Opinion
March 28, 1974.
December 11, 1974.
Criminal Law — Practice — Suppression of evidence — Failure to file application to suppress — Waiver — Pa. R. Crim. P. 323(b).
1. If an application to suppress evidence is not filed within the required time limit, "the issue of the admissibility of such evidence shall be deemed to be waived." Pa. R. Crim. P. 323(b).
2. It was Held that, in this case, as no application to suppress was filed, the issue of the admissibility of inculpatory statements made by defendant both before and after his arrest, was waived.
3. The necessity of maintaining an efficient and orderly judicial system requires strict compliance with Pa. R. Crim. P. 323(b) in all but the most limited instances.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeals, Nos. 1649 and 1650, Oct. T., 1972, from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1972, Nos. 298 and 299, in case of Commonwealth of Pennsylvania v. David Campbell. Judgment of sentence affirmed.
Indictments charging defendant with burglary, larceny, receiving stolen goods and unlawful possession of burglary tools. Before CIPRIANI, J., without a jury.
Finding of guilty and judgment of sentence entered thereon. Defendant appealed.
Michael Bolno and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
David Richman, James Garrett, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Submitted March 28, 1974.
Appellant, David Campbell, was tried and convicted in a non-jury trial of larceny, receiving stolen goods, and possession of burglary tools. Oral post-trial motions were argued and denied. Appellant was sentenced to concurrent terms of five years probation on the bills charging larceny and receiving stolen goods. Sentence was suspended for possession of burglary tools. The instant appeal followed.
The sole issue raised on this appeal is whether the trial court erred in admitting into evidence inculpatory statements made both before and after the appellant's arrest. The appellant contends that his initial inculpatory statement was inadmissible because it was given without his first having received the required Constitutional warnings; and that his second incriminating admission — although preceded by the requisite Miranda warnings — was tainted by the prior unwarned statement.
Rule 323(b) of the Pennsylvania Rules of Criminal Procedure, provides, inter alia, that if an application to suppress evidence is not filed within the required time limit, "the issue of the admissibility of such evidence shall be deemed to be waived." In the instant case, no application to suppress was filed and, accordingly, the issue of the admissibility of the statements has been waived. See Commonwealth v. Goggans, 455 Pa. 606, 317 A.2d 222 (1974); Commonwealth v. Sasser, 453 Pa. 622, 309 A.2d 352 (1973); Commonwealth v. Valle, 227 Pa. Super. 191, 323 A.2d 74 (1974); Commonwealth v. Armor, 226 Pa. Super. 529, 323 A.2d 211 (1974). The express language of Rule 323(b), and the necessity of maintaining an efficient and orderly judicial system, require strict compliance with this rule in all but the most limited instances.
To further emphasize the necessity of making timely application, the Comment to Rule 323 of the Pennsylvania Rules of Criminal Procedure reiterates that a failure to file in accordance with Rule 323(b) will result in a waiver of the right to suppress.
Judgment of sentence is affirmed.