Appeal from the Suppression Order in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 81-07-847.
Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Com., appellant.
Donald S. Bronstein, Assistant Public Defender, Philadelphia, for appellee.
Montemuro, Popovich and Hoffman, JJ.
[ 356 Pa. Super. Page 134]
This Commonwealth appeal is before us on remand from the Supreme Court of Pennsylvania, Commonwealth v. Lagana, 510 Pa. 477, 509 A.2d 863 (1986).
On the basis of information broadcast over police radio, appellee was arrested on May 11, 1981, and charged with burglary and various firearms offenses. The arrest on the gun charges resulted from a Terry*fn1 stop during which appellee was frisked and a gun discovered; the later burglary charges stemmed from appellee's proximity at the time of the arrest to two carrying cases*fn2 which contained what was determined to be proceeds of a burglary committed on May 10. The weapons and burglary charges were not consolidated, and were made the subjects of two separate suppression motions.
On August 28, 1981, the motion to suppress evidence connected to the burglary charge was heard and granted by the Honorable Nelson A. Diaz. No Commonwealth appeal followed. Instead the burglary charge was nolle prossed.
At the suppression hearing on the firearms charge, the Honorable Eugene H. Clarke, Jr., ruled that by operation of collateral estoppel he was compelled to suppress the subject evidence, the gun, on the basis of Judge Diaz's findings of fact and conclusions of law. The Commonwealth appealed and this court affirmed. (Per Spaeth, P.J., with Popovich, J. concurring in the result.) The danger represented by a
[ 356 Pa. Super. Page 135]
theoretically incorrect result was determined, on balance, to be outweighed by various policy considerations if collateral estoppel was not applied. Specifically, we held that the latent evils of trying defendants with illegally obtained evidence, harassment of accuseds by the Commonwealth, piecemeal prosecutions, and the subversion of a defendant's reliance on a favorable prior outcome, were more likely to be realized where there were inconsistent (pre-trial) rulings on separate prosecutions arising from a single arrest.
The supreme court disagreed, finding that while "having judges of equal jurisdiction, sitting on the same bench, overruling each other on the same record," Lagana, 510 Pa. at 483, 509 A.2d at 866, was to be avoided, of paramount importance was the necessity to neutralize "the potential negative impact of perpetuating an erroneous ruling." Id. "The solution for this dilemma is to have the ruling of the first suppression hearing incorporated into the ...