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COMMONWEALTH PENNSYLVANIA v. LEROY BARNES. COMMONWEALTH PENNSYLVANIA V. LEROY BARNES (10/15/82)

filed: October 15, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
LEROY BARNES. COMMONWEALTH OF PENNSYLVANIA V. LEROY BARNES, APPELLANT



No. 2395 October Term, 1979, No. 2459 October Term, 1979, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 79-02-1231-1232

COUNSEL

Gaele McGlaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellant (at No. 2395) and appellee (at No. 2459).

Leonard Sosnov, Assistant Public Defender, Philadelphia, for Barnes, appellant (at No. 2459) and appellee (at No. 2395).

Brosky, Watkins and Montgomery, JJ.

Author: Brosky

[ 307 Pa. Super. Page 144]

Leroy Barnes, was arrested in January of 1979 and charged with false swearing in official matters*fn1 and perjury.*fn2 Barnes brought a motion to suppress certain evidence. A hearing was held on July 18 and 19 of 1979. On October

[ 307 Pa. Super. Page 14522]

, 1979, Barnes' motion to suppress was granted in part and denied in part. The Commonwealth appeals from the portion of the suppression motion which was granted*fn3 and Barnes filed a cross-appeal to the portion of suppression motion which was denied.*fn4 We reverse in part and affirm in part.

The first issue before us is whether or not defendant's appeal should be quashed.

The Commonwealth has the right to bring an interlocutory appeal from the granting of a motion to suppress evidence if that suppressed evidence is important to its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), Commonwealth v. Warfield, 418 Pa. 301, 211 A.2d 452 (1965). The defendant in a criminal case, on the other hand, may generally not bring an appeal from the denial of a pretrial motion to suppress until after his conviction and sentencing. Commonwealth v. Bosurgi, supra.

One of the self-evident policies behind this rule is the promotion of judicial economy. Should the defendant not be convicted, the validity of the denied suppression is moot.

The Pennsylvania Supreme Court has held that the latter rule prohibits the defendant appealing from a denied suppression motion even when that appeal would reach the appellate court along with the Commonwealth's interlocutory appeal. Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966).

The rule in Fisher was not followed two years later in Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968). The opinion of the court in Bordner, with four Justices joining, reached the merits of the defendant's as well as the Commonwealth's appeal from pre-trial suppression rulings. The majority opinion did not make any reference to the fact

[ 307 Pa. Super. Page 146]

    that its consideration of defendant's appeal on the merits was a departure from the rule in Fisher. Justice Roberts filed a concurring opinion in which he disapproved of the court's willingness to treat defendant's appeal and argued that it should have been quashed.

In treating defendant's appeal on its merits, we are modeling our actions on those the Supreme Court took in Bordner. We think that Bordner's effect is to permit a criminal defendant to cross-appeal a denied suppression motion ...


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