(dissenting).
Because I cannot conclude that appellant failed to adequately present and preserve his claim that the bloody trousers, rags, and jacket were not in “plain view" and that they were illegally seized, I must dissent.
In the suppression motion filed preceding his second trial, appellant clearly questioned the applicability of the “plain view” doctrine to this case. See Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). The suppression court, concluding that it was bound by the views on this issue expressed in the plurality opinion in appellant’s first appeal to this Court,1 refused to hear evidence on this question and ruled the evidence admissible. The court having ruled on the claim, further objection by appellant was unnecessary until post-verdict motions were filed.2 Moreover, any attempt to offer to “introduce any testimony to fortify the challenge," ante at 75, would have been futile in light of the court’s ruling. Therefore, appellant did all that was necessary to present the issue- to the suppression court and has not forfeited his claim that the evidence was illegally seized.
Because we granted a new trial in appellant’s first appeal, he was also entitled to a new suppression hearing as an integral part of his new trial. At this suppression *563hearing, he should have been allowed to raise any issue not decided adversely to him in his previous appeal. Cf. Kuchinic v. McCrory, 422 Pa. 620, 625-26 n. 7, 222 A.2d 897, 900 n. 7 (1966). Here, as the majority correctly concludes, this Court did not rule on whether the trousers, rags, and jacket should have been suppressed. The appellant was therefore entitled to an opportunity to urge their suppression at the new suppression hearing and to obtain a ruling on their admissibility. Because he was deprived of that opportunity, I would vacate the judgment of sentence and remand the case to the suppression court to consider appellant’s suppression claim. If the suppression court found the evidence to have been seized in violation of the fourth amendment of the Constitution of the United States, or article I, section 8 of the Pennsylvania Constitution, a new trial would be required; if the supression court determined that suppression was properly refused, appellant would be permitted an appeal from that decision.
. See Commonwealth v. Davenport, 453 Pa. 235, 308 A.2d 85 (1973).
. There is no question that appellant raised this issue in his post-verdict motions.