Appeal from the Order of the Superior Court at No. 460 Philadelphia, 1982, entered October 12, 1984, affirming the Order of the Court of Common Pleas of Philadelphia granting defendants motion to suppress physical evidence at No. 847 July Term 1981;
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., concurs in the result. Hutchinson, J., concurs in the result and files a separate concurring opinion. Zappala, J., concurs in the result.
This appeal is from an order of the Superior Court, 334 Pa. Super 100, 482 A.2d 1101, affirming an order of the Court of Common Pleas of Philadelphia. The latter court had granted appellee's motion to suppress evidence on the basis of collateral estoppel.
The relevant history of this case is as follows. On the evening of May 11, 1981, a police officer stopped appellee while the latter was standing on a street corner in Philadelphia. At the time the officer was responding to a radio call which indicated that a man with a gun was present on the corner. Appellee fit the description which the officer had received,*fn1 and at the time of the stop appellee was engaged in what could have been considered suspicious activity, in that he was standing in the rain observing a sandwich shop through a pair of binoculars. Since the officer believed that the man was armed, he conducted a pat-down of the appellee, which revealed a .32 caliber revolver located in appellee's pants. Appellee was then arrested on suspicion of violating the Pennsylvania Uniform Firearms Act.*fn2
Prior to appellee's actual arrest the police officer noticed two carrying cases which were on the ground nearby. When asked if the cases belonged to him, appellee responded in an ambiguous manner. The cases were seized and taken into custody along with appellee. Upon arrival at the police facility the two cases were examined without search warrant authority. This search revealed various articles, which later proved to be the fruits of a burglary.*fn3
Appellee was charged separately with a firearm violation and with burglary. For reasons which do not appear of record the Commonwealth did not consolidate these matters
and they proceeded through the system separately. Consequently, defense counsel filed separate motions to suppress.
On August 28, 1981, a suppression hearing was held on the burglary matter before the Honorable Nelson Diaz. Judge Diaz held that the burglary evidence was to be suppressed because the initial contact between the officer and the appellee constituted an arrest, as opposed to a Terry stop; and that since there was no evidence regarding the reliability of the police radio information, the arrest was without probable cause. The Commonwealth chose not to appeal Judge Diaz' decision and instead elected to nolle pros the burglary charge.
On September 8, 1981, a suppression hearing was held on the firearms matter before the Honorable Eugene H. Clarke, Jr. No evidence was taken at this hearing. Rather, after receiving memoranda and hearing argument, Judge Clarke ruled that by operation of collateral estoppel Judge Diaz' findings of fact and conclusions of law were binding on him in this second prosecution. Consequently, he suppressed the physical evidence, i.e., the gun.
On appeal, a three judge panel of the Superior Court (Spaeth, P.J., Montemuro, and Popovich, JJ.) in an opinion by President Judge Spaeth, affirmed.*fn4 Upon petition for allowance of appeal we granted allocatur.
The issue which is now before us is whether collateral estoppel should apply to pre-trial suppression rulings where separate prosecutions arise from a single arrest. Both parties agree that this is an issue of first impression in this Court.
In Commonwealth v. Brown, 503 Pa. 514, 469 A.2d 1371 (1983), this Court discussed the concept of collateral estoppel as it relates to criminal prosecutions. See also, Commonwealth v. Hude, 492 Pa. 600, 425 A.2d 313 (1981). In Brown, we acknowledged that collateral estoppel has definitive constitutional status whenever one is twice put in jeopardy, essentially ...