Commonwealth v. Slovikosky

543 A.2d 553, 374 Pa. Super. 441, 1988 Pa. Super. LEXIS 1728

• Court: Supreme Court of Pennsylvania
• Decided: May 26, 1988
• Docket: 00557
• Status: Published

Opinions

POPOVICH, Judge:

This is an appeal from the order of the Court of Common Pleas of Cambria County granting a motion to suppress and “sustaining the appeal from summary conviction” by the Commonwealth. We quash.

Before addressing the merits of the Commonwealth’s appeal, we must decide whether the order appealed is final. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, (1985), the Supreme Court, in the course of discussing the sine qua non for an appeal from an order granting a motion to suppress, reinforced what was intended by Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). In doing so, it wrote:

The Superior Court when directed to hear an appeal is required to do so, under the circumstances we direct.⁵

As the final appellate court we determine both the propriety of hearing an appeal and direct the method it shall be heard. That we directed [in Bosurgi ], in the clearest fashion, that the Superior Court is required to hear a Commonwealth appeal from a suppression hearing, ... cannot be doubted.

[In Bosurgi, t]he right of appeal was granted the Commonwealth to satisfy a question of elemental fairness; providing the Commonwealth with what might be their only appeal. To lament that the [Superior] court was not told under what circumstances the suppression order substantially handicaps or terminates a prosecution is simply fatuous and evasive____ They were simply told [by the Supreme Court] to hear and determine the validity of a suppression order when the Commonwealth pleads a substantial handicap or termination. That certification is not contestable. It, in and of itself, precipitates and authorizes the appeal. The formal purpose of the Superior Court is to maintain and effectuate the decisional law of this Court as faithfully as possible. In some instances, this being one, we direct the grounds for appeal.

Therefore, the Commonwealth’s appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.

Given the prerequisite of the certification [having been met instantly,] we hold that the Commonwealth has an absolute right of appeal to the Superior Court to test the validity of a pre-trial suppression order.

506 Pa. at 543-46 & n. 5, 486 A.2d at 385, 386 & n. 5 (Emphasis added).

As stated quite clearly in Dugger, the Superior Court, as an intermediate appellate court, acts at the “direction” of the Pennsylvania Supreme Court when it comes to hearing an appeal and under what circumstances such a review is to be conducted.

Further, as is applicable to the case at bar, the Dugger Court pointed out that the Commonwealth’s good faith certification that a suppression order terminates or substantially handicaps its prosecution is a condition precedent which “precipitates and authorizes the appeal.” In other words, as we interpret Dugger, because certification is the predicate for an appeal, i.e., authorizes it, the absence of such a certification by the Commonwealth “as to the impact of the suppression order upon its case” subjects the appeal to being quashed. See Dissenting Opinion by Justice Hutchinson in Commonwealth v. Duncan, 514 Pa. 395, 410, 525 A.2d 1177, 1184 (1987); cf. Commonwealth v. Conway, 368 Pa.Super. 488, 490, 534 A.2d 541, 542 (1987) (“... our Supreme Court held that the Commonwealth may appeal a suppression order as long as the Commonwealth certifies in good faith that the suppression order substantially handicaps or terminates the prosecution.” (Citation omitted; emphasis added)); Commonwealth v. Hoffman, 367 Pa.Super. 79, 532 A.2d 463 (1987) (Statement that the suppression order substantially handicapped the prosecution properly invoked the jurisdiction of Superior Court to entertain the appeal from an otherwise interlocutory order).

As an intermediate appellate court acting under the auspices of the Pennsylvania Supreme Court, in regard to maintaining and effectuating the decisional law of this jurisdiction, we find that the Commonwealth’s failure to satisfy the “prerequisite” for invocation of appellate jurisdiction to review a suppression order enunciated in Bosurgi and clarified by Dugger requires that we quash the Commonwealth’s appeal.¹ Stated otherwise, the Commonwealth has failed to comply with the dictates of Dugger by not “certifying” (either at the hearing granting the motion to suppress or in its brief filed with this Court) that “the suppression order terminate[d] or substantially handicapped] its prosecution.” Accordingly, we have no “jurisdiction” to hear the Commonwealth’s appeal and must quash to implement the Supreme Court’s objective in requiring such a certification, i.e., a means to prevent frivolous appeals or appeals intended solely for delay. Dugger, supra; Commonwealth v. Hunsberger, 358 Pa.Super. 207, 209-11, 516 A.2d 1257, 1258 (1986).

As for that portion of the order sustaining the appeal from summary conviction, we note, initially, that it is interlocutory. The reason is, in this jurisdiction, a Common Pleas Court must find a defendant either “guilty” or “not guilty” vis-a-vis “dismissing” or “sustaining” his/her appeal from a summary conviction so as to render it final for appeal purposes. See Commonwealth v. Morgenthaler, 320 Pa.Super. 120, 466 A.2d 1091 (1983).

Moreover, even if, arguendo, we were to read the lower court’s “sustaining” of the defendant’s appeal as equivalent to a “not guilty” verdict, the prosecution would be prohibited from appealing the same.² See Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987).

Therefore, for the reasons herein stated, the Commonwealth’s appeal of that portion of the court’s order granting the defendant’s motion to suppress is quashed for non-compliance with Dugger. As for that portion of the same order “sustaining” the defendant’s appeal of his summary conviction and the Commonwealth perfecting an appeal therefrom, we likewise quash. See Morgenthaler, supra.

Appeal quashed. Jurisdiction is relinquished.

MONTEMURO, J., files a concurring opinion. WIEAND, J., files a dissenting opinion.

5 Our authority to adopt such standards is grounded on this Court’s general supervisory and administrative authority, 42 Pa.C.S. § 1706, and specifically our authority to adopt procedural rules. 42 Pa.C.S. § 1722. Thus, the Commonwealth’s right to appellate review of a suppression order is based on the definition of such an order as "a final order by general rule." 42 Pa.C.S. § 5105(a).

1 . Cf. Commonwealth v. Hawthorne, 364 Pa.Super. 125, 527 A.2d 559 (1987), allocatur denied 517 Pa. 592, 535 A.2d 81 (1988).

2 . Because the record discloses that no de novo trial had commenced, so as to trigger the truth-determining process—only a suppression hearing was being conducted, the court below acted prematurely in sustaining the defendant’s appeal from summary conviction. Compare Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987).

At the completion of the suppression hearing both parties were given the opportunity to submit briefs. Thereafter, the court entered the order which is the subject of the instant appeal.

We observe that the proper course that should have been followed by the court below, in regard to sustaining the defendant’s appeal from summary conviction, was to have entered its suppression order and allowed the prosecution to take an appeal in conformance with Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), and not have "sustained” the defendant’s appeal from summary conviction until after the prosecution had been afforded the chance to present its case against the defendant, if one could have been made, in the context of a trial, a fact which did not occur at bar. See discussion supra.

We note, for edification purposes, if such had occurred, the Commonwealth would be precluded from perfecting an appeal from a “not guilty” verdict. See Jung, supra.