Com. v. Ailey, C.

2025 Pa. Super. 292

• Court: Superior Court of Pennsylvania
• Decided: December 31, 2025
• Docket: 793 MDA 2025
• Status: Published

Opinion

J-S40011-25

2025 PA Super 292

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CHASTATY LA DEAN AILEY : No. 793 MDA 2025

Appeal from the Order Entered May 19, 2025 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001533-2021

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

OPINION BY LAZARUS, P.J.: FILED: DECEMBER 31, 2025

The Commonwealth of Pennsylvania appeals from the order, entered in

the Court of Common Pleas of Berks County, granting Defendant Chastaty La

Dean Ailey’s motion to suppress. After careful review, we grant Ailey’s

application to quash and quash this appeal.

In light of our disposition, a recitation of the facts is unnecessary. On

January 28, 2021, Ailey was charged with several drug-related offenses as a

result of a vehicle stop. After significant delays due to discovery requests and

pre-trial conferences, on August 2, 2024, Ailey filed an omnibus suppression

motion.

On October 15, 2024, and December 4, 2024, the trial court conducted

a bifurcated suppression hearing, after which it permitted the parties to

request transcripts and submit additional memoranda in support of their

respective positions. On May 19, 2025, after receiving the parties’ J-S40011-25

memoranda, the trial court granted Ailey’s motion to suppress. See Order

and Opinion, 5/19/25, at 1-13.

On June 12, 2025, the Commonwealth filed a timely notice of appeal in

which it stated that it was appealing the dismissal of the criminal complaint.1

See Notice of Appeal, 6/12/25. However, the Commonwealth failed to include

the requisite Pa.R.A.P. 311(d) certification. See Pa.R.A.P. 311(d) (“In a

criminal case, under the circumstances provided by law, the Commonwealth

may take an appeal as of right from an order that does not end the entire case

where the Commonwealth certifies in the notice of appeal that the order will

terminate or substantially handicap the prosecution.”).

On June 23, 2025, the Commonwealth, having realized its errors, filed,

in the trial court, a request for leave to amend its notice of appeal nunc pro

tunc. See Motion for Leave to File Amended Notice of Appeal Nunc Pro Tunc,

6/23/25, at 1-2 (Commonwealth requesting nunc pro tunc relief to correct

defective notice of appeal and asserting assistant district attorney was on

vacation as basis for failure to timely correct defect). On June 25, 2025, the ____________________________________________

1 In its notice of appeal, the Commonwealth mistakenly stated that it appealed

from “the trial court’s [o]rder dated the 19th day of May 2025, which granted the dismissal of the Criminal Complaint.” See Notice of Appeal, 6/12/25, at 1. However, the Commonwealth attached a copy of the trial court’s order granting suppression to the notice of appeal. See id. at 3. In the record before this Court there is no order dismissing the criminal complaint entered on May 19, 2025. Nevertheless, in light of our disposition and the Commonwealth’s failure to include the requisite Rule 311(d) certification, we decline to remand for the Commonwealth to address this error. See Commonwealth v. Young, 265 A.3d 462, 475 (Pa. 2021) (permitting appellate courts to remand, pursuant to Pa.R.A.P. 902, for correction of non- jurisdictional defects in notice of appeal).

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trial court granted the Commonwealth’s request and, on June 30, 2025, the

Commonwealth filed an amended notice of appeal nunc pro tunc. See

Amended Notice of Appeal, 6/30/25. The amended notice of appeal states

that the Commonwealth appeals from the order granting suppression and

includes the requisite Rule 311(d) certification. See id.

On July 29, 2025, Ailey filed an application to quash the

Commonwealth’s appeal. See Application to Quash, 7/29/25, at 1-4

(unpaginated). Ailey argues that Rule 311(d) is a jurisdictional requirement

that the Commonwealth must satisfy. See id. at 2-3 (unpaginated). Ailey

asserts that, where the Commonwealth fails to include the requisite Rule

311(d) certification, the Commonwealth’s appeal must be quashed, pursuant

to Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985). See Application to

Quash, 7/29/25, at 2-3 (unpaginated). Ailey acknowledges that the

Commonwealth’s first notice of appeal was timely filed but contends that the

Commonwealth’s failure to include the Rule 311(d) jurisdictional requirement

is a fatal flaw that cannot be remedied by subsequent filings. See id. (citing

Commonwealth v. Malinowski, 671 A.2d 674 (Pa. 1996)).

