concurring.
I join in the majority opinion. Appellant’s trial counsel was not ineffective in withdrawing the suppression motion because pursuit of that motion would have been frivolous.
I write separately to stress to the bench and bar that the automatic application of the rule of exclusion of evidence, as the remedy for real or imagined trangressions of a defendant’s right to be free from unreasonable searches, seizures and arrests, is inappropriate. See e.g., Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985) (“we reject the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants.”) Compare Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) with Commonwealth v. Chandler, 505 Pa. 113, 477 A.2d 851 (1984).
The Superior Court held in the instant case:
as a matter of federal constitutional law, that the fruits of an illegal citizen’s arrest are subject to the full action of the Fourth Amendment and to the exclusionary rule. On separate, independent and adequate state grounds, applying Article I, Section 8 of the Constitution of this Commonwealth, we hold that the same results also obtain.
316 Pa.Super. 327, 462 A.2d 1374, 1378 (1983). That holding is obviously based on a fundamental misunderstanding of the origin of the often controversial exclusionary rule and of the evils which that rule was intended to guard against. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Both the United States Supreme Court and this Court have made it clear that the exclusionary rule will not be extended to areas where its application would not tend to achieve its primary purpose of deterring unlawful police conduct. See e.g., United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 *553L.Ed.2d 1046 (1976); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); United States v. Leon, 468 U.S. —, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard, 468 U.S. —, —, 104 S.Ct. 3424, 3428, 82 L.Ed.2d 737, 743 (1984); Commonwealth v. Mason, supra; Commonwealth v. Musi, 486 Pa. 102, 404 A.2d 378 (1979); see generally Commonwealth v. DeJohn, 486 Pa. 32, 53-73, 403 A.2d 1283, 1293-1304 (1979) (Larsen, J., concurring in part and dissenting in part).
Even assuming that a citizen’s arrest was unlawful, neither the prosecution of the “arrestee” by the Commonwealth, nor the use at trial of evidence obtained as a result of such an arrest, nor the recognition by the Commonwealth of a qualified privilege as a defense in a tort action for false arrest, false imprisonment, assault and battery, etc., present the sort of official misconduct by law enforcement officials that the exclusionary rule was created to deter.
McDERMOTT and HUTCHINSON, JJ., join in this concurring opinion.