No. 2266 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Monroe County at No. 153 April Term, 1977.
Charles P. Eyer, Assistant District Attorney, Stroudsburg, for Commonwealth, appellant.
Peter T. O'Malley, Scranton, submitted a brief on behalf of Ryan, appellee.
George Westervelt, Stroudsburg, for Casano, appellee.
Hester, Cavanaugh and Van der Voort, JJ. Van der Voort, J., files concurring and dissenting opinion.
[ 296 Pa. Super. Page 224]
This is an appeal by the Commonwealth from the lower court's order of October 9, 1979, granting the defendants' motions to suppress evidence.*fn1 At issue here is which party has the initial burden of proof at a suppression hearing. We agree with the conclusion of the lower court that the Commonwealth bears the initial burden of establishing the admissibility of the challenged evidence, and also with its finding that the Commonwealth did not meet its requisite burden at defendants' suppression hearing. However, we find that the court, having decided the burden of proof issue adversely to the prosecution, should have granted the Commonwealth's motion to reopen the suppression hearing. Accordingly, we reverse the lower court's order granting defendants' suppression motions and remand this case for the reopening of the suppression hearing.
[ 296 Pa. Super. Page 225]
This is not the first time this case has been before this court. On June 3, 1977, the lower court granted defendants' suppression motions on the ground that the magistrate improperly issued a search warrant for a premises outside his magisterial district. The Commonwealth appealed from that suppression order and this court reversed and remanded the case. Commonwealth v. Ryan, 257 Pa. Super. 538, 391 A.2d 612 (1978), aff'd, 484 Pa. 602, 400 A.2d 1264 (1979).
On October 3, 1979, a suppression hearing was held to dispose of the remaining arguments contained in defendants' suppression motions.*fn2 At that hearing, the prosecutor declined to present any testimony in support of the admissibility of the challenged evidence contending that (1) the decision of the Pennsylvania Supreme Court in Commonwealth v. Hall, 451 Pa. 201, 302 A.2d 342 (1973), establishing the right of defendants to attack the veracity of search warrant affidavits, was improperly decided and should be reversed, and (2) assuming the continued validity of Hall, defendants, and not the Commonwealth, had the initial burden of establishing a prima facie case as to the untruthfulness of statements contained in a warrant affidavit. In response, defendants argued that Pa.R.Crim.P. 323(h) required that the prosecution go forward with evidence at a suppression hearing. At the conclusion of the October 3 proceeding, both counsel indicated their desire to submit briefs on the burden of proof issue.
In a letter to the suppression court dated October 5, 1979, the Commonwealth stated its understanding that the suppression hearing was "stalled" pending resolution of the burden of proof issue. The Commonwealth also informed
[ 296 Pa. Super. Page 226]
the court that it was prepared to go forward with testimony should the court place that burden on the prosecution. Thereafter, the Commonwealth filed a motion to reopen the suppression hearing to present evidence in the event of an adverse ruling on the burden of proof question. On October 9, 1979, the suppression court granted defendants' motions to suppress on the ground that the Commonwealth, by failing to introduce evidence at the October 3 hearing, had not met its requisite burden of proof. The court also denied the Commonwealth's petition to reopen the suppression hearing for the presentation of evidence finding that the prosecution ". . . had ample opportunity to present the necessary evidence at the earlier date." On October 23, 1979, the Commonwealth petitioned the lower court to reconsider the burden of proof issue in light of the decision of the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1979). That petition was denied without a hearing. This appeal followed.
In this appeal, the Commonwealth urges us to conclude, based on Franks, that the defendants have the initial burden, at a suppression hearing, of making a "substantial preliminary showing" of the validity of their challenge to a search warrant affidavit and that their challenge must further be established by a preponderance of the evidence.*fn3 The Commonwealth argues that Franks established new standards for the burden of proof at a suppression hearing, thereby impliedly overruling Pa.R.Crim.P. 323(h) and decisional law in this Commonwealth placing the initial burden of proving the admissibility of the challenged evidence on the prosecution.
We find, however, that the Commonwealth's reliance on Franks is misplaced. That decision can in no way be read to impose on a defendant the burden of going forward with
[ 296 Pa. Super. Page 227]
evidence in support of suppression. Rather, the Supreme Court in Franks considered the narrow issue of whether a criminal defendant ever had a right to challenge the truthfulness of statements contained in a search warrant affidavit. In reversing the Delaware Supreme Court which has absolutely barred ...