Com. v. Cosnek

• Decision Date: 24 November 2003
• Citation: 836 A.2d 871,575 Pa. 411
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Richard Joseph COSNEK, Appellant.
• Court: Pennsylvania Supreme Court

836 A.2d 871

575 Pa. 411

COMMONWEALTH of Pennsylvania, Appellee, v. Richard Joseph COSNEK, Appellant.

Supreme Court of Pennsylvania.

Argued March 4, 2003.

Decided November 24, 2003.

William Patrick Weichler, Erie, for Richard Cosnek.

Hugh J. Burns, Philadelphia, Bradley A. Foulk, Erie, for Commonwealth of Pennsylvania.

OPINION

Justice LAMB.

We granted allocatur in this case to decide whether the Commonwealth may certify an interlocutory appeal from a pretrial ruling that denied its motion in limine to exclude certain defense evidence. For the reasons that follow, we hold that it may not.

This case arose from a fatal car accident on July 5, 1997, in the City of Erie in which Joseph Trigilio was killed. Mark Dylewski was pursuing Richard Cosnek in a high-speed car chase that ended when Cosnek failed to stop at a stop sign and collided with Trigilio's vehicle. Cosnek was charged on November 21, 1997 with several offenses including involuntary manslaughter and vehicular homicide.

Prior to trial, a defense motion to suppress blood-alcohol test results was granted; but, a defense motion to permit expert testimony on "fight or flight" syndrome was denied. The Commonwealth unsuccessfully appealed the suppression of the blood-alcohol test results to the Superior Court, which held on December 2, 1998 that the inevitable discovery rule could not cure a facially invalid warrant.

The case was again scheduled for trial, prior to which the Commonwealth filed a motion in limine to preclude a defense expert in accident reconstruction from testifying that the accident was caused by the chase, not by Cosnek disregarding his duty to stop. After a Frye¹ hearing, the trial court denied the Commonwealth's motion to preclude the testimony, finding that causation was within the scope of an accident reconstructionist's expertise. The Commonwealth appealed, certifying that the admission of the evidence terminated, or substantially handicapped, the prosecution of the case. The Superior Court reversed on June 20, 2000 in a memorandum opinion, relying on its own recent opinions to find that the appeal was properly before it and that the expert testimony would impermissibly bolster witness credibility. The court erred when it relied on its opinions in Commonwealth v. Pitts, 740 A.2d 726 (Pa.Super.1999), and Commonwealth v. Allburn, 721 A.2d 363 (Pa.Super.1998),alloc. denied, 559 Pa. 662, 739 A.2d 163 (1999), to find that the Commonwealth may certify an appeal of a pretrial order admitting defense evidence.

Certification of pretrial appeals by the Commonwealth is an exception to the requirement that appeals may be taken only from final orders. The exception is memorialized as Pa.R.A.P. 311(d), which provides that:

In a criminal case, under 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.

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

The plain language of Rule 311(d) limits its application to "circumstances provided by law"; therefore, we examine the legal underpinnings of the Rule for its proper application.

Early in the 19th Century, this Court occasionally entertained, without question, Commonwealth appeals from final orders in criminal cases. See Commonwealth. v. Taylor, 5 Bin. 277 (Pa.1812) (hearing appeal of a dismissal of a burglary charge after verdict of guilt); Commonwealth v. McKisson, 8 Serg. & Rawle 420 (Pa.1822) (appeal from the dismissal of indictment for fraud for selling a heifer with a broken leg).

However, more recent jurisprudence holds that the Fifth Amendment² to the United States Constitution prohibition against double jeopardy places constitutional limits on government appeals in criminal cases; therefore, the government may appeal only pursuant to express statutory authority. Arizona v. Manypenny, 451 U.S. 232, 245, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981). The United States Supreme Court has held that it is fundamental that "the United States has no right of appeal in a criminal case absent explicit statutory authority." United States v. Scott, 437 U.S. 82, 84-85, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978). "[A]ppeals by the Government in criminal cases are something unusual, exceptional, not favored." Carroll v. United States, 354 U.S. 394, 400, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957).

