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COMMONWEALTH PENNSYLVANIA v. KENNETH PAGE (03/31/77)

decided: March 31, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
KENNETH PAGE, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Lycoming County, Criminal Division, No. 74-10, 790. No. 1390 October Term, 1976.

COUNSEL

Kenneth D. Brown, Assistant Public Defender, Williamsport, for appellant.

Allen E. Ertel, District Attorney, Williamsport, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion in which Hoffman and Cercone, JJ., join.

Author: Watkins

[ 246 Pa. Super. Page 382]

This is an appeal from the judgment of sentence of the Court of Common Pleas of Lycoming County, Criminal Division, by the defendant-appellant, Kenneth Page, after conviction of possession of an unregistered firearm, corruption of minors and other offenses; and from the denial of post-trial motions. The principal issue raised in this appeal is that the court below erred in denying his request for a pre-trial suppression hearing.

Appellant was represented by the Public Defender from August 9, 1974, and on March 7, 1975, his case was assigned to another public defender on the same staff. On March 14, 1975, appellant's new attorney made application for a pre-trial suppression hearing which was denied by the court below as trial was scheduled for March 17, 1975.

We find that the motion for the suppression hearing was properly denied under Pa.R.Crim.P. 323(b), which provides: "Unless the opportunity did not previously exist, or the interests of justice otherwise require, such application [to suppress evidence] shall be made only after a case has been returned to court and not later than ten days before the beginning of the trial session in which the case is listed for trial . . ." It is undisputed that the motion for the suppression hearing was not timely made. Our discussion is limited to a consideration of whether the opportunity for filing the motion did not previously exist, or the interests of justice requires the grant of the suppression hearing.

The appellant was represented by counsel continuously from August 9, 1974 to the date of trial. Although

[ 246 Pa. Super. Page 383]

    he was in Farview State Hospital from November, 1974, to February 3, 1975, he had sufficient opportunity, through his counsel, to timely file the motion for a suppression hearing. It is significant that the subject matter of the motion was a suitcase which belonged to appellant, in which stolen coins and other goods were allegedly placed. Appellant was obviously aware of the existence of the subject matter he desired suppressed long before the time for filing the motion had elapsed.

Finally, appellant contends that the "interest of justice" requires that he be granted a suppression hearing. We find that this argument is without merit. A court has discretion in granting a motion for a suppression hearing where requested in the interests of justice. Commonwealth v. Pinno, 433 Pa. 1, 248 A.2d 26 (1968). Justice does not compel that granting of the motion in this case. Appellant was represented by a public defender for almost seven months when the case was turned over to another defender on the same staff shortly before trial was scheduled. No reason is given why the case was assigned to a new lawyer at this late stage in the proceeding. The court below properly observed that "[T]he orderly administration of justice would be ill-served if we interpreted Rule 323 to be so ...


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