a suppression motion may be litigated after the grant of a new trial only if there has been no prior determination of the issue
How later courts described this case
- a suppression motion may be litigated after the grant of a new trial only if there has been no prior determination of the issue
- no waiver of issue raised for first time at new trial, even though issue not raised or preserved by objection at first trial
Written by the judges who cited it.
The opinion
SPAETH, Judge
(concurring):
I join Judge Hoffman’s opinion but wish to add a comment on an issue that he touches upon but does not discuss.
The Commonwealth has argued at p. 448 et seq. of its brief that appellant validly consented to the breathalyzer test. If he did, the results of the test would derive not from the illegal arrest but from his consent, and so would be admissible. Commonwealth v. Quarles, 229 Pa.Super. 363, 377-78 , 324 A.2d 452, 460 (1974). It is, however, the Commonwealth’s burden to prove that the consent was knowing and voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 222 , 93 S.Ct. 2041 , 36 L.Ed.2d 854 (1973).
When asked about the administration of the breathalyzer test, Trooper Peters testified:
. . . and then we got to the barracks and I advised him more fully about the operation of the breathalyzer, and then he wasn’t going to take the breathalyzer test if we used it against him. I told him we couldn’t make any deals. I said will you submit to a chemical test of your breath. And at this time Mr. Throckmorton began to cry, and then he volunteered again to take the breathalyzer test . . .
(Record 133a-134a)
As Judge Hoffman indicates, at 446 this shows that appellant’s consent was “reluctant [ ] if not contradicting it at least precludes a finding that consent was voluntary.