decided: July 6, 1979.
COMMONWEALTH OF PENNSYLVANIA
JONATHAN REASON, APPELLANT*FN*
No. 259 and 286 January Term, 1977, Appeal from the Judgments of Sentence of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Imposed on Indictment Nos. 2157, 2159, January Session, 1975.
Raymond J. Takiff, Philadelphia, for appellant.
Robert B. Lawler, Chief, Appeals Div., Asst. Dist. Atty., Sheldon M. Finkelstein, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino and Larsen, JJ. Eagen, C. J., concurs in the result.
[ 485 Pa. Page 451]
Appellant, Jonathan Reason, was arrested on December 21, 1974, at the scene of the robbery and murder of Simon Spivey. On March 31, 1975, appellant filed an application to suppress inculpatory statements which he made to the police following his arrest. On that same date, the lower court scheduled a suppression hearing to be held on May 15; the Commonwealth filed an answer to said application on May 12. At the suppression hearing, the appellant objected to the Commonwealth's answer on the grounds that it was filed late in violation of Pa.R.Crim.P. 308.*fn1 Had the suppression
[ 485 Pa. Page 452]
court applied the terms of Rule 308(a), the appellant's application to suppress would have been granted. However, the suppression court admitted the Commonwealth's answer as filed and following the hearing, the appellant's application to suppress was denied.
In July of 1976, a jury found appellant guilty of murder of the first degree and robbery. Post-verdict motions were denied and appellant was sentenced, on January 6, 1977, to life imprisonment for murder and a concurrent term of ten to twenty years imprisonment for robbery. This appeal was then taken.*fn2
Appellant contends that the lower court erred in denying his application to suppress due to the alleged late filing of the Commonwealth's answer in violation of Rule 308(a) footnote 1, supra. This contention is without merit.
At the time of the suppression hearing, Rule 308 did not apply to pretrial applications to suppress evidence. Commonwealth v. Waters, 248 Pa. Super. 123, 374 A.2d 1348 (1977); Commonwealth v. Knapp, 75 Pa.D.&C.2d 1 (1975). Rather, the rule applicable to such applications was Pa.R.Crim.P. 323(e) which provided in relevant part:
Rule 323. Suppression of Evidence
(e) Upon the filing of such application, a judge of the court shall fix a time for hearing, which may be either prior to or at trial, and which shall afford the attorney for the Commonwealth a reasonable opportunity for investigation and answer, and shall enter such interim order as may be appropriate in the interests of justice and the expeditious disposition of criminal cases. (Emphasis added).
Additionally, the comments which follow Rule 323 state, "[T]he rule is designed to provide a single procedure for the suppression of evidence . . ."; thus further supporting
[ 485 Pa. Page 453]
our position that Rule 323 is appropriate here and not Rule 308.
In this case the Commonwealth's answer was filed three days before the hearing and from the record it can be determined that appellant was adequately prepared to present his arguments at the suppression hearing. Therefore, we hold, that the lower court properly exercised the discretion which it has pursuant to terms of Rule 323(e) in admitting the Commonwealth's answer as filed.*fn3
*fn* Editor's Note: The opinion of the Supreme Court of Pennsylvania in Commonwealth v. Klobuchir, published in the advance sheets at this citation (402 A.2d 1358), was withdrawn from this volume because reargument was filed.