dissenting.
On January 28, 1977, we remanded this case to the court of common pleas to determine whether the Commonwealth, on appeal from final adjudication by the suppression court of appellant’s suppression motion, remains bound by the stipulation it entered in the suppression court. Accordingly, on March 2, 1977, the court of common pleas held a hearing at which co-counsel for appellant and attorneys for the Commonwealth presented testimony and argument concerning entry of the stipulation. The majority today affirms the order vacating the stipulation and remands for a new trial. Because the majority’s conclusion that “the prosecutor was not merely inadvertent and inattentive, but rather, he mistakenly relied on representations made by defense counsel” is not supported by the record and because vacation of the *121stipulation at this stage in the proceedings impeaches the integrity of the judicial process, I dissent.
The cases relied upon by the majority are inapplicable for in none did a party seek to withdraw a stipulation after entry of an order concluding the proceeding for which the stipulation was entered. As I concluded in my dissenting opinion in Commonwealth v. Daniels, 470 Pa. 523, 531, 368 A.2d 1279, 1283 (1975):
“[Wjhatever may be the standards for relieving a party of his stipulations during the proceeding in which it is entered, it is improper to allow the Commonwealth to pursue a particular litigation strategy that includes a deliberate admission in open court that the facts are as represented and, when that strategy fails, have a second chance with what it hopes will be a more successful strategy.”
Moreover, even if applicable, the cases relied upon by the majority do not entitle the Commonwealth to the relief granted. For example, in Carnegie Steel Co. v. Cambria Iron Co., 185 U.S. 403, 444, 22 S.Ct. 698, 714-15, 46 L.Ed. 968 (1902), the United States Supreme Court stated “that, upon giving notice in sufficient time to prevent prejudice to the opposite party, counsel may repudiate any fact inadvertently incorporated [in the stipulation].” (Emphasis added.) Here, unlike Carnegie, appellant was given no notice of the Commonwealth’s changed position until conclusion of the proceedings.
Even assuming that certain extraordinary circumstances in some situations might entitle a party to relief from its stipulation at this late stage in the proceedings, the Commonwealth has failed to establish any justifying circumstances. At the evidentiary hearing, the assistant district attorney who entered into the stipulation, when asked why he had not familiarized himself with the Daniels file before the April 25 suppression hearing, responded “because I was negligent.” He testified that the statements taken from the Commonwealth’s witnesses could have been obtained from the Commonwealth’s files and were at all times available to the District Attorney’s office. The district attorney was *122unable to specify what information he had personally received which led him to believe that defense counsel had misrepresented facts. He stated that he had not relied solely upon defense counsel’s representation in entering the stipulation, noting that contributing to his decision to enter the stipulation was a measure of egocentricity which impelled him to rise to the challenge of opposing a suppression motion on the basis of the law alone.
On the basis of this testimony, it is clear the Commonwealth has not shown that it exercised reasonable diligence in attempting to learn the facts or that it reasonably relied on defense counsel’s representation of facts peculiarly within the knowledge of the police. Accordingly, the Commonwealth should not be allowed simply to discard its stipulations and have a second opportunity to carry its burden of proof. The Commonwealth has waived all issues concerning stipulated facts because it failed to litigate those facts at the suppression hearing. Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) (defendant waives issues not timely raised). Therefore, I dissent.
MANDERINO, J., joins in this dissenting opinion.