Com. v. Tirado, L.

• Court: Superior Court of Pennsylvania
• Decided: October 30, 2018
• Docket: 83 WDA 2018
• Status: Unpublished

Opinion

J-S50025-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : LUIS LAQUAL TIRADO : No. 83 WDA 2018

Appeal from the Order January 5, 2018 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002366-2017

BEFORE: BOWES, J., OTT, J., and KUNSELMAN, J.

JUDGMENT ORDER BY OTT, J.: FILED OCTOBER 30, 2018

The Commonwealth appeals from the order entered January 5, 2018,

granting Luis Laqual Tirado’s pretrial motion to suppress evidence recovered

during a traffic stop. Because the Commonwealth failed to certify in its notice

of appeal that the order will terminate or substantially handicap its

prosecution, we quash the appeal as interlocutory.1

Pursuant to Pennsylvania Rule of Appellate Procedure 311, “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.”

Pa.R.Crim.P. 311(d). Rule 904 further mandates: “When the Commonwealth

takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall ____________________________________________

1We note Tirado raised this issue in his appellee brief. See Tirado’s Brief at 5-6. J-S50025-18

include a certification by counsel that the order will terminate or substantially

handicap the prosecution.” Pa.R.A.P. 904(e) (emphasis supplied).

In the present case, the Commonwealth failed to include the requisite

certification in its notice of appeal. See Notice of Appeal, 1/10/2018. This

defect is fatal; “[w]ithout the certification, the Commonwealth has no right to

appeal.” Commonwealth v. Malinowski, 671 A.2d 674, 678 (Pa. 1996).

Moreover, the fact that the Commonwealth included the requisite certification

in the Statement of Jurisdiction in its appellate brief is of no moment. The

certification must be in the notice of appeal. See Commonwealth v.

Knoeppel, 783 A.2d 404 (Pa. Super. 2001) appeal denied, 806 A.2d 859 (Pa.

2002).

Because the Commonwealth failed to certify in its notice of appeal that

the order under review will terminate or substantially handicap its prosecution,

we are compelled to quash this appeal.

Appeal quashed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/30/2018

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