concurring.
I agree with the view of the plurality presented in the Opinion Announcing the Judgment of the Court that judgments of sentence should be affirmed. But I must write separately to express my disagreement with the plurality’s reasoning.
I
At his first trial, appellant Walter Dobson moved to suppress a written statement obtained from him by the police. The court of common pleas denied the motion, the *307Commonwealth introduced the statement at trial, and a jury found appellant guilty. On appeal, this Court held that because the statement was obtained in violation of Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972), it should have been suppressed. The judgments of sentence were reversed and appellant was granted a new trial. Commonwealth v. Dobson, 465 Pa. 91, 93, 348 A.2d 132, 133 (1975). On retrial, appellant moved to suppress physical evidence claimed to be a fruit of the impermissible written statement improperly admitted at the previous trial. This motion was denied. The Commonwealth introduced the physical evidence, and a jury found appellant guilty.
On this appeal, a plurality of this Court refuses to consider whether the physical evidence should have been suppressed. Indeed, it would hold that the court of common pleas erred when it provided appellant a new suppression hearing. The plurality does not find any inadequacy in either the timing or the specificity of appellant’s motion. Rather, the plurality reasons that where an accused could have moved to suppress evidence before a first trial, but fails to do so, the accused has waived any opportunity to suppress evidence even though a new trial has been granted. Apparently the plurality believes that in 1975 this Court did not grant appellant a new trial, but instead granted appellant only a limited and unique “new proceeding” at which, despite appellant’s timely request for relief, the trial court is precluded from considering the admissibility of evidence introduced by the Commonwealth at the previous trial.
The new proceeding which would be created by the plurality’s waiver rule is unprecedented in our jurisprudence. Indeed, the Superior Court, on nearly identical facts, has expressly rejected the plurality’s unsupported waiver theory. In Commonwealth v. Throckmorton, 241 Pa.Super. 62, 359 A.2d 444 (1976), as here, the accused did not move to suppress certain evidence at his first trial, but did make a timely motion to suppress the evidence before retrial. Unlike today’s plurality the Superior Court reaffirmed the accused’s right to a full and fair trial and refused to hold the motion waived.
*308It is true that Pa.R.Crim.P. 323(b) provides that appellant’s failure to raise the “issue of suppression” in a timely manner before his first trial precludes him from raising the “issue of suppression” at his first trial. (“If timely motion is not made hereunder, the issue of suppression of such evidence shall be deemed to be waived.”) But our cases are clear that the binding directive of Rule 323(b) can have no further force once a new trial has been granted. In Commonwealth v. Hart, 479 Pa. 84, 387 A.2d 845 (1978), this Court held that a trial court’s evidentiary ruling rendered at an accused’s first trial is no longer binding on retrial. Just as in Hart, the mandate of Rule 323(b) also cannot be binding once a new trial has been granted. A new trial “wipes the slate clean.” Commonwealth v. Oakes, 481 Pa. 343, 347, 392 A.2d 1324, 1326 (1978).
The plurality claims Hart has no bearing here because, unlike the “ruling” in Hart, this case presents a “ ‘non-ruling’ because of waiver.” This purported distinction carries no force. Both the evidentiary ruling and the so-called “non-ruling” govern the admissibility of evidence at the first trial. Neither can stand if, on retrial, the trial court is “to execute its duty and to conduct a fair trial.” Hart, 479 Pa. at 87, 387 A.2d at 847.
According to the plurality, “judicial economy” will be promoted by precluding consideration of appellant’s motion. The truth of the matter as the Superior Court recognized in Throckmorton, is that by granting appellant the opportunity to suppress evidence before retrial, “the goal of judicial economy is actually promoted.” 241 Pa.Super. at 68, 359 A.2d at 447. As Judge Hoffman observed,
“[i]f we preclude the defendant this opportunity, his alternative remedies are much more cumbersome and time-consuming. If the defendant is convicted, and if he retains new counsel, he may allege on appeal that trial counsel was ineffective for failing to file timely suppression motions. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975). If the record is insufficient for us to decide the merits of the claim, we would remand the case for a *309hearing on ineffectiveness under Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975). If the trial court decides against the defendant, he would inevitably take a second appeal to this Court. On the other hand, if either this Court or the trial court decides that the ineffectiveness claim is meritorious, the defendant would be entitled to a second new trial. It is hard to conceive of a more wasteful expenditure of judicial time.”
