Superior Court of Pennsylvania, 1993

Commonwealth v. McFadden

Commonwealth v. McFadden
Superior Court of Pennsylvania · Decided July 2, 1993 · Cavanaugh, Wieand, McEwen, Cirillo, Sole, Beck, Tamilia, Johnson, Hudock
628 A.2d 420; 427 Pa. Super. 45; 1993 Pa. Super. LEXIS 2141 (Atlantic Reporter, Second Series)

Commonwealth v. McFadden

Concurring Opinion

CAVANAUGH, J.,

concurs on the basis of Commonwealth v. Carroll’s, (No. 748 Philadelphia 1992, E01001/93), majority and concurring opinions.

JOHNSON, J., files a dissenting opinion, in which McEWEN, DEL SOLE and BECK, JJ., join.

Dissenting Opinion

JOHNSON, Judge,

dissenting:

I respectfully dissent to the Majority’s disposition of the present case. I would rely on the reasoning presented in the Dissenting Opinion in Commonwealth v. Carroll, — Pa.Super.-, 628 A.2d 398 (1993) to affirm the suppression order of the trial court.

McEWEN, DEL SOLE and BECK, JJ., join.

Opinion of the Court

CIRILLO, Judge:

This is an appeal by the Commonwealth from a pre-trial order by the Court of Common Pleas suppressing the intro*46duction of a loaded, nine millimeter handgun as evidence against Andrew McFadden.1 We reverse.

Two police officers in a marked patrol car in Philadelphia approached McFadden. McFadden fled, the officers pursued him and McFadden discarded a handgun in some bushes. One officer recovered the gun and the other officer arrested McFadden and charged him with carrying an unlicensed firearm on a public street.

This companion case to Commonwealth v. Carroll, — Pa.Super.-, 628 A.2d 398 (1993), decided this day, raises the same issue: whether Pennsylvania’s constitution demands greater protection for a fleeing suspect than that afforded by the Fourth Amendment to the U.S. Constitution after the decision of California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991).

For the reasons detailed in Commonwealth v. Carroll, supra, we find that the protections under the state and federal constitutions are coextensive.

Order reversed.

. The Commonwealth has certified that the suppression substantially handicaps the prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

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