On August 2, 2025, the Commonwealth filed an answer in which it

concedes, as it must, that its original, timely June 12, 2025 notice of appeal

did not include the required Rule 311(d) certification. See Answer to

Application to Quash, 8/2/25, at 1-3. However, the Commonwealth asserts

that it remedied this defect in its nunc pro tunc amended notice of appeal.

See id. at 3-4. The Commonwealth argues that this procedural misstep is

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no different than when a trial court reinstates direct appellate rights[,] which is a common occurrence. Further, this instance is also similar to an amendment of a concise statement of matters complained of on appeal, where the trial court[,] at [its] discretion, can allow amendment as long as the request is made prior to the trial court record being forwarded to the Superior Court and before the [t]rial [c]ourt opinion is rendered.

Id. at 3. The Commonwealth contends that Malinowski is distinguishable

because, here, it is not engaged in gamesmanship and has attempted to cure

the Rule 311(d) defect in its initial filing. See Answer to Application to Quash,

8/2/25, at 4.

This Court has previously explained our jurisdiction over interlocutory

appeals from orders granting suppression motions:

The jurisdiction of this Court is generally confined to appeals from final orders of the courts of common pleas. Commonwealth v. Matis, [] 710 A.2d 12, 17 ([Pa.] 1998) (citing 42 Pa.C.S.A. § 742). An order is final if it effectively puts a litigant out of court; thus, pretrial orders are ordinarily considered interlocutory and not appealable[.] However, an exception to the final order rule exists in orders of the trial court suppressing evidence the Commonwealth seeks to admit in a criminal trial. A Commonwealth appeal in a criminal case is governed by [Rule] 311, which permits the Commonwealth to take an interlocutory appeal as of right from a pretrial suppression order when the Commonwealth certifies that the order will “terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d); [] Dugger, [] 486 A.2d [at] 382[.]

Commonwealth v. Knoeppel, 788 A.2d 404, 406 (Pa. Super. 2001) (some

citations omitted). Importantly, Pa.R.A.P. 904(e), related to the required

content of notices of appeal, states that when the Commonwealth appeals

pursuant to Rule 311(d), the notice “shall include a certification by counsel

that the order will terminate or substantially handicap the prosecution.”

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Pa.R.A.P. 904(e) (emphasis added). Our Supreme Court has stated, “By

definition, ‘shall’ is mandatory.” Oberneder v. Link Computer Corp., 696

A.2d 148, 150 (Pa. 1997).

Typically, Rule 311(d) is “invoked in appeals addressing the admission or exclusion of evidence.” Commonwealth v. Woodard, 136 A.3d 1003, 1005 (Pa. Super. 2016) (citation omitted); see also Commonwealth v. Jones, 69 A.3d 180, 185 (Pa. 2013) (Commonwealth’s appeal of suppression order proper where Commonwealth certifies in good faith that order substantially handicaps prosecution). Additionally, appellate courts have recognized the right of the Commonwealth to appeal several types of non-evidentiary pre-trial orders under Rule 311. See Woodard, supra; see also [Commonwealth v.] Jones, 826 A.2d [900,] 906 [(Pa. Super. 2003)] (“If the Commonwealth has no opportunity to obtain appellate review of an adverse pre- trial interlocutory order implicating double jeopardy concerns, such review will never occur because the Commonwealth cannot try a defendant for a second time if the first prosecution results in an acquittal.”); [Commonwealth v.] Buonopane, [599 A.2d 681 (Pa. Super. 1991)] (order precluding Commonwealth from seeking death penalty appealable under Rule 311); Commonwealth v. Johnson, 669 A.2d 315 (Pa. 1995) (order transferring case from criminal to juvenile court appealable under Rule 311).

Commonwealth v. Zieglar, 322 A.3d 256, 262-63 (Pa. Super. 2024)

(footnote and emphasis omitted).

Our Supreme Court has held that “failure to comply with the Dugger

certification renders the suppression order unappealable.” Malinowski, 671

A.2d at 678 (emphasis added). The Supreme Court explained:

While it is true that an appeal by the Commonwealth of a suppression court ruling is appealable as a matter of right, it is so only if the Commonwealth certifies that the ruling terminates or substantially handicaps the prosecution. We have not required the Commonwealth to prove that burden; rather, we have held that it is the certification that precipitates

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and authorizes the appeal. Without the certification, the Commonwealth has no right to appeal.

Id. (citations omitted, emphasis added). Thus, the Supreme Court made clear

that the Commonwealth shall include the Rule 311(d) certification in its notice

of appeal in order to perfect its right to appeal a suppression ruling. See id.

