Commonwealth v. DeFelice

375 A.2d 360, 248 Pa. Super. 516, 1977 Pa. Super. LEXIS 1990

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 1335
• Status: Published

Opinions

HOFFMAN, Judge:

The Commonwealth has appealed the suppression by the lower court of appellee’s out-of-court identifications and arrest.¹ Because the lower court did not suppress the appellee’s confession, the fruits of the robbery or the complaining witnesses’ in-court identifications, the Commonwealth has not been substantially handicapped in its ability to proceed to trial. Therefore, we quash this appeal.

During the morning of October 9, 1974, a lone gunman robbed a pharmacy in Haverford Township, Delaware County. At approximately 10:00 a. m., two Haverford Township police reported to the scene and secured a detailed description of the suspect. The police followed the suspect’s reported route of escape and determined that he had entered a house at 100 Marthart Avenue. As the police talked to people standing outside the house, appellee came out and requested medical assistance for a cut hand.

The police noticed that appellee fit the description of the robber except for the fact that the suspect was supposed to have a beard while appellee had obviously recently shaved. The officers left appellee’s residence and reported their findings to the Haverford Township Detective Bureau. Detective McNasby instructed the two officers to return to appellee’s residence to bring appellee to the station for further questioning. McNasby also instructed the officers to try to get a positive identification of the appellee on their way back to the station.

The officers returned to appellee's residence a little before noon, knocked on the door, and requested to speak to appellee. When appellee came to the door, the officers told him they were investigating a robbery and requested that he agree to an identification by the eyewitnesses. The officers handcuffed appellee and drove to the pharmacy. As they alighted from the car, the pharmacy clerk immediately identified appellee as the robber. The police placed appellee under "formal” arrest, warned him of his right to remain silent, and drove him to the police station. At the police station, the police arranged a face-to-face confrontation between appellee and three other eyewitnesses. The police warned appellee of his Miranda rights again and then secured his signature on a consent form allowing them to search his apartment. The officers returned to appellee’s residence and searched his room, but found no proceeds of the robbery. After the officers secured signed consent forms for the search of the rest of the house from the other occupants, the officers found a variety of hypodermic needles, related drug paraphernalia, assorted pills and other items taken in the robbery, and a .38 caliber revolver loaded with hollow point bullets, in the attic of the house. The officers then returned to the police station.

Upon their return, the officers warned appellee of his right to remain silent; and appellee agreed to submit to questioning without an attorney present. At approximately 3:20 p. m., appellee gave a statement to the police in which he admitted that he committed the robbery.

Appellee filed a motion to suppress all of the physical evidence secured as the result of his allegedly unláwful arrest because it was secured without a warrant and by coercion. Appellee also sought to suppress the eyewitness identifications because they were secured in the absence of counsel and by means of impermissibly suggestive procedures. Finally, appellee contended that his confession was involuntary because he made it while going through withdrawal under promises of medical assistance if he cooperated. After a hearing on April 22, 1975, the lower court suppressed appellee’s identification and “the arrest.” The lower court did not clearly indicate that it would suppress the fruits of the search and seizure.² It did not hold a taint hearing to determine whether the appellant could still be identified in court by the eyewitnesses.³ Further, it is clear that the lower court did not grant appellee’s request that his allegedly involuntary confession be suppressed.⁴

It is a fundamental axiom of appellate court jurisdiction that an appeal will lie only from a definitive order, decree or judgment which finally terminates the action. Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967); Commonwealth v. Guardiani, 226 Pa.Super. 435, 310 A.2d 422 (1973). Except for certain statutory exceptions,⁵ not relevant to the instant case, this Court’s jurisdiction is confined to appeals from final order of the courts of common pleas. The Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. III, § 302, 17 P.S. § 211.302 (Supp.1976). See Commonwealth v. Rucco, 229 Pa.Super. 247, 249-50, 324 A.2d 388, 389 (1974). It is also well settled that the parties may not stipulate to appellate jurisdiction in disregard of statutory procedures. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). And that jurisdiction may not be conferred through the approval of such agreements by the court. Commonwealth v. Yorktowne Paper Mills, Inc., supra; Fenerty Disbarment Case, 356 Pa. 614, 52 A.2d 576, cert. denied, 332 U.S. 773, 68 S.Ct. 89, 92 L.Ed. 358 (1947).

