No. 260 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, at No. 850 C.D. 1976.
Frederic G. Antoun, Jr., Assistant Public Defender, Harrisburg, for appellant.
Peter J. Anderson, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, Harrisburg, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files an opinion in support of affirmance in which Cercone and Van der Voort, JJ., join. Spaeth, J., files an opinion in support of reversal in which Jacobs, President Judge and Hoffman, J., join. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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The six Judges who decided this case being equally divided, the judgment of sentence is affirmed.
Opinion IN SUPPORT OF AFFIRMANCE.
After a jury trial, appellant was convicted of possession with intent to manufacture or deliver controlled substances,*fn1 namely heroin and cocaine. Post-trial motions were denied, and appellant was sentenced to not less than five nor more than ten years confinement at a state correctional institution.
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For the reasons stated herein, we would affirm the lower court's judgment.
The facts necessary for resolution of this appeal are the following. At trial, two state police officers testified that on March 17, 1976, approximately eight state troopers appeared at 344 Woodbine Street, Harrisburg, a three story residence, to execute a search warrant. Trooper James Drenning knocked on the front door. Drenning testified that a woman "came to the front door and asked who was there and I replied, Jimmy. And she said, Jimmy who, and she opened the door. I said, state police, search warrant, proceeded past her to the rear portion of the home." (N.T. 19). Drenning testified that to his knowledge all of the troopers had their weapons drawn when the door was opened. At the conclusion of this testimony, defense counsel requested an opportunity to investigate further the execution of the search warrant and the possibility of suppressing seventy-six bags of heroin which the troopers testified appellant dropped to the floor during the search. The court denied the request as untimely because no pre-trial suppression motion had been filed.
Appellant raises several arguments on appeal. First, appellant contends that he had a right to move for suppression during trial, asserting that defense counsel could not reasonably have been expected to discover the impropriety prior to trial. The lower court echoed our oft repeated response to such an assertion. Pa.R.Crim.P. 323 provides the precise mechanism for suppression of evidence allegedly obtained in violation of a defendant's constitutional rights.
"[I]t is clear that if a defendant fails to raise suppression issues prior to trial, he may not litigate them for the first time at trial, in post-trial motions, or on appeal." Commonwealth v. Throckmorton, 241 Pa. Super. 62, 66, 359 A.2d 444, 446 (1976) (citations omitted).
Appellant's attempt to come within that portion of Pa.R.Crim.P. 323(b) which excuses one for failure to file for suppression at least ten days prior to trial where "the opportunity did not previously exist, or the interests of
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justice otherwise require" is patently without merit. Appellant argues that he was not personally named in the warrant and was not the individual who received the troopers at the door. Therefore, it is asserted, since appellant was not the direct object of the search, one could not expect his counsel to investigate the warrant's execution.
This is not a case where there was no opportunity to learn the facts which might possibly have formed the basis of a suppression request. Instead, it is a simple case of counsel's failure to act, for whatever reason. The very nature of the case, charging possession, should have alerted counsel to inquire into the seizure of physical evidence. Appellant testified that he was a good friend of the woman who opened the door to the troopers and who could have related exactly what occurred at the door. From the record and from appellant's argument on appeal, we find nothing indicating that appellant lacked the opportunity to learn of the warrant's execution prior to trial. Simple failure to apprise oneself of facts ...