Similarly, in Knoeppel, this Court determined that a subsequent

presentation of a Rule 311(d) certification does not cure a defective, but timely

filed, notice of appeal. See Knoeppel, 788 A.2d at 407. There, we stated:

In the present case, the Commonwealth failed to include the requisite certification in its notice of appeal. Under Malinowski, this defect is fatal; “[w]ithout certification, the Commonwealth has no right to appeal.” Malinowski, 671 A.2d at 678. The inclusion of the certification in the Criminal Docketing Statement or in the Commonwealth’s appellate brief does not cure the defect.

Id.2

Additionally, in Commonwealth v. Chism, 216 A.3d 1133, 1137 (Pa.

Super. 2019), this Court addressed a procedural snafu similar to the instant

case. In Chism, the Commonwealth filed a timely notice of appeal from an

order granting suppression but failed to include the requisite Rule 311(d)

certification. See id. at 1135. However, the Commonwealth filed a

subsequent untimely amended notice of appeal, which included a Rule 311(d)

certification. See id. Nevertheless, this Court concluded that the original,

timely, notice of appeal was defective for failure to include the requisite

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2 We note that Dugger has been superseded by Rule 311(d). See Pa.R.A.P. 311(d) cmt.; Commonwealth v. Dixon, 907 A.2d 468,471 n.8 (Pa. 2006).

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certification under Dugger and Malinowski. See Chism, 216 A.3d at 1136-

37. We addressed the untimely amended notice of appeal as follows:

Moreover, we cannot conclude that the subsequent inclusion of a Rule 311(d) certification in the amended notice of appeal that the Commonwealth filed with this Court cured the defect of the lack of certification in the original notice of appeal. See Knoeppel, 788 A.2d at 407 (explaining that subsequent inclusion of the certification does not cure the defect). Even if it could serve as a cure to the defective original notice of appeal, the record does not indicate that the Commonwealth ever filed the amended notice of appeal with the trial court and[,] in any event, the Commonwealth filed it with this Court on February 19, 2019, well after the 30-day period.

***

In short, because the Commonwealth’s original notice of appeal lacked Rule 311(d) certification, the notice of appeal was defective, and the Commonwealth’s untimely amended notice of appeal did not cure this defect.

Id. at 1137 (some citations omitted).3

Instantly, the procedural posture of this case is nearly identical to that

in Chism. Here, the Commonwealth filed a timely notice of appeal on June ____________________________________________

3 We observe that the Commonwealth, in its answer to the application to quash, asserts that the holding in Chism urged it to seek nunc pro tunc relief and to file the amended notice of appeal in the trial court first. See Answer to Application to Quash, 8/2/25, at 5. We disagree with this characterization of the holding in Chism. In our view, this Court, in Chism, noted that two of the many issues with the amended notice of appeal were its untimeliness and improper filing. See Chism, 216 A.3d at 1137. Further, this Court clearly did not rule on whether an amended untimely notice of appeal, with nunc pro tunc relief or not, could even cure the Rule 311(d) defect under Knoeppel. See Chism, 216 A.3d at 1137 (this Court stating “Even if [the amended notice of appeal] could serve as a cure to the defective original notice of appeal . . .”) (emphasis added). It is clear that the Chism Court was merely highlighting the numerous procedural pitfalls before it. Thus, any inference the Commonwealth may have intuited from Chism is erroneous and misplaced.

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12, 2025, but failed to include the requisite Rule 311(d) certification. As such,

this original notice of appeal was defective and the Commonwealth had no

right to appeal. See Dugger, supra; Malinowski, supra; see also

Pa.R.A.P. 311(d).

Nevertheless, we are cognizant that, here, the Commonwealth sought

nunc pro tunc relief, which the trial court granted, and the Commonwealth

filed a nunc pro tunc amended notice of appeal with the trial court that

purported to cure the Rule 311(d) defect in its original notice of appeal. In

particular, the Commonwealth sought nunc pro tunc relief to correct its

defective notice of appeal because the assistant district attorney was on

vacation and, as a result, failed to correct the defective filing prior to the

expiration of the 30-day appeal window, which resulted in a loss of the

Commonwealth’s right to appeal. See Answer to Application to Quash,

8/2/25, at 1 (explaining assistant district attorney was on vacation and could

not timely have corrected defective June 12, 2025 notice of appeal).

