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COMMONWEALTH PENNSYLVANIA v. LOVE HARMON (11/24/76)

decided: November 24, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
LOVE HARMON, APPELLEE



COUNSEL

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Maxine Stotland, Asst. Dist. Atty., Philadelphia, for appellant.

John W. Packel, Asst. Defender, Chief, Appeals Div., Defender Assn. of Philadelphia, Douglas Riblet, Philadelphia, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., filed a dissenting opinion in which Roberts, J., joined.

Author: Nix

[ 469 Pa. Page 492]

OPINION OF THE COURT

The singular question presented in this appeal is whether the Constitution of this Commonwealth mandates that an accused who has been tried and convicted in the Municipal Court and who is entitled to a trial de novo in the Court of Common Pleas is also entitled to a relitigation of a previously determined pre-trial motion to suppress evidence. Relying upon its decision in Commonwealth v. White, 228 Pa. Super. 23, 324 A.2d 469 (1974), a majority of the members of the Superior Court ruled that General Court Regulation 72-7, promulgated by the President Judges of the Court of Common Pleas and the Municipal Court, both of Philadelphia County, was unconstitutional and reversed the judgment of sentence.*fn1 Commonwealth v. Harmon, 229 Pa. Super. 326, 324 A.2d 473 (1974). We granted allocatur and for the reasons that follow we now reverse the order of the Superior Court.*fn2

On May 23, 1972, Love Harmon, appellee, was tried and convicted in the Municipal Court for the possession of narcotic drugs. Prior to the trial, appellee had unsuccessfully contested the legality of his arrest by way of a pre-trial motion to suppress prejudicial evidence obtained during the asserted illegal detention. After conviction the trial judge sentenced appellee to a term of imprisonment of six to twelve months. Thereupon, pursuant to the Act of October 17, 1969, P.L. 259, § 18, as amended, Act of July 14, 1971, P.L. 224, No. 45, § 1, 17 P.S. § 711.18 and the Pennsylvania Constitution, Schedule

[ 469 Pa. Page 493]

Art. V, § 16(r)(iii), appellee appealed his conviction as a matter of right to the Court of Common Pleas and demanded a trial de novo. On September 8, 1972, when trial was to begin, appellee requested a relitigation of the suppression motion which had previously been denied in the Municipal Court. Acting in accordance with General Court Regulation 72-7, the trial judge refused to hold a second evidentiary hearing on the issue. Appellee was subsequently tried and again convicted of possession of narcotics and after the disposition of post-trial motions appellee was sentenced to a term of imprisonment of not less than six nor more than twelve months. As has been stated, on appeal to the Superior Court the judgment of sentence was reversed and a new trial awarded. The ruling of the Superior Court was predicated on the belief that General Court Regulation 72-7 was in conflict with the Constitution and therefore invalid.

The Schedule to Article V of the Pennsylvania Constitution, Section 16(r)(iii), after conferring jurisdiction in certain criminal cases in the Municipal Court, provided:

"In these cases, the defendant shall have no right of trial by jury in that court, but he shall have the right of appeal from trial de novo including the right to trial by jury to the trial division of the court of common pleas."*fn3

On February 29, 1972, the President Judges of the Court of Common Pleas of Philadelphia County and the Municipal Court of Philadelphia issued a joint regulation which was designated as General Court Regulation 72-7 and provided:

"Motions to suppress shall be heard on the same day and immediately prior to the ...


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