No. 321 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Lackawanna County, Criminal Division, at Nos. 80 CR 1595 (a, b, c), 80 CR 1602 (a, b, c), and 80 CR 1603 (a, b, c), 80 CR 1598 (a, b, c).
Ernest D. Preate, Jr., District Attorney, Harrisburg, for Commonwealth, appellant.
Paul Mazzoni, Scranton, for appellees.
Montemuro, Hoffman and Van der Voort, JJ. Van der Voort, J., concurred in the result.
[ 297 Pa. Super. Page 202]
The Commonwealth contends that the lower court erred in suppressing evidence. Because we agree with the lower court that the Commonwealth failed to meet its burden of going forward with evidence to meet appellees' objections to the search warrant and its execution, we affirm.
After indicting appellees for violations of the Clean Streams Act,*fn1 the Commonwealth obtained a warrant to search appellees' property on the basis of affidavits and grand jury transcripts. In executing the search, the Commonwealth unearthed several barrels of industrial wastes.
[ 297 Pa. Super. Page 203]
Appellees filed an omnibus pre-trial motion seeking, inter alia, to suppress the evidence obtained as a result of the search. Appellees' motion alleged that probable cause was lacking because: (1) none of the documents showed probable cause on their face; (2) the premises were not secured; and (3) the warrant did not specify when the evidence had been placed on the premises. Appellees alleged also that they were denied their right to be present during the search and that unauthorized persons performed the search. In a supplemental motion, filed with leave of court, appellees alleged that the time allowed by the warrant for conducting the search exceeded the two-day limitation specified in Pa.R.Crim.P. 2005(d), and that the search exceeded even the limitation in the warrant. The lower court subsequently commenced three days of hearings on the omnibus motions. During these hearings the lower court reminded the Commonwealth that "there are certain burdens that you have anytime a motion for suppression is filed." (N.T. January 22, 1981 at 148). Despite the admonition the Commonwealth introduced no evidence whatsoever -- not the warrant, nor the affidavits and transcripts, nor any testimony -- concerning appellees' suppression motions. The lower court thus granted appellees' suppression motion because the Commonwealth had failed to meet its burden of going forward with evidence to meet appellees' objections to the warrant and its execution. The Commonwealth then took this appeal.*fn2
[ 297 Pa. Super. Page 204]
The Commonwealth contends first that it should be granted a second opportunity to present evidence justifying the warrant and its execution. The Commonwealth argues that the three-day pre-trial hearing was not, in fact, an evidentiary hearing on appellees' suppression motion. We cannot review the lower court's finding of fact on this matter in this Commonwealth appeal.
It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case . . . . Where . . . the reason for the action of the trial court, whereof the Commonwealth complains, is based upon an admixture of law and fact, the Commonwealth is without any right to appeal therefrom . . . .
Commonwealth v. Melton, 402 Pa. 628, 629, 168 A.2d 328, 329 (1961). See also Commonwealth v. Ray, 448 Pa. 307, 312, 292 A.2d 410, 413 (1977); Commonwealth v. Kunkel, 254 Pa. Superior Ct. 5, 385 A.2d 496 (1979); Commonwealth v. DeFelice, 248 Pa. Superior Ct. 516, 522, 375 A.2d 360, 363 (1977). By its suppression order the lower court impliedly found that the hearing on appellees' ...