241 Pa.Super. at 68-69, 359 A.2d at 447-48.
There is no reason to deem appellant’s timely motion before retrial waived. The timely motion is in full harmony with first principles of appellate review. It permits both the Commonwealth and the accused to develop a complete record and also affords the trial court full opportunity to correct alleged error before appeal. And the timely pretrial motion filed here in no respect undermines the many other “valid reasons underlying the practice of requiring pretrial motions.” W. LaFave, 3 Search and Seizure § 11.1 p. 476 (1978). Jury deliberations and trial strategies are unimpaired. See id. at 476-77.1
*310The plurality purports to find support for its conclusion that appellant has waived any attempt to suppress physical evidence in Commonwealth v. Harmon, 469 Pa. 490, 366 A.2d 895 (1976). Harmon, however, has nothing to do with proper presentation of issues. There, a plurality of this Court held only that an accused’s right to a “trial de novo” in the Philadelphia Court of Common Pleas does not encompass a new suppression hearing. In any case, Harmon has little bearing here where no question of a right to trial de novo is presented. Harmon reflects the view that trial de novo in the court of common pleas avoids “conflict with the constitutional right of trial by jury . . . for those litigants who were not satisfied with the disposition of the Municipal Court.” 469 Pa. at 497, 366 A.2d at 898. The trial de novo addressed in Harmon is not, as here, a new trial.2
As recently as the past year, this Court made it explicit that the Superior Court’s holding in Throckmorton permitting the accused a new suppression hearing on retrial is *311sound and should be followed by the courts of this Commonwealth. In Commonwealth v. Oakes, supra, relying upon Hart, supra, this Court unanimously held that a post-verdict court reviewing denial of a motion to suppress after a second trial is not bound by rulings of the first post-verdict court. Justice Pomeroy, speaking for the Court, observed that “Oakes . . . became entitled, upon completion of the second trial, to a fresh review of alleged trial error by a court en banc. Pa.R.Crim.P. 1123.” 481 Pa. at 348, 392 A.2d at 1327. To hold that the second post-verdict court is not bound by the first post-verdict court’s rulings is to affirm the principle that a new trial must include a new suppression hearing. As Oakes correctly observed, “post-verdict review should be made in light of the record as it develops at the new trial, which may well be different from the earlier trial. [Citing Throckmorton.]” Id. See also Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977) (but for earlier opinion of this Court establishing “law of the case” that written statement is inadmissible, admissibility of statement open to litigation “afresh” on retrial without regard to previous trial rulings).
It must be obvious that the plurality’s rule of waiver is fundamentally unfair. An accused’s decision not to challenge evidence often is based upon the reasonable belief that existing law does not support the claim. Under the plurality’s rule of waiver, the same accused on retrial is bound by the previous decision not to challenge evidence, even if governing principles have changed by the time of retrial. The accused thus is denied the application of the law at the time of retrial. Surely this is a heavy penalty to impose upon one who exercises appellate rights and is entitled to a new trial.3
*312Perhaps the most unfortunate aspect of today’s new procedural obstacle to relief is that it will once again force state court litigants to seek vindication of federal rights in the federal courthouse and will require federal courts to grant the relief our courts should have granted. See e. g., United States ex rel. Sullivan v. Cuyler, 593 F.2d 512 (3d Cir. 1979) cert. granted, - U.S. -, 100 S.Ct. 44, 62 L.Ed.2d 30. Even Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), in which the Supreme Court limited the scope of federal court inquiry into state prisoners’ fourth amendment claims, requires federal examination of whether the state prisoner was afforded a “full and fair opportunity” to present the fourth amendment claim in state court.4 The plurality’s rule falls well short of satisfying this minimal standard of review.
II
While this Court should, consistent with Throckmorton, hold that appellant is entitled to the suppression hearing the court of common pleas provided him, it should also hold that appellant’s motion to suppress was properly denied. Before his second trial, appellant moved to suppress physical evidence seized from the home of his mother. Police seized the evidence pursuant to a search warrant issued on the *313strength of the inculpatory statements of appellant and appellant’s co-defendant, Charles Peters. Both statements, however, were obtained in violation of Futch. Commonwealth v. Dobson, supra (granting appellant a new trial); Commonwealth v. Peters, supra (granting co-defendant a new trial). Appellant maintains that because of the Futch violations neither his own statement nor that of Peters may be considered in determining whether police had probable cause to search his mother’s home. But he makes no claim that the co-defendant’s statement was in any respect obtained in violation of appellant’s rights, nor that the co-defendant’s statement was unreliable. The court of common pleas properly concluded that appellant cannot contest use of co-defendant’s statement tó provide probable cause for the search warrant. See Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 (1963).