The federal equivalent of Rule 311(d) is 18 U.S.C. § 3731, which provides in relevant part:

An appeal by the United States shall lie to a court of appeals from a decision or order of a district court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

18 U.S.C. § 3731 (emphasis added).

The courts have strictly construed Section 3731. U.S. v. McVeigh, 106 F.3d 325, 330 (10th Cir.1997) (collecting cases) (refusing a government appeal of a sequestration order).

Before the enactment of Section 3731, the United States Supreme Court was unmoved by the argument that in some instances the government might never be able to appeal an adverse ruling, reasoning that:

Many interlocutory decisions of a trial court may be of grave importance to a litigant, yet are not amenable to appeal at the time entered, and some are never satisfactorily reviewable. In particular is this true of the Government in a criminal case, for there is no authority today for interlocutory appeals, and even if the Government had a general right to review upon an adverse conclusion of a case after trial, much of what it might complain of would have been swallowed up in the sanctity of the jury's verdict.

Carroll v. U.S., 354 U.S. at 406, 77 S.Ct. 1332.

The language of the Pennsylvania Rule 311(d) is derived from Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), in which this Court established the parameters for handling cases after the United States Supreme Court held in Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), that "all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." In Bosurgi, the trial court held that the only evidence against the defendant was illegally seized, which, after Mapp, compelled its exclusion from trial.

This Court found that a pretrial suppression order which terminates or handicaps the prosecution has "such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth." Bosurgi, 190 A.2d at 308. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, 386 (1985), this Court held that when the Commonwealth certifies that a suppression order substantially handicaps or terminates a prosecution that certification "in and of itself, precipitates and authorizes the appeal." On May 6, 1992, effective July 6, 1992, Pa.R.A.P. 311 was amended to permit an interlocutory appeal as a matter of right by the Commonwealth in instances where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution. Pa. R.A.P. 311(d).

The roots of the Rule are planted in the fundament of constitutional law: the Commonwealth has a never shifting burden to prove each element of the crime charged beyond a reasonable doubt. Constitutional due process requires that the government prove every fact necessary to constitute the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The burden of proof never shifts but rests with the prosecution throughout. Turner v. Commonwealth, 86 Pa. 54, 74 (1878). It is the continuing presumption of innocence that is the basis for the requirement that the state has a never-shifting burden to prove guilt of each essential element of the charge beyond a reasonable doubt. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441, 445 (1959). When a pretrial motion removes evidence from the Commonwealth's case, only the prosecutor can judge whether that evidence substantially handicaps his ability to prove every essential element of his case. Dugger, 486 A.2d at 386. Additionally, only the prosecutor can judge whether he can meet his constitutional burden of proving his case without that evidence. Id.

Bosurgi and Rule 311(d) were read to include motions in limine by Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996). In a subsequent case, Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 18 (1998), this Court held that "[a]n order denying a motion for a continuance to secure the presence of a necessary witness has the same practical effect of an order suppressing or excluding evidence" and also allowed the Commonwealth's interlocutory appeal.

In this case, the Superior Court's error in relying on Commonwealth v. Pitts and Commonwealth v. Allburn is the result of a misreading of Gordon and Matis.

In Pitts, the Commonwealth appealed two pretrial rulings, one that suppressed a statement made by the defendant and a second that denied a Commonwealth motion to preclude psychiatric evidence of post-traumatic stress syndrome to support a claim of self-defense. Pitts, 740 A.2d at 732. The panel in Pitts held that both questions were properly before it. The first question, a straight-forward suppression motion, was clearly appropriate under a Rule 311(d) certification.

The second question in Pitts, however, raised the same question which is raised here: whether the Commonwealth may appeal the denial of a motion excluding defense evidence. To answer that question, the Pitts court relied on Allburn, to its detriment. The Pitts panel held that Allburn stood for the proposition that "when...