No. 470 PHILA. 1981, Appeal from Suppression Order of the Court of Common Pleas of Bucks County, Criminal at No. 3557 of 1980.
Michael J. Kane, District Attorney, Doylestown, for Commonwealth, appellant.
Martha Sperling, Assistant Public Defender, Doylestown, for appellee.
Spaeth, Cavanaugh and Montemuro, JJ. Montemuro, J., files a concurring and dissenting opinion.
[ 313 Pa. Super. Page 244]
The Commonwealth appeals from an order suppressing all statements made by defendant between his arrest and arraignment. The lower court suppressed the statements on the ground that the Commonwealth failed to prove that
[ 313 Pa. Super. Page 245]
defendant was arraigned within six hours of his arrest. Commonwealth v. Davenport, 471 Pa. 278, 370 A.2d 301 (1977). We agree with the lower court that the Commonwealth did fail to prove that defendant was arraigned within six hours of his arrest. However, defendant made two statements -- one oral and one typewritten statement -- and the record discloses that the typewritten statement was made after the arraignment. We therefore affirm the lower court's order so far as it suppresses the oral statement, but reverse so far as it suppresses the typewritten statement.
We must first determine whether the lower court's order is appealable. In Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983), this court held that "[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable -- whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone." Id., 311 Pa. Superior at 277, 457 A.2d at 884. Applying this test here, we are satisfied that the lower court's order is appealable. Defendant is charged with burglary, theft by unlawful taking and disposition, receiving stolen property, conspiracy, and possession of a controlled substance with intent to deliver. The record reveals that without at least one of defendant's statements, the Commonwealth will be substantially handicapped, for the statements are the only evidence the Commonwealth has to support the charge of possession of a controlled substance, and it appears that there is very little other evidence available to the Commonwealth to support the other charges.
Pa.R.Crim.P. 130(a) provides:
Except as provided in paragraphs (b) and (c), when a defendant has been arrested without a warrant in a court
[ 313 Pa. Super. Page 246]
case, he shall be taken without unnecessary delay before the proper issuing authority where a complaint shall be filed against him and he shall be ...