The Appellate Court Jurisdiction Act has expanded the jurisdiction of the appellate courts of this Commonwealth in one important respect: “The failure of an appellee to file an objection to the jurisdiction of an appellate court . shall, unless appellate court shall otherwise order, operate to perfect the appellate jurisdiction of such appellate court, notwithstanding any provision of this act, or of any general rule adopted pursuant to section 505 of this act, vesting jurisdiction of such appeal in another appellate court.” Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. V, § 503; 17 P.S. § 211.503(a) (Supp.1976). This section of the Appellate Court Jurisdiction Act vests this court with the discretionary power to hear an appeal if neither party objects to its jurisdiction, even though a statute confers jurisdiction on another court or would otherwise bar our hearing this appeal. See Commonwealth v. Rucco, supra. Nevertheless, our appellate courts have consistently held that the right of the Commonwealth to appeal from a pretrial suppression order is very strictly limited. Commonwealth v. Ray, supra; Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). The Commonwealth may only appeal from a pre-trial order if it involves a pure question of law and if it effectively terminates or substantially handicaps a prosecution. Commonwealth v. Ray, supra; Commonwealth v. Pomponi, 447 Pa. 154, 284 A.2d 708 (1971); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1971); Commonwealth v. Bordner, 432 Pa. 405, 247 A.2d 612 (1968); Gaskins Case, 430 Pa. 298, 244 A.2d 662 (1968); Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966); Commonwealth v. Bosurgi, supra; Commonwealth v. Barkley, 234 Pa.Super. 503, 341 A.2d 192 (1975); Commonwealth v. Kline, 234 Pa.Super. 12, 335 A.2d 361 (1975); Commonwealth v. Cosby, 234 Pa.Super. 1, 335 A.2d 531 (1975); Commonwealth v. Ferrone, 218 Pa.Super. 330, 280 A.2d 415 (1971); Commonwealth v. Hernley, 216 Pa.Super. 177, 263 A.2d 904 (1970); Commonwealth v. Smith, 212 Pa.Super. 403, 244 A.2d 787 (1968); Commonwealth v. Pay-ton, 212 Pa.Super. 254, 243 A.2d 202 (1968); Commonwealth v. Evans, 210 Pa.Super. 454, 233 A.2d 585 (1967).

In Commonwealth v. Bosurgi, supra, our Supreme Court held that the requisite finality is present in two limited situations: (a) if the order of suppression will result in a termination or conclusion of the prosecution because the Commonwealth has insufficient evidence to convict the accused or (b) if the order of suppression “ . . . will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence.” Commonwealth v. Bosurgi, supra, 411 Pa. at 63, 190 A.2d at 308. Bosurgi and subsequent cases which have permitted the Commonwealth to appeal pretrial suppression orders whenever such orders will “substantially handicap” the Commonwealth have justified such interlocutory appeals on the theory that the suppressed evidence may well mark the difference between success and failure in the prosecution. Commonwealth v. Bosurgi, supra; Commonwealth v. Smith, supra, 212 Pa. Super, at 405, 244 A.2d at 788. If the Commonwealth were forced to go to trial with the crucial evidence suppressed, the opportunity for appellate review would be foreclosed because it could never appeal from a verdict of acquittal. Commonwealth v. Pomponi, supra; Commonwealth v. Bordner, supra 432 Pa. at 421, 247 A.2d at 620 (Concurring Opinion by Roberts, J.).

When the Commonwealth appeals from a suppression order which does not either terminate the case or substantially handicap the prosecution, we must quash the appeal. In Commonwealth v. Smith, supra, the lower court suppressed several out-of-court statements made by an accused who was charged with indecent assault and assault and battery with intent to ravish. The Commonwealth sought to establish the admissibility of the accused’s apology to the victim in order to corroborate her identification testimony. We found that the Commonwealth’s case was virtually intact, despite the suppression order, and we quashed the appeal.

