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decided: October 10, 1980.


No. 101 April Term, 1979, Appeal from Order of Court of Common Pleas of Washington County, Criminal Division, at Nos. 708 and 793 of 1978, Entered on January 5, 1979.


Francis C. Sichko, Assistant District Attorney, Washington, for Commonwealth, appellant.

Leonard I. Sharon, Pittsburgh, for Faust, appellee.

Ann L. Begler, Pittsburgh, for Nelson, appellee.

Price, Brosky and Montgomery, JJ.

Author: Per Curiam

[ 281 Pa. Super. Page 358]

This is an appeal by the Commonwealth from an order suppressing evidence discovered in a warrantless search of a public bathroom stall. As a result of the search, appellees, Edward Joseph Faust and Leonard Hammer Nelson were charged with violations of Voluntary Deviate Sexual Intercourse.*fn1 Appellees' counsels filed a pre-trial motion to suppress the evidence and testimony of the arresting officer, the only witness. A suppression hearing was held on December 14, 1978 before the Honorable Thomas J. Terputac.

[ 281 Pa. Super. Page 359]

The lower court found that the Commonwealth violated appellees' Fourth Amendment rights by intruding upon appellees' reasonable expectation of privacy. This appeal by the Commonwealth followed.

Subsequent to the filing of this appeal, the Supreme Court decided Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980). Therein, the voluntary deviate sexual intercourse statute was found to be unconstitutional in that it exceeded valid bounds of the police power while infringing the right to equal protection of the laws guaranteed by the Constitution of the United States and of this Commonwealth.

The issue now before us is whether we should rule upon the suppression issue when the underlying charges have been adjudged unconstitutional by our Supreme Court prior to a final determination in this case.*fn2

In Commonwealth v. Hartley, 223 Pa. Super. 541, 302 A.2d 378 (1973), our court was faced with a similar situation. Therein, the appellant was convicted of violating the statutory offense of criminal libel. Prior to the imposition of sentence, the Pennsylvania Supreme Court in Commonwealth v. Armao, 446 Pa. 325, 286 A.2d 626 (1972), held that the criminal libel statute was unconstitutional.

Although appellant had been tried, convicted and sentenced, he was before us on a timely direct appeal from the judgment of sentence. We concluded that his case was not yet finalized according to the definition employed by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). Therein, the Supreme Court opined:

"By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the

[ 281 Pa. Super. Page 360]

    time for petition for certiorari had elapsed . . ." 381 U.S. at 622, 85 S.Ct. at 1734.

See also, Commonwealth v. Simpson, 222 Pa. Super. 296, 294 A.2d 805 (1972). Because the intermediate Supreme Court decision was rendered prior to a final determination of appellant's case, we held that Commonwealth v. Armao applied to appellant's case. His sentence was reversed and conviction vacated.

Based upon the above definition of finality and upon our decision in Commonwealth v. Hartley, supra, we must conclude that the case before us was not finalized when Commonwealth v. Bonadio was decided. Therefore, the charges against the appellees are unconstitutional.

The suppression issue raised by the Commonwealth is now moot, and this appeal must be dismissed.*fn3

Appeal dismissed pursuant to above analysis that suppression issue is moot.

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