# In the Interest of L.J. > Supreme Court of Pennsylvania · October 30, 2013 · 622 Pa. 126 URL: https://www.frixlaw.com/law-library/cases/4968111 ## Case - **Full name:** In the Interest of L.J. Appeal of L.J. - **Court:** Supreme Court of Pennsylvania - **Decided:** October 30, 2013 - **Citations:** 622 Pa. 126; 79 A.3d 1073; 2013 Pa. LEXIS 2583; 2013 WL 5827281 - **Precedential status:** Published - **Opinion:** Concurring in part by Eakin - **Judges:** Baer, Castille, Eakin, McCaffery, Saylor, Stevens, Todd - **Cited by:** 651 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4968111 ## How later opinions describe it (automated extraction) - concluding that the language of Pa.R.Crim.P. 581 (governing the suppression of evidence) “strongly suggests that the record of the suppression hearing is intended to be the complete record for suppression issues, and those issues are to be finally determined before trial, not … - holding that a footnote in a separate case constituted “non-binding dict[um]” to which “stare decisis did not apply,” where “the passage was not necessary to the outcome of the case” and “the majority . . . simply volunteered the discussion” when “the issue was not litigated b… - recognizing "regardless of whether the defendant's suppression motion is detailed or boilerplate, the Commonwealth carries the burden at suppression and satisfies that burden if it proves to the satisfaction of the suppression court that the evidence was properly seized" - holding that the scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing, and does not include the record of the subsequent trial absent extraordinary circumstances - explaining that if the suppression court’s factual findings are supported by the record, a reviewing court may only reverse the suppression court’s ruling if the suppression court erred in applying the law to those factual findings ## Opinion text Justice EAKIN, concurring and dissenting. I agree that suppression decisions are to be reviewed on the suppression record. I agree that record may, in limited circumstances, be augmented with evidence first adduced at trial, provided the augmentation respects the parties’ opportunity to present and challenge the additional evidence. I disagree that a condition precedent to such augmentation is a showing the evidence was unavailable at the time of the hearing. The question before us is whether a court may consider “new” evidence when reviewing a suppression decision post-trial. By “new,” I refer broadly to evidence not adduced at the suppression hearing, and hence not relied upon by the suppression court when making its pre-trial decision. Specific to this case, it is evidence adduced at trial, but the principles involved should apply equally to any new evidence from other post-hearing sources. Let me group relevant “new” evidence into two categories — that which supports a grant of suppression, and that which supports a denial of suppression. For each type, there is a further consideration based on the result of the suppression hearing— whether suppression was initially granted or denied. Thus, there are four possible scenarios in which the issue may arise: (1) When suppression has been granted, and the new evidence supports suppression, in this case, the defense (having the favorable ruling) has no need to ask for reconsideration, and the prosecution obviously will not. (2) When suppression has been denied, and the new evidence supports suppression, here, the defense should renew its motion. Pennsylvania Rule of Criminal Procedure 581 (J) specifically allows reconsideration. I do not believe this rule contemplates application only to the prosecution, as my colleagues suggest (for *1090 suppression has been denied), but it clearly allows reconsideration. The court may reopen the matter, take evidence outside the presence of the jury, and rule. (3) If suppression has been granted and new evidence would have supported admissibility, the first question is whether the prosecution is precluded from asking for reconsideration. As the prosecution had the obligation to present its case at the hearing, absent extraordinary circumstances, the trial court should not reopen the matter during trial — the general rule must be that the decision on the suppression motion must be reviewed based on the suppression record. However, the court must have the power to reopen the record to avoid manifest injustice. If the defendant or witnesses testified contrary to their suppression testimony, or adduced contrary evidence to the evidence that was suppressed, a court should, on motion, be permitted to reopen the record and reconsider its decision if the new evidence so warrants. (4) Finally, we have the present situation where suppression has been denied, and new evidence supporting denial is adduced. For the court to consider it, sua sponte, in post-trial review, the defense must have the opportunity to vet the new evidence in a manner consistent with the suppression hearing. That, in my judgment, was the error herein — the court’s ability to consider the evidence should be based on the opportunity of the parties to present and challenge the new evidence. Denying the defendant cross-examination was not the only problem. She could call witnesses to dispute Officer Jackson’s testimony. She could, at a suppression hearing, contest the factual basis without giving up her right against self-incrimination — at the hearing, she could testify she gave no such consent, and her testimony would not be used against her at trial. Since the court did not allow cross-examination or a chance for contrary evidence, it should not have considered the consent when reviewing the suppression decision. One cannot rule facts are irrelevant to the issue, then use them as the basis for deciding the issue. I specifically differ from the majority on the need to prove the evidence was unavailable. Remember, the defense challenged only probable cause, a matter which was solely within the ken of Officer Hunter. The failure to call Officer Jackson, while it could have made the issue of probable cause irrelevant, is therefore not a shortcoming at all. Rule 581(D) requires the suppression motion set forth the grounds for suppression “specifically and with particularity.” While perhaps honored in the breach, the allegation here was a lack of probable cause. The prosecution has the burden of proof, but the defense frames the question of what must be proven. Recall also that the prosecution had a favorable decision on the probable cause issue — whether Officer Jackson was available or not, there was no reason whatsoever to call him. To make consideration of his testimony dependent on his availability is illogical and of no constitutional value. Availability may be worth considering in a case where it is alleged the prosecution should have called him but did not, but here his testimony was not pertinent to the issue raised by the defense — there being no basis for calling him, his availability is irrelevant. Unavailability may be a justification for not calling him, but it is not the only justification, as the present case shows — as such, I see no reason in logic or constitutional protocol to make it a required precursor to consideration at this stage. *1091 I believe the proper principle is that a court may reopen the suppression matter if trial evidence is adduced bearing on the issue. However, if it does not reopen or allow the parties to appropriately vet the evidence, it may not use the evidence when reviewing the suppression decision. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4968111. Public record. Not legal advice.