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decided: April 28, 1978.



Edgar B. Bayley, District Attorney, Camp Hill, for Commonwealth, appellant.

Taylor P. Andrews, Public Defender, Carlisle, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files concurring and dissenting opinion. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Van Der Voort

[ 255 Pa. Super. Page 3]

On December 20, 1976, a warrant authorizing the search of the premises of the appellee, Michael Lynn Walls, was issued by a district justice in Cumberland County, Pennsylvania. The appellee was the prime suspect in the armed robbery of Fleming's Truck Stop in Middlesex Township, Cumberland County, which robbery occurred at 2:00 A.M., that day. The object of the search warrant was identifiable money, approximately $2,600 which had been taken in the robbery. Later that same day the search warrant was executed at the appellee's apartment and resulted in the seizure of a .25 caliber revolver found in plain view and the sum of $2,546 in currency found in a pancake mix box on the top of a cupboard in the kitchen. The money was wrapped in paper money wrappers and rubberbands. After the seizure of the money and the revolver the appellee admitted that he committed the Fleming's robbery earlier that day. He was arrested at that time and taken to the State police barracks for booking where he made additional incriminatory

[ 255 Pa. Super. Page 4]

    statements. He was charged with robbery, theft by unlawful taking and possessing the instruments of a crime.

Appellee filed a motion to suppress the physical evidence as well as the statements made subsequent to his arrest. Following a suppression hearing before the Honorable SYLVIA H. RAMBO the statements and the currency recovered at the defendant's apartment were suppressed by an order dated February 15, 1977. On February 17, 1977, the Commonwealth filed a Motion to Reopen the Suppression Hearing. A hearing on that motion was held on February 18, 1977, and by an order dated February 22, 1977, Judge RAMBO denied the request to reopen the hearing. The Commonwealth appealed to this Court from the Orders of February 15, 1977, and February 22, 1977.

In her opinion accompanying the order of February 15, 1977, Judge RAMBO stated that the Commonwealth failed to meet its burden of "going forward with the evidence and of establishing the admissibility of the challenged evidence" at the suppression hearing as required under Pa.R.Crim.P. 323(h). The lower court ruled that Pa.R.Crim.P. 2008(a) requires that a "law enforcement officer, upon taking property pursuant to a search warrant, shall leave with the person . . . from whose premises the property was taken a copy of the warrant and affidavit(s) in support thereof . . ." and the Commonwealth failed to prove that the officers supplied the appellee with a copy of the search warrant and additionally the Commonwealth failed to advise him of his rights prior to his statements. The lower court, in denying the Commonwealth's Motion for a rehearing, stated in its opinion in Support of that Order that the Commonwealth rested with its additional witness available and in the courtroom, and it failed to request a continuance when it discovered that the additional witness had to leave. It was not until after the opinion was filed in support of the order of suppression that the Commonwealth requested a re-hearing. The lower court cited authority supporting the proposition that it is within the discretion of the court to allow the Commonwealth to reopen its case after it has

[ 255 Pa. Super. Page 5]

    rested and in this case the lower court maintains that it did not abuse its discretion.

The Commonwealth argues on appeal that it was beyond the power of the lower court to apply the exclusionary rule with respect to the evidence of the money in wrappers because of a violation of the Pa.R.Crim.P. 2008. In support of its position the Commonwealth cites Commonwealth v. Jones, 245 Pa. Super. 487, 369 A.2d 733 (1977). In that case the lower court suppressed evidence seized because a police officer failed to verify the inventory of items seized when he made a return of the warrant to the issuing authority as provided by Rule 2009(a) of the Pennsylvania Rules of Criminal Procedure. We held that neither the lower court nor the Superior Court has the power to fashion a rule that requires the exclusion of evidence because of a violation of a Rule of Criminal Procedure. The general supervisory and administrative authority over all the courts is vested solely in the Supreme Court of Pennsylvania and if such a rule is to be promulgated or the present rule amended it is within the jurisdiction of the Supreme Court. Therefore in Jones we reversed the order of the lower court suppressing the evidence. We are confronted with the exact same issue in this case. The exclusion of the money was based solely on the fact that the law enforcement officers did not leave a copy of the warrant and the affidavit(s) in support thereof with the defendant as required by Pa.R.Crim.P. 2008(a).

The suppression of the statements made by the defendant present a somewhat different situation. The lower court did not find as a matter of fact that appellee's statement was obtained ...

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