozoski of the Philadelphia Police Department. Pursuant to Sched. Art. 5, § 16 of the Pa. Constitution,*fn2 the appellant took an appeal for a trial de novo to the Common Pleas Court of Philadelphia County, where his case was heard by the Honorable Curtis C. Carson, Jr., sitting without a jury on May 2, 1972. After denying appellant's application for a relitigation of the motion to suppress, appellant was tried and convicted on the aforesaid charge. Judge Carson thereafter imposed a suspended sentence.

Appellant's primary contention is that the denial of a rehearing on the motion to suppress was error and that the local rule of court on which the denial was based is unconstitutional.*fn3

On February 29, 1972, the President Judges of the Common Pleas and Municipal Court of Philadelphia promulgated General Court Regulation No. 72-7, which provides:

[ 228 Pa. Super. Page 26]

"Motions to Suppress shall be heard on the same day and immediately prior to the Municipal Court trial. The Judge hearing the motion to suppress will hear Page 26} same as a Common Pleas Court Judge. In the event such motion is denied and Defendant convicted, on appeal to the Common Pleas Court the motion may not be reinstated as part of the appeal." (Emphasis added).

Appellant contends that Reg. 72-7 contradicts and is repugnant to Pa. Const. Art. 5, Sched. § 16(r) (iii) which mandates a trial de novo in the common pleas courts. Appellant argues that a trial de novo encompasses not only the actual trial by jury, if requested, but a rehearing of all pretrial motions decided in the Municipal Court.

The extensive "Comments" to Gen. Ct. Reg. No. 73-8*fn4 set forth the precedential basis for this local court regulation. Despite the language of the Pennsylvania Constitution, that a defendant may as a matter of right take an "appeal for trial de novo . . . to the trial division of the court of common pleas . . .", the President Judges determined that there was authority for the proposition that a suppression hearing is not part of a trial [citing Jackson v. Denno, 378 U.S. 368 (1964)], and therefore an appeal for a trial de novo does not require a rehearing on the pretrial motions determined in the Municipal Court. Although the Supreme Court in Jackson mandated that the admissibility of evidence be determined independent of trial, this is not to say

[ 228 Pa. Super. Page 27]

    that a suppression hearing does not concern or is not intricately bound into the trial process.

In a case involving the same issue, the Honorable Judge Herbert Levin, on behalf of the court en banc of the Common Pleas Court of Philadelphia County reviewing the case law in perspective to 72-7, stated: "Jackson v. Denno . . . required that motions to suppress evidence be heard outside the presence of the jury, lest the panel be prejudiced by the evidence presented at the suppression portion of the case. It was anticipated that this procedure would afford a defendant greater protection than he would receive were all aspects of his case heard by the same jury.

"The Commonwealth would denigrate the importance of this phase of a criminal proceeding and prohibit a de novo hearing of the suppression motion. We reject that approach as violative of the concept of trial de novo, which requires a rehearing ab initio."*fn5 Commonwealth v. Rizzo, Oct. Term 1972, No. 1064 (filed March 30, 1973).

The evidence introduced at trial is often the crucial if not the only basis for conviction. If a defendant is denied the right to challenge the admissibility of incriminating

[ 228 Pa. Super. Page 28]

    evidence by his appeal for a trial de novo, there remains little worth in the "right of appeal" afforded the defendant.*fn6 Furthermore, since existing law permits an increase in sentence when a defendant appeals and obtains a trial de novo in the common pleas court following a conviction in Municipal Court,*fn7 the need is even greater to allow the defendant, who exercises his constitutional "right of appeal", to have the full benefit of a trial de novo. We hold that a defendant is entitled to a relitigation of a suppression motion when he appeals from a Municipal Court conviction to the Common Pleas Court. Because we believe that Gen. Ct. Reg. No. 72-7 is in conflict with our Constitution, it must be declared unconstitutional.*fn8

[ 228 Pa. Super. Page 29]

We reverse the judgment of sentence, and remand for a new trial consistent with this opinion.

Disposition

Judgment of sentence reversed and case remanded for new trial.

Dissenting Opinion by Jacobs, J.:

The majority holds that a criminal defendant who has had a suppression hearing in the Municipal Court of Philadelphia, and is then convicted in said court, is entitled to a second suppression hearing in the court of common pleas when he appeals and receives a trial de novo.

The Constitution of our Commonwealth clearly states that while a defendant does not have a right of trial by jury in the municipal court, "he shall have the right of appeal for trial de novo including the right to trial by jury to the trial division of the court of common pleas."*fn1 The Constitution gives him the right to trial, not a right to relitigate his pretrial motions. Rule 323 of the Pennsylvania Rules of Criminal Procedure on suppression of evidence distinguishes between a trial and a suppression hearing. It states that "a judge of the court shall fix a time for hearing, which may be either prior to or at trial . . . ." Pa. R. Crim. P. 323(e).*fn2 Rule 323 states in conclusion: "If the court

[ 228 Pa. Super. Page 30]

    determines that the evidence is admissible, such determination shall be final, conclusive and binding at trial, . . . but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility." [Emphasis added.]

I would hold that the appellant is entitled to but one suppression hearing in the municipal court, and to relitigate such pretrial motions with an appeal for a trial de novo would prove detrimental to the administration of criminal justice.

Appellant also argues that the knife found on his person pursuant to a stop-and-frisk by the arresting officer should have been suppressed by the municipal court. However, the arresting officer had received over the police radio information to the effect that a man dressed like appellant and on the same street as appellant was armed with a gun. As the arresting officer arrived at this location, he observed appellant "walking, stopping and turning around." Under these circumstances, it was proper for the officer to stop and frisk appellant. See Adams v. Williams, 407 U.S. 143 (1972); Terry v. Ohio, 392 U.S. 1 (1968).

Appellant's final argument is that his waiver of jury trial was unintelligent. Prior to his waiver, the following colloquy between appellant and his counsel appears on the record: "Q. Mr. White, you understand you have an absolute right to a jury trial in this matter? A. Yes. Q. And you understand if you chose to have a jury trial you would probably have to prove your case beyond a reasonable doubt and to the satisfaction of every single person on the jury? A. Yes. Q. And you understand if you waive that right, you can ask his Honor, Judge Carson to hear the evidence. And he alone would decide whether you are innocent or guilty; do you understand that? A. Yes." [Emphasis added.] At the end of the colloquy the appellant requested to be tried by the judge. Pa. R. Crim. P. 1101 on waiver of

[ 228 Pa. Super. Page 31]

    jury trial requires that "[t]he judge shall ascertain from the defendant whether this is a knowing and intelligent waiver and such colloquy shall appear on the record." Where, as in this case, the colloquy itself shows that the appellant was misinformed that the burden of proof would be on him if he chose to have a jury trial, there has been no intelligent waiver of his right to jury trial.

I would reverse the judgment of sentence and grant a new trial without a new suppression hearing.


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