At 10:15 p.m. on March 3, 1965, Officer Lawrence Wenko of the Pittsburgh police force observed appellant driving a convertible which had articles in the back seat and trunk (which was partly open). Officer Wenko was unable to stop the vehicle, but about fifteen minutes later he found the same car parked and unoccupied. Upon seeing television sets inside, Officer Wenko radioed his superior, asking the latter to meet him at the convertible. While awaiting his superior, Officer Wenko began to search the car and found a television set, a pair of rubber gloves, and a pinch bar.
At about 10:45 that evening, appellant was arrested six to ten miles from the car. Meanwhile, the car was being towed to the police garage, where it was again searched, an inventory being made of the goods found therein. During this entire period, the Pittsburgh police had no knowledge that the items in the convertible were stolen, or even that a burglary had been committed.
At trial, appellant for the first time moved to suppress the evidence seized during the searches of his automobile. The trial judge in the absence of the jury, held a hearing, and concluded that the evidence was illegally seized. But rather than suppressing the evidence, the judge ruled that the issue of whether appellant, by not making application by five days before trial, had waived his right to raise the suppression claim under Pa. R. Crim. P. 2001(b) presented a factual inquiry which was for the jury to decide under Rule 2001(h).
Initially we must consider whether the trial judge was correct in deciding that the evidence in question was seized as part of a constitutionally invalid search. Although the rule established by the Supreme Court of the United States to determine the validity of warrantless automobile searches is not entirely clear, compare Preston v. United States, 376 U.S. 364, 84 S.Ct. 881 (1964) with Cooper v. California, 386 U.S. 58, 87 S.Ct. 788 (1967),
The trial court, however, was incorrect in then submitting the waiver issue to the jury under Rule 2001. Rule 2001(b) provides that an application to suppress "shall be made not later than five days before the trial. An application may be made, in the prosecution county only, at any time until the evidence is offered at the trial if opportunity therefor did not previously exist, or if defendant was not aware of the ground for the application, or if a prior application for relief has been made in the seizure county but has not been finally determined, or the interests of justice require it." (Emphasis added.) Under Rule 2001(h) (2), disputed issues of fact remaining after the judge's initial consideration out of the hearing of the jury are to be submitted to the jury. The trial judge here believed that the question of whether appellant knew of the grounds for his motion more than five days before trial was an issue of fact for the jury under Rule 2001(h)(2).
We believe that a proper reading of Rule 2001 compels the conclusion that the question of waiver under 2001(b) is a matter solely for the court. 2001(b) provides four alternative excuses for a failure to meet the "five days before the trial" requirement. The drafters' notes explicitly state that the last of these, if "the interests of justice require it," gives the court discretionary power to entertain the application after the expiration of the time period. Allowing the jury to
The procedure under Rule 2001 contemplates an initial consideration by the trial court of issues such as waiver.
The order of the Superior Court is reversed, the judgment of the Court of Oyer and Terminer of Mercer County is vacated and a new trial is ordered.
Mr. Justice MUSMANNO did not participate in the decision of this case.
The trial judge conceded that his interpretation of 2001(h) was open to question and that appellant's contrary contentions "may be right."