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decided: March 29, 1976.


Appeal from judgment of sentence of Court of Common Pleas of Blair County, No. 847 of 1974, in case of Commonwealth of Pennsylvania v. Jac J. Ruckinger.


John Woodcock, Jr., Public Defender, for appellant.

William J. Haberstroh, Assistant District Attorney, and Amos C. Davis, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Watkins, P.j., and Van der Voort, J., join in this dissenting opinion.

Author: Hoffman

[ 239 Pa. Super. Page 523]

Appellant contends that the evidence derived from information gained during his illegal arrest was the "fruit" of his illegal detention and, therefore, should have been inadmissible at his trial.

On March 20, 1974, the appellant and a companion were driving slowly in appellant's automobile through a commercial area of Lock Haven, Altoona. Detective Sergeant Eichenlaub of the Lock Haven Police Force noticed the appellant's automobile and began to follow it on a parallel street. When Officer Eichenlaub lost sight of the car, he drove to the street where appellant had been traveling and found appellant's vehicle unoccupied. He then commenced a search for the occupants of the car. About a block from the car, the officer noticed the appellant walking down the street in a normal manner. He stopped the appellant, who fully identified himself and answered all questions. During the questioning, Officer Eichenlaub received a radio call that an individual with a firearm had been apprehended in the vicinity. At this time, Officer Eichenlaub did not know whether the individual with the firearm had been in appellant's automobile, or whether that individual had committed any crime in concert with the appellant. Nevertheless, the appellant was taken into custody and placed under arrest.

The appellant was taken to Lock Haven Police headquarters, where he underwent interrogation for one and one-half hours. In the presence of an officer, the appellant was then permitted to place a telephone call to his father. During the call, appellant told his father to "get rid of the stuff" or to "take care of his things."*fn1 The officer overheard the telephone conversation, and as a

[ 239 Pa. Super. Page 524]

    result, a police unit was dispatched to appellant's father's home. As the police unit arrived at the residence, appellant's father was driving away. The police stopped his car on the highway, and with his consent, searched the automobile. The search revealed several guns which subsequently proved to be stolen.

Appellant was charged with burglary and receiving stolen goods. On September 16, the appellant filed a motion to suppress evidence, which was denied by the lower court. At appellant's trial on January 29, 1975, the lower court granted appellant's demurrer to the charge of burglary but he was found guilty of receiving stolen goods. Appellant's oral post-trial motions, made immediately after trial, were denied. Appellant was sentenced to three to ten years imprisonment; this appeal followed.

Because appellant's oral post-trial motions were made after the effective date of Commonwealth v. Blair, 460 Pa. 31, 331 A.2d 213 (1975), we must determine whether appellant has preserved his arguments for appeal. In Commonwealth v. Blair, supra at 33 n.1, 331 A.2d at 214 n.1, our Supreme Court stated: "[T]he Pennsylvania Rules of Criminal Procedure, Rule 1123(a), 19 P.S. Appendix, requires written post-trial motions. The practice in some judicial districts of ignoring the requirements of Rule 1123(a) is condemned. Henceforth, issues not presented in compliance with the rule will not be considered by our trial and appellate courts." In Commonwealth v. Irwin, 460 Pa. 296, 299, n.3, 333 A.2d 735, 737, n.3 (1975), our Supreme Court urged "the courts and counsel to adhere to Rule 1123, Pa.R.Crim.P., 19 P.S. Appendix."

Rule 1123(a) provides: "Within seven (7) days after a finding of guilt, the defendant shall have the right to file written motions for a new trial and in arrest of judgment . . . ." Rule 1123(b) on the other hand, provides: "If the defendant agrees on the record, the post-verdict motions may be made orally at the conclusion of the trial. . . ."

[ 239 Pa. Super. Page 525]

(Emphasis supplied). In Commonwealth v. Blair, supra, the Court apparently condemned the practice in some judicial districts of making oral post-trial motions at a time other than the conclusion of trial. Since appellant's post-trial motions were made at the conclusion of trial in ...

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