NO. 1456 OCTOBER TERM, 1977, Appeal from Judgments of Sentence of the Court of Common Pleas of Philadelphia County at Nos. 2426 and 2427 December Term, 1975. Trial Division, Criminal Section
Lee Mandell, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 574]
Appeal is taken from judgments of sentence rendered following a jury trial and verdicts of guilty of robbery and criminal conspiracy. "Crimes Code", Act of 1972, Dec. 6, P.L. 1482, 18 Pa.C.S. §§ 3701 and 903. This trial commenced on December 16, 1976, after a mistrial had been granted in the case due to a deadlocked jury. Post-trial motions were made and denied.
Concisely stated, these are the facts. In the evening of October 18, 1975, defendant entered a bar in North Philadelphia and ordered a quart bottle of beer, for which he paid. Then he ordered port wine and again paid. Shortly thereafter he informed the bartender that "this is a stickup," pointing at him what appeared to be a shotgun, at trial identified as an inoperable air, or "BB" gun. The defendant ordered everyone to enter the rest rooms located at the rear of the bar room, and the four or five customers, bartender, and one other employee, did so. The bartender noticed, as he was leaving the room, that someone was with appellant Middleton. A few minutes later all emerged to find the bar vacant except for one customer, named Cash, who had all the while refused to move from his bar stool. However, the cash had been removed from the cash registers. The police were called.
The bartender testified that he did not see defendant again until several weeks later (November 13th) when he appeared in the bar, stated "this is a holdup", and ordered everyone to the rest room. Again defendant was in the company of another, but on this second occasion, while the
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intruders were asking for the money, the police entered and cut short their criminal activity.
At the beginning of trial, the defense requested reconsideration of a pre-trial suppression of identification question which had been presented to the court in the prior trial, which had resulted in mistrial. In that first trial, the matter was disposed of adversely to the defendant. The court below in the case now on appeal refused reconsideration. Appellant argues that this was error. We do not agree. Pa.R.Crim.P. Rule 323 sets the procedure applicable to suppression issues. Section "j" states: "If the court determines that the evidence is admissible, such determination shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable, but nothing herein shall prevent a defendant from opposing such evidence at trial upon any ground except its admissibility." The "comment" to the Rule in effect at the time of trial of this case read: "The rule is designed to provide one single procedure for the suppression of evidence alleged to have been obtained in violation of the defendant's constitutional rights." The intent of our Supreme Court to have suppression questions determined at one time regardless of whether a new trial is held on the merits of the case, is made evident by the Pa.R.Crim.P. as well as Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). While Harmon arose in the context of an appeal from the Philadelphia Municipal Court of Common Pleas, for trial de novo, the Supreme Court points out that "[p]re-trial proceedings by definition are distinguishable from the actual trial." 469 Pa. at 494, 366 A.2d at 897.*fn1 "Trial" by definition normally does not include pre-trial motions.*fn2 In the instant case we find that the lower court properly relied upon Harmon for guidance in its ruling that appellant had one opportunity to
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pursue his suppression claim.*fn3 There is no error in denying ...