# Commonwealth v. Tabas

> Superior Court of Pennsylvania · April 12, 1982 · 308 Pa. Super. 43

URL: https://www.frixlaw.com/law-library/cases/9759999

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, v. Ronald Lee TABAS, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** April 12, 1982
- **Citations:** 308 Pa. Super. 43; 454 A.2d 12; 1982 Pa. Super. LEXIS 3888
- **Precedential status:** Published
- **Opinion:** Concurring in part by Hoffman
- **Judges:** Wickersham, Hoffman, Van Voort
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

HOFFMAN, Judge,
concurring and dissenting:
The majority holds that appellant’s suppression motion was without arguable merit, and thus counsel was not ineffective in failing to preserve related issues for appellate review. Because the record is insufficient for us to make that determination absent the suppression court’s findings of fact and conclusions of law, I must dissent.
Rule 323(i) of the Pennsylvania Rules of Criminal Procedure provides:
At the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.
“The purpose of Rule 323(i) is to insure a meaningful appellate review of the lower court’s decision.” Commonwealth v. Harris, 275 Pa.Superior Ct. 18, 25, 418 A.2d 589, 592 (1980). An appellate court “does not in the first instance make findings of fact and conclusions of law.” Commonwealth v. Jackson, 464 Pa. 292, 298 , 346 A.2d 746, 748 (1975). We must “insist on a full compliance with Rule 323©.” Id., 464 Pa. at 298 , 346 A.2d at 748 . When a suppression court fails to enter adequate findings of fact and conclusions of law, we are precluded from our appellate function of determining whether “the record supports the *66 factual findings of the court below and the legitimacy of the inferences and legal conclusions drawn from those findings.” Commonwealth v. Brown, 473 Pa. 562, 566 , 375 A.2d 1260, 1262 (1977), quoting Commonwealth v. Goodwin, 460 Pa. 516, 521 , 333 A.2d 892, 895 (1975). The lower court’s only attempt at compliance with the rule was at the conclusion of the suppression hearing, when it stated:
Gentlemen, we find the facts to be as testified by the two State Troopers and we find there was probable cause set forth in the affidavit in support of the warrant and that the execution of the warrant was proper.
(N.T. at 142). Such a superficial statement is wholly inadequate to provide this Court with the basis for a meaningful review. 1 See Commonwealth v. Jackson, supra (conclusory statement that there was no coercion used in obtaining confession insufficient). Absent adequate findings of fact and conclusions of law to guide our review, I cannot presume, as does the majority, that appellant’s suppression motion lacked arguable merit. Accordingly, I would vacate the judgment of sentence and remand to the lower court for an evidentiary hearing to determine whether “the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604 , 235 A.2d 349, 352 (1967). If it be determined that counsel was ineffective, appellant would be entitled to “a new suppression hearing, after which the hearing judge shall enter findings and conclusions as required by Rule 323(i).” Commonwealth v. Spaulding, 275 Pa.Superior Ct. 261, 263, 418 A.2d 712, 713 (1980). See Commonwealth v. Jackson, supra. Following the suppression hearing, if it be determined that the evidence should have been suppressed, a new trial should be granted. If the evidence should not *67 have been suppressed, then the judgment of sentence should be reinstated. Similarly, if it be determined that counsel’s representation was effective, then judgment of sentence should be reinstated. Either party aggrieved by the lower court’s ultimate decision may then appeal as permitted by law. 2
. The majority correctly notes that the testimony of the troopers varried as to the lapse of time between their initial knocking and their breaking in the door. That lapse is critical to a determination of whether appellant was given a reasonable opportunity to voluntarily surrender his privacy. See Commonwealth v. DeMichel, 442 Pa. 553 , 277 A.2d 159 (1971).
. I do, however, join in Judge VAN der VOORT’S view that there should be an evidentiary hearing to determine whether appellant’s trial counsel was ineffective in failing to call Deborah Dalton as a defense witness.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9759999. Public record. Not legal advice.