In Commonwealth v. Kloch, 221 Pa.Super. 324, 292 A.2d 479 (1972), the appellee was charged with driving an automobile while under the influence of intoxicating liquor. State troopers found appellee asleep or unconscious, leaning against the front door of his car, which was stopped on the shoulder with the motor running and the lights on. When the trooper knocked on the window to awaken appellee, he opened the window; and the trooper noted the strong odor of alcohol on appellee’s breath. Appellee had difficulty producing his vehicle identification and failed certain field sobriety tests. The trooper placed appellee under arrest and subsequently secured his agreement to undergo a blood alcohol test. The lower court suppressed the results of the blood alcohol test, and the Commonwealth appealed. This Court quashed the appeal because the Commonwealth had ample evidence to convict appellee of driving while intoxicated. See also, Commonwealth v. Ferrone, supra.

The instant case is clearly controlled by Commonwealth v. Smith, supra, and Commonwealth v. Kloch.⁶ At trial, the Commonwealth can still introduce appellee’s confession, possible in-court identifications by two eyewitnesses, and the fruits of the robbery. None of these items is covered by the lower court’s suppression order.⁷ The lower court’s decision to suppress the out-of-court identifications does not so hamper the prosecution of appellee’s case that the order has the requisite attributes of finality. We, therefore, must quash the appeal.

Appeal quashed and case remanded for further proceedings.

PRICE, J., files a dissenting opinion in which JACOBS, J., joins. VAN der VOORT, J., files a dissenting opinion in which JACOBS, J., joins.

1 . The lower court’s order granted appellant’s petition “ . .to the extent that the identification and arrest are suppressed.”

2 . It may be necessary for the Commonwealth to secure clarification of the scope of the lower court’s order. It is clear that the lower court did not determine that the physical evidence was a fruit of the unlawful arrest. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The suppression of fruits of an unlawful arrest will not be ordered unless the lower court determines whether the fruits were “ . . . come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Id. at 487-88, 83 S.Ct. at 417.

3 . Assuming that the lower court correctly suppressed the out-of-court identification, the Commonwealth has not sought a determination of the issue of the admissibility of future in-court identifications. Their admissibility would depend on whether they derive from a source independent of the impermissibly suggestive identification procedures. United States v. Wade, 388 U.S. 218, 222, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 275, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

4 . The lower court clearly omitted the confession from its limited suppression order. See note 1, supra.

5 . For example, a court of common pleas may certify for appeal a controlling question of law as to which there is substantial ground for difference of opinion if its resolution will materially advance the termination of the case. Our Court may then, in its discretion, decide to take this appeal. Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. V, § 501; 17 P.S. § 211.501 (Supp. 1976). See also, Colvin v. Somat Corporation, 230 Pa.Super. 118, 326 A.2d 590 (1974).

6 . The dissent contends that the instant case is controlled by Commonwealth v. Rose, 211 Pa.Super. 295, 235 A.2d 462 (1967), and Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975). In Commonwealth v. Rose, supra, the appellee was charged with possession of narcotics. The lower court suppressed all of the drugs taken from appellee’s car. Despite the fact that the Commonwealth did not certify that it would be substantially handicapped, this Court determined that the case against the appellee would be terminated by the suppression order and allowed the appeal.

In Commonwealth v. Deren, supra, we determined that the absence of a certification by the Commonwealth that it would be substantially handicapped in the presentation of its case was not fatal to its right of appeal because we could make an independent determination that the suppressed evidence was essential to the Commonwealth’s case.

Both Rose and Deren involve cases in which no motion to quash was filed and in which the Commonwealth failed to certify that it could not proceed without the evidence. Rose and Deren stand for the proposition that, if we can determine from a review of the evidence available to the Commonwealth that it will be substantially handicapped, we should not quash the appeal sua sponte simply because the Commonwealth has not provided the required certification. In the instant case, it is very clear that the Commonwealth could not make the necessary certification because the requisite finality is completely absent.

7 . In the instant case, the order of the lower court is less than clear. The burden is clearly on the Commonwealth to preserve its right of appeal by insuring the entry of an appropriate order. Commonwealth v. Ray, supra 448 Pa. at 312, 292 A.2d at 413.

The Commonwealth may be able to secure a ruling on the scope of the lower court’s order either by attempting to introduce any item of evidence not specifically covered by it or by petitioning the lower court for clarification of the order.