We conclude that the trial court’s grant of nunc pro tunc relief is a legal

nullity. Our appellate rules generally prohibit a trial court from taking action

after an appeal is taken. See Pa.R.A.P. 1701(a) (“[e]xcept as otherwise

prescribed by these rules, after an appeal is taken . . . the trial court . . . may

no longer proceed further in the matter”); see also id. at (b) (setting forth

exceptions). “[U]nder [our a]pellate [r]ules . . . a trial court has no jurisdiction

over a case until an appellate court returns the record to it with instructions

for the trial court to proceed. Otherwise . . ., the trial court risks following an

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appellate decision that may not ultimately be the final law of the case.”

Commonwealth v. Harris, 230 A.3d 1124, 1127 (Pa. Super. 2020). This

Court has also held that “Rule 1701 provides no exceptions that would have

permitted the trial court to enter a valid order granting leave to appeal nunc

pro tunc” after a party filed its first notice of appeal with this Court and before

the record was remanded to the trial court. Bell v. Kater, 839 A.2d 356, 358

(Pa. Super. 2003) (emphasis added). Thus, the trial court lacked the authority

to grant nunc pro tunc relief in this case and, therefore, the order granting the

Commonwealth nunc pro tunc relief to file an amended notice of appeal with

a corrective Rule 311(d) certification is a legal nullity. See Pa.R.A.P. 1701(a);

Bell, supra.4

4 Furthermore, even if nunc pro tunc relief could be granted under these circumstances, which it cannot, such relief is inappropriate based upon the facts in this case. Generally, nunc pro tunc relief is reserved to “vindicate the right to an appeal where that right has been lost due to certain extraordinary circumstances.” Commonwealth v. Stock, 679 A.2d 760, 764 (Pa. 1996). Instantly, there is nothing about these circumstances that is extraordinary and we note that Rule 311(d) is not a new rule and does not impose any hardship upon the Commonwealth. See Malinowski, supra (Commonwealth not required to prove termination or substantial handicap; mere certification is sufficient). Additionally, there is nothing in the record before us that would demonstrate a breakdown in the operation of the court such that nunc pro tunc relief would be warranted. See Commonwealth v. Williams, 893 A.2d 147, 150 (Pa. Super. 2006) (trial court abused discretion in granting Commonwealth nunc pro tunc relief to file notice of appeal where no extraordinary circumstances or breakdown in court operations existed). Therefore, even if the trial court could have granted nunc pro tunc relief, we would conclude that the trial court abused its discretion in doing so. Under either approach, the trial court’s order granting nunc pro tunc relief is a legal nullity.

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Moreover, as set forth above, our case law mandates that the

Commonwealth cannot remedy a defective original notice of appeal, in the

case of a Rule 311(d) certification, with a subsequent filing. See Chism,

supra. Indeed, in line with our decisions in Knoeppel and Chism, the

Commonwealth cannot cure a Rule 311(d) defect with a subsequent filing.5

Therefore, the Commonwealth’s untimely amended notice of appeal does not

and cannot cure the Rule 311(d) defect. See Knoeppel, supra; Chism,

supra. Accordingly, we grant Ailey’s application to quash and quash this

appeal.6

5 We are cognizant of our Supreme Court’s discussion in Young, on whether

appellate courts have authority to correct defective notices of appeal. See Young 265 A.3d at 475-78. In particular, we note that our Supreme Court explained, “we should clarify that, under [Pa.R.A.P.] 902, appellate courts have discretion to remand a timely-filed notice of appeal to the lower court to remedy a non-jurisdictional defect.” Id. at 475 (emphasis added). As explained above, a Rule 311(d) defect is a jurisdictional defect which we are without authority to remand for correction. See id. Therefore, we are unable to remand a Commonwealth notice of appeal to cure a Rule 311(d) defect. Thus, Young further leads us to the conclusion that Rule 311(d) may not be corrected by subsequent filings, even if that filing is an amended notice of appeal.

6 In reaching this conclusion, we emphasize that, at this time, we make no

determination on whether a timely notice of appeal with a Rule 311(d) defect, followed by a timely filed amended notice of appeal purporting the cure the Rule 311(d) defect, could still comport with the requirements of 311(d). Our case law makes clear that the Commonwealth may not cure a Rule 311(d) defect with subsequent filings. See Knoeppel, supra; Chism, supra. We note that the subsequent filings in Knoeppel were not amended notices of appeal and the subsequent filings in Chism were untimely filed outside of the 30-day appeal window set forth in Rule 903(a). However, that procedural posture is not before this Court.

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Application to quash granted. Appeal quashed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 12/31/2025

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