No. 2890 October Term, 1978, No. 2891 October Term, 1978, Appeal from the Order of the Court of Common Pleas of Lancaster County, Criminal Division, Pennsylvania, granting Appellees' Motions for New Trial at Nos. 514 and 515 of 1976
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellant.
Samuel M. Mecum, Lancaster, for appellees.
Spaeth, Stranahan and Sugerman, JJ.*fn*
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Appellees were arrested following a search of their apartment with a warrant, and charged with possession of marijuana with intent to deliver, a violation of the Controlled Substance, Drug, Device and Cosmetic Act.*fn1 Pre-trial suppression motions were denied and Appellees, tried jointly, were convicted by a jury.
Post trial motions were filed by both Appellees, setting forth eight asserted errors as the bases for relief. Following
[ 282 Pa. Super. Page 86]
argument, the trial judge, sitting as a court en banc, on January 11, 1977, granted Appellees' motions for new trials, and by the same order, suppressed all evidence seized pursuant to the warrant on the ground that the affidavit for the search warrant failed to establish a reasonable basis for a nighttime search. Pa.R.Crim.P. 2003(c). The court failed to rule on the remaining issues raised in the post trial motions.
The Commonwealth appealed to this court and we reversed, reinstated the verdicts and remanded for sentencing. Commonwealth v. Baldwin and Neidig, 253 Pa. Super. 1, 384 A.2d 945 (1978).
Appellees thereupon filed a petition for allowance of appeal with the Supreme Court of Pennsylvania. On September 21, 1978, the Supreme Court granted the petition and remanded the cases to the lower court for consideration of the remaining issues raised in Appellees' post trial motions.
Following remand, the lower court, on October 30, 1978, determined that the affidavit supporting the search warrant was based upon an unlawful telephone eavesdrop,*fn2 again suppressed all evidence seized pursuant to the warrant, and again granted Appellees new trials. The lower court once again failed to reach or rule upon the remaining issues raised in the post-verdict motions.
[ 282 Pa. Super. Page 87]
The Commonwealth has appealed from the order of the lower court suppressing the evidence seized pursuant to the search warrant and granting Appellees new trials.*fn3
Before we turn to the merits, however, we must dispose of a question of our jurisdiction to consider the subject matter of this appeal, raised in Appellees' brief.
As earlier observed, Appellees appealed our decision in Commonwealth v. Baldwin and Neidig, supra, finding the nighttime search of Appellees' residence valid, by filing a petition for allowance of appeal in the Supreme Court of Pennsylvania pursuant to 42 Pa.C.S. § 724(a) and Pa. R.A.P. 1112, et seq. That court granted Appellees' petition, and remanded the case to the Court of Common Pleas of Lancaster County "for consideration of remaining issues raised by the post-verdict motions . . ." Appellees' Brief at 13. As also noted, the Court of Common Pleas of Lancaster County, acting upon the remand, considered the issue now before us in this appeal and entered its order.
The Commonwealth thereupon appealed from the entry of that order to this court, and both the Commonwealth and Appellees then twice filed applications with this court and the Supreme Court to transfer the instant appeal to the Supreme Court. Both courts refused the applications to transfer.
Citing Pa. R.A.P. 1701(a), Appellees now contend that as the appeal from our earlier decision is yet pending in the Supreme Court, this court may no longer proceed in the matter. As Appellees correctly note, Pa. R.A.P. 1701(a) provides the following:
"Rule 1701. Effect of appeal generally.
(a) General Rule. -Except as otherwise prescribed by these rules, after an appeal is taken or a petition for allowance of appeal is filed in a matter or review of a
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quasijudicial order is sought, the lower court or other government unit may no longer proceed further in the matter."
It is this section of the rule, Appellees argue, that prohibits our consideration of the matter before us. Appellees' research, however, does not run the full course. Pa. R.A.P. 1701(c) provides:
"(c) Limited to matters in dispute. -Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the lower court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the lower court."
It is at once obvious that the question before us in the instant appeal is unrelated to the issue presently pending in the Supreme Court. The matter we now confront is properly before us and within our jurisdiction, 42 Pa.C.S. § 742, and we will reach the merits.
The single issue we must resolve in the appeal before us is whether the physical evidence introduced by the Commonwealth at Appellees' trials was admitted in violation of Pennsylvania's Anti-wiretap Statute.*fn4 Before we embark upon our task, however, it is necessary that we set forth the facts necessary to our disposition.*fn5
On January 31, 1976, a confidential informant, later identified as one John C. Thompson, a Lancaster County attorney, telephoned the Pennsylvania State Police and informed Trooper George Taylor that he overheard three telephone ...