NO. 460 PHILA, 1982, Appeal from the Suppression Order in the Court of Common Pleas of Philadelphia County, Criminal No. 81-07-847
Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellee.
Spaeth, President Judge, and Montemuro and Popovich, JJ. Popovich, J., concurred in the result.
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This is an appeal by the Commonwealth from a pretrial order granting appellee's motion to suppress evidence. The evidence in question is a revolver. Appellee is charged with various firearms offenses, and our independent review of the record discloses that if upheld, the order
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suppressing the revolver will terminate the prosecution. The order is therefore appealable. See Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983). The issue on appeal is whether the trial court erred in holding that the Commonwealth was collaterally estopped from relitigating the validity of the search incident to which the revolver was seized. We hold that the trial court did not err. We therefore affirm its suppression order.
On May 11, 1981, a police officer stopped appellee on a street corner in Philadelphia. The officer found a revolver in appellee's pants. He seized the revolver and also two carrying cases that were on the pavement, a few feet from appellee. On the same day appellee was charged with firearms violations. Subsequently, the contents of the carrying cases were examined and found to be the proceeds of a burglary, and on June 9, 1981, appellee was also charged with burglary, theft and criminal trespass.
On July 31, 1981, appellee filed in the burglary prosecution a motion to suppress the carrying cases that had been seized on May 11, and also, the contents of the cases. On August 28 a hearing was held on the motion before the Honorable Nelson A. DIAZ, and on August 31, after argument, Judge DIAZ held that the police officer's action in stopping appellee, before seizing either the revolver or the carrying cases, constituted an arrest, and that at that time the officer did not have probable cause to arrest. See N.T. August 31, 1981, 13. He therefore ordered the carrying cases and their contents suppressed as the fruit of an illegal arrest. The Commonwealth did not appeal this order; instead, it nolle prossed the charges in the burglary prosecution.
On September 2, 1981, appellee filed in the present case (the firearms prosecution) a motion to suppress the revolver that had also been seized on May 11. On September 8 a hearing was held on the motion before the Honorable Eugene H. CLARKE, Jr. Appellee argued that, given Judge DIAZ's order of August 31, the Commonwealth was collaterally estopped from relitigating the validity of the May 11
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search. Judge CLARKE reserved his ruling and received evidence on the motion. On January 18, 1982, after considering the parties' briefs on the issue, Judge CLARKE "rul[ed] that the Commonwealth cannot relitigate the Motion to Suppress on the basis of collateral estoppel." N.T. January 18, 1982, 2. It is this ruling from which the Commonwealth now appeals.
Generally stated, the principle of collateral estoppel is that "[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." Restatement (Second) of Judgments § 27 (1982). See also Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970) ("when an issue of ultimate fact has once ...