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COMMONWEALTH PENNSYLVANIA v. MARILYN JOHNSON. COMMONWEALTH PENNSYLVANIA (06/24/83)

filed: June 24, 1983.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MARILYN JOHNSON. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. LEMUEL HENRY



No. 613 April Term, 1979, No. 614 April Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Erie County at Nos. 575 and 576 of 1979.

COUNSEL

Shad Connelly, Assistant District Attorney, Erie, submitted a brief on behalf of Commonwealth, appellant.

Denise L. Jones, Erie, for Johnson, appellee (at No. 613).

George M. Schroeck, Erie, for Henry, appellee (at No. 614).

Cavanaugh, Hoffman and Van der Voort, JJ. Hoffman, J., concurs in result.

Author: Cavanaugh

[ 315 Pa. Super. Page 581]

The Commonwealth appeals from an order granting appellees' motions to suppress physical evidence and appellee Johnson's motion to suppress inculpatory statements. The lower court suppressed the evidence because it found that the search warrant affidavit failed to set forth reasonable cause for a nighttime search. See Pa.R.Crim.P. 2003(c). We agree with the lower court that the affidavit was insufficient in that regard. We disagree, however, with its conclusion that the evidence must be suppressed simply because we have found the nighttime search unjustified. Rather, we hold that application of the exclusionary rule would be appropriate only if the search was otherwise found to be constitutionally infirm. Since we cannot determine from the record before us whether the instant search was, in fact, constitutionally infirm, the case is remanded to

[ 315 Pa. Super. Page 582]

    the trial court for the consideration of appellees' remaining suppression claims.

I

We must first determine whether the Commonwealth's appeal is properly before this Court. In Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983), we held that "[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must first 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."*fn1 Applying that test to this case, we conclude that the suppression order is appealable. Appellees are charged with possession of, and possession with intent to deliver, controlled substances. It is apparent from our review of the record that the prosecution of appellees would be substantially handicapped without the controlled substances. As we said in Commonwealth v. Lapia, "the Commonwealth cannot prove a defendant's possession of a controlled substance if it cannot prove that it took the substance from the defendant." 311 Pa. Super. at 280, 457 A.2d at 884. Similarly, we find that the Commonwealth's case would also be substantially handicapped without the use of statements made by appellee Johnson and personal items allegedly belonging to appellee Henry.

II

On February 1, 1979, at approximately 10 p.m., an informant provided police with information that she had seen large amounts of cocaine and marijuana that date at 236 East Seventh Street in Erie, Pennsylvania. On the basis of the informant's information, the police applied for and were issued a nighttime search warrant. At approximately 10:55 p.m., police searched the above premises and seized four pounds of marijuana and two grams each of cocaine and

[ 315 Pa. Super. Page 583]

    hashish. Appellee Johnson, who was present at the time of the search, also made several inculpatory statements. In addition, police seized personal items allegedly belonging to appellee Henry. After informations were filed charging appellees with drug offenses, appellees filed motions to suppress evidence on various grounds. As we have stated, the lower court granted the motions to suppress on the basis of one ground raised by ...


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