Accordingly, I would, unlike the plurality, reach the merits rather than impose a waiver. As indicated, I would affirm the judgments of sentence.
O’BRIEN, J., joins this concurring opinion.. Professor LaFave points out:
“For one thing, . . . the pretrial motion requirement is designed to eliminate from the trial disputes over police conduct not immediately relevant to the question of guilt. It avoids interruptions of a trial in progress with auxiliary inquiries which break the continuity of the jury’s attention, and likewise avoids the serious personal inconvenience to jurors and witnesses which would result from interruptions at the trial. It also prevents having to declare a mistrial because the jury has been exposed to unconstitutional evidence. Moreover, it is to the advantage of both the prosecution and defense to know in advance of the time set for trial whether certain items will or will not be admitted into evidence. If the pretrial motion is granted, this may result in abandonment of the prosecution, thus avoiding the waste of prosecutorial and judicial resources occasioned by preparation for a trial which otherwise would have to begin only to be terminated at some point thereafter. Also, ‘[a]n adverse ruling on a pretrial motion will permit the government to change the theory of its case, to develop or place greater reliance upon untainted evidence or otherwise to modify its trial strategy.’ If the pretrial motion is denied, then the defendant is in a position at that time to either plead guilty and gain whatever concessions might be obtained by so pleading without causing the commencement of a trial, or to go to trial with a somewhat different defense strategy. Finally, in those jurisdictions where *310interlocutory appeal by the prosecution is permitted, the requirement of a pretrial motion to suppress protects that right of immediate appeal, which would be rendered meaningless if a request for suppression could be postponed until mid-trial.”
(Footnotes omitted.)
. There is broad language in Harmon which would suggest that a suppression hearing is not part of a trial and, hence, not part of a new trial. This language, however, is dictum. Harmon, as pointed out in the text, concerns only “trial de novo” in the Philadelphia Court of Common Pleas. Any reliance of the plurality on this dictum, therefore, is misplaced. In any event, by so relying on the dictum of Harmon, the plurality certainly sweeps beyond the perceived inadequacy in appellant’s motion to suppress before his first trial. For even if appellant had moved to suppress the physical evidence he now challenges on retrial, still under the dictum of Harmon, as extended to this case, he would be precluded from obtaining a new suppression hearing.
I must also note my continued disagreement with the dictum of Harmon. As Mr. Justice Manderino observed, the timing of a. ruling on a motion to suppress does not change the fact that the suppression ruling is as much a trial ruling as any other evidentiary ruling. See Harmon, 469 Pa. at 499, 366 A.2d at 900 (Manderino, J., dissenting, joined by Roberts, J.). Indeed, as Professor LaFave points out, many jurisdictions still conduct a suppression hearing only at the time the disputed evidence is introduced. See W. LaFave, 3 Search and Seizure, supra at § 11.1 p. 475.
. Perhaps the plurality seeks to recognize the possibility that a motion to suppress on retrial may be predicated on a change in law when it observes that “[n]o excuse is offered, nor does any exist, for [appellant’s] failure to [seek to suppress the physical evidence].” Assuming the plurality has this possibility in mind, still the plurality offers no authority for placing the burden of “excuse” on the accused. Indeed, no authority exists. To the contrary, our Rules of Criminal Procedure expressly place the burden of establishing the *312legality of evidence on the Commonwealth. See Pa.R.Crim.P. 323(h). There is nothing to indicate this burden in any respect shifts to the accused on retrial.
Even on the plurality’s “excuse” standard, it would seem appellant’s motion on retrial should be entertained. Appellant’s present motion is predicated on a ruling of this Court made after appellant’s first trial. Appellant attacks the use of the statement of his co-defendant, Charles Peters, as supporting probable cause to seize the physical evidence. This statement was not ruled inadmissible at his co-defendant’s trial until several months after completion of appellant’s first trial. See Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973). At the very least, the plurality should explain why appellant’s claim is not “excused.”
. But see Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (refusing to extend Stone to state prisoner challenge to sufficiency of evidence); Rose v. Mitchell, - U.S. -, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979) (refusing to extend Stone to state prisoner challenge to racial composition of grand jury).