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COMMONWEALTH PENNSYLVANIA v. WAYNE D. ELSLAGER (01/10/86)

filed: January 10, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WAYNE D. ELSLAGER, AND DANNY THOMAS PERRY, APPELLEES



Appeal from the Order entered December 27, 1983 in the Court of Common Pleas of Crawford County, Criminal - at Nos. 1983-56 and 1983-113.

COUNSEL

John M. Dawson, Assistant District Attorney, Meadville, for Com., appellant.

Bruce A. Barrett, Assistant Public Defender, Meadville, for Elslager, appellee.

Anthony Vardaro, Meadville, for Perry, appellee.

Rowley, Olszewski and Del Sole, JJ.

Author: Del Sole

[ 349 Pa. Super. Page 218]

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Crawford County (per

[ 349 Pa. Super. Page 219]

Judge Robert L. Walker) entered December 27, 1983, granting Appellee's, Wayne D. Elslagers' and Danny Thomas Perrys', Motions for New Trial and suppression of statements made by Appellees as well as suppression of the contents of a duffle bag.*fn1

Jurisdiction of this case is conferred on the Superior Court of Pennsylvania by virtue of 42 Pa.C.S.A. § 742. The Commonwealth has the right to take this appeal pursuant to Pa.R.App.P. 311(a)(5).

Wayne Elslager and Danny Perry were tried non-jury before the Honorable Robert Walker and found guilty of robbery*fn2 and conspiracy to commit robbery.*fn3 At trial, the Commonwealth relied upon incriminating evidence including statements each defendant gave to the police admitting their role in the robbery and statements advising the police of the location of various items used in the robbery. Each defendant had sought to have his statement and the various items seized by the police suppressed at a pre-trial hearing. The defendant's motions were denied. After the filing of post-verdict motions, the trial judge granted the defendants a new trial and ordered the defendants' statements and the various items located by the police as the result of the defendants' statements suppressed.

The Commonwealth requests that this Court reverse the grant of new trial and reinstate the guilty verdicts. In support of its' position, the Commonwealth argues that a) in the absence of new evidence, the post-trial court erroneously overruled an interlocutory suppression order of the same court in the same case, b) in the totality of the circumstances, defendants knowingly and voluntarily gave oral and written statements which were admissible and not grounds for ordering a new trial and c) given the notice requirement of 42 Pa.C.S.A. § 9712(b) the District Attorney has discretion

[ 349 Pa. Super. Page 220]

    in invoking the five year firearm enhancement provisions of the Mandatory Sentencing Act.

Initially, the Commonwealth raises an apparent procedural issue. It is argued that absent new evidence, the post-trial court erroneously overruled an interlocutory suppression order of the same court in the same case. In support of its position, the Commonwealth argues "the suppression court's determination is to be final except in the case of evidence not earlier available." Commonwealth v. Berkheimer, 501 Pa. 85, 91, 460 A.2d 233, 236 (1983). This is in accord with Pa.R.Crim.P. 323(j) which provides in part:

If the court determines that the evidence shall not be suppressed, such determinations shall be final, conclusive and binding at trial, except upon a showing of evidence which was theretofore unavailable . . .

Furthermore, it is noted that "it is well established that absent some new evidence, it is improper for a trial judge to overrule an interlocutory order by another judge of the same court in the same case." Commonwealth v. Eck, 272 Pa. Super. 406, 409, 416 A.2d 520, 522 (1979) (Emphasis added). Additionally, the Commonwealth directs this court to Commonwealth v. Monarch, 330 Pa. Super. 165, 479 A.2d 491 (1984) which cites Commonwealth v. DeMichel, 442 Pa. 553, 277 A.2d 159 (1971) as authority that "a favorable ruling at the suppression hearing relieve(d) the Commonwealth of the burden of proving a second time at trial that its evidence was constitutionally obtained(.)" Monarch, 330 Pa. Super.Ct. 175, 479 A.2d at 496.

Having set forth the applicable law, the Commonwealth notes:

In the case at bar, the record clearly shows that defendants failed to introduce any evidence, let alone new evidence sufficient to justify a reversal of the pre-trial order. (See, N.T. Trial, May 26, 1983, p. 38). In fact, testimony given by the Commonwealth's witnesses at the suppression hearing was admitted by stipulation to the trial record. (N.T. ...


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