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.
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.
[ 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 ...