No. 2043 Philadelphia, 1981, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, No. 2229/79.
Sara M. Webster, Assistant Public Defender, Doylestown, for appellant.
Stephen B. Harris, Assistant District Attorney, Doylestown, for Commonwealth, appellee.
Wieand, Cirillo and Popovich, JJ. Popovich, J., concurs in result.
[ 298 Pa. Super. Page 24]
Barbara Campbell was found guilty by a jury of retail theft. After post-trial motions had been dismissed and sentence imposed, an appeal was filed in this Court. The only matter preserved for appellate review is the trial court's decision to allow the Commonwealth to re-open its case and present evidence showing probable cause for stopping and detaining appellant at the time of her arrest after the District Attorney, during a suppression hearing, had represented to the court that the arresting officer was unavailable to testify and the court had granted a defense motion to suppress. We find no abuse of discretion in the trial court's ruling and affirm the judgment of sentence.
Trial of the charge against appellant for retail theft was assigned to the Honorable George T. Kelton on the morning of June 4, 1981. When he undertook to hear appellant's pre-trial motion to suppress evidence, the following occurred:
MR. MC HUGH: . . . at the time the arresting officer was Anthony Manscola who was employed by the Middletown Township Police Department.
Mr. Manscola is no longer employed by the Middletown Township Police Department and is not available for trial today.
[ 298 Pa. Super. Page 25]
As such, Your Honor, I am not prepared to proceed on this motion and will concede that any items that were taken from Miss Campbell by Officer Manscola would not be introduced into evidence in any event.
THE COURT: Then, in effect, you are conceding, I should grant the motion to suppress the offering of evidence of any items so seized by the Middletown ...