Appeal from the Order of the Superior Court of Pennsylvania, Entered June 1, 1984 at No. 374 Pittsburgh, 1983, Reversing the Order of the Court of Common Pleas of Venango County, Pennsylvania, Criminal Division Entered February 15, 1983 Granting the Defendant a New Trial at S.D. No. 144 of 1982. Pa. Super. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., filed a concurring opinion. McDermott, J., notes a dissent.
The issue in this case, which concerns the warrantless, nighttime arrest of appellant in his home, is whether a post-verdict motions court has the power to review its own suppression ruling when no new evidence on this question has been introduced at trial which could not have been produced at the suppression hearing. This issue arises from the apparent conflict between our rules providing for finality of suppression rulings and Pa.R.Crim.P. 1123, requiring all assignments of error to be addressed in the first instance by the post-verdict motions court.
Hon. William E. Breene, of the Court of Common Pleas of Venango County, sitting at post-verdict motions, reversed his own pre-trial suppression ruling on the admissibility of evidence of intoxication. A three judge panel of Superior Court reversed, Tamilia, J. dissenting. Commonwealth v. Monarch, 330 Pa. Super. 165, 479 A.2d 491 (1984) (rearg. denied August 14, 1984).
On March 5, 1982, at approximately 8 p.m., Officer Thomas Hoover of the Sugarcreek Police Department responded to a hit and run complaint involving a parked vehicle. At the scene of the accident, one Mr. Keays informed Officer Hoover that the other vehicle involved in the accident belonged to appellant, and that Keays had observed appellant stumble after alighting from his vehicle. While Officer Hoover was inspecting the fresh damage to appellant's vehicle which was parked in appellant's driveway, Mrs. Monarch, appellant's wife, emerged from the Monarchs' home, and told Officer Hoover her husband had been involved in an accident. When Officer Hoover asked to speak with appellant, Mrs. Monarch indicated she had given appellant a sedative and he was asleep. Officer Hoover insisted upon speaking with appellant, whereupon Mrs. Monarch replied she would "see what she could do." As she walked toward the house, Officer Hoover followed. In spite of Mrs. Monarch's request that Officer Hoover remain outside, he followed Mrs. Monarch onto the porch and then inside her home. Once inside, Officer Hoover observed that appellant appeared to be intoxicated. Appellant was immediately arrested and charged with driving under the influence of alcohol, public drunkenness and unlawfully leaving the scene of an accident. Appellant's arrest occurred at approximately 8:30 p.m.
Appellant filed a motion to suppress, arguing, in the alternative, either that Officer Hoover lacked the requisite probable cause to effectuate the nighttime arrest of appellant in appellant's home,*fn1 or, assuming probable cause existed, that exigent circumstances justifying the warrantless
arrest did not exist. In denying appellant's motion to suppress, the suppression court found as a fact that Officer Hoover's presence on the porch was permitted by Mrs. Monarch and that his observations of appellant's intoxicated appearance were made from the porch. The court then upheld the arrest on the grounds that the entry was based on probable cause, the entry was peaceable, and exigent circumstances, to-wit, the fleeting nature of evidence of intoxication, existed.
At the suppression hearing, Officer Hoover testified as follows:
Q. . . . Did you go up onto the porch then?
A. Yes, I walked up on the front porch and Mrs. Monarch walked up on the porch first and opened the door at which time I observed Mr. Monarch standing in the hallway directly in front of the front door.
Q. What room of the house was Mr. Monarch in at that time?
A. It would be an entrance hall. He was standing up against the wall.
Q. What if anything [sic] observations did you make of Mr. ...