Com. v. DeMarco

• Decision Date: 26 July 1990
• Citation: 396 Pa.Super. 357,578 A.2d 942
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Drew De MARCO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Blair De MARCO, Appellee.
• Court: Pennsylvania Superior Court

Page 942

578 A.2d 942

396 Pa.Super. 357

COMMONWEALTH of Pennsylvania, Appellant, v. Drew De MARCO, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Blair De MARCO, Appellee.

Superior Court of Pennsylvania.

Submitted Jan. 18, 1990.

Filed July 26, 1990.

Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Dennis J. Cogan, Philadelphia, for appellees.

Before OLSZEWSKI, KELLY and JOHNSON, JJ.

KELLY, Judge:

In this case we are called upon to determine whether the trial court improperly suppressed an answering machine tape upon which incriminating information was recorded, based upon a conclusion that it was subject to statutory exclusion as the fruits of an unlawful interception under the Wiretapping and Electronic Surveillance Control Act. We are also asked to determine if the failure to include a certification of impairment in the notice of appeal is a fatal defect, or whether such an omission may be cured by submission of a separate certification statement.

We find that the separate certification statement filed by the Commonwealth fulfilled the certification requirement. We also find that the trial court erred in suppressing the answering machine tape. Consequently, we reverse the suppression order.

Facts and Procedural History

The facts and procedural history are not in dispute. They may be briefly summarized as follows.

Following a two month investigation, the Philadelphia police applied for, and were granted, a warrant to search appellee's home at 9582-A James Street in Philadelphia. The probable cause affidavit demonstrated probable cause to believe that a substantial bookmaking operation was being conducted on the premises. The search warrant specifically authorized the police to seize telephones, recorders and tapes, among various other items specifically listed. The search produced significant incriminating evidence, including an answering machine tape on which inculpatory statements regarding the gambling operation were recorded. Appellees were arrested and charged with poolselling and bookmaking offenses.

Prior to trial in the Philadelphia Municipal Court, appellees moved to suppress the answering machine tape because it was made in alleged violation of the Wiretapping and Electronic Surveillance Control Act and was therefore subject to suppression. Philadelphia Municipal Court Judge Morton Krase agreed, and ordered the tape suppressed.

The Commonwealth filed timely notice of appeal of the suppression order to the Philadelphia Common Pleas Court. Appellees, however, filed a motion to quash based upon the absence of the required certification of impairment. Some months later, the Commonwealth filed a supplemental statement certifying impairment. A short time after that, the common pleas court granted the motion to quash specifically dismissing the supplemental certification as untimely. The common pleas court also noted that it agreed with the municipal court suppression order on the merits. This timely appeal followed.

Certification

In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that when the Commonwealth certified that the suppression of evidence substantially handicaps the prosecution, "that certification is not contestable," and "in and of itself precipitates and authorizes the appeal." 486 A.2d at 386. See also Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988) (plurality). In Dugger, our Supreme Court explained:

From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence. In the first situation, the element of finality inherent in the order of the suppression is apparent and sufficient to render the order appealable. In the second situation, although the element of finality in the order is not so apparent it is nevertheless present.

Without a right of appeal in the Commonwealth in the second situation, the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression which forces the Commonwealth to trial without all of its evidence. The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents.

486 A.2d at 385-86, quoting Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963). (Emphasis added).

When our Supreme Court spoke to the Commonwealth going to trial "without all of its evidence" (emphasis in original) it referred to the situation where any relevant evidence is suppressed, and not merely where all relevant evidence is suppressed. Our Supreme Court explained the reason for avoiding any fine balancing of the degrees of handicap resulting from various suppression orders as follows:

To require that a suppression record be cluttered with questions of ultimate relevance is senseless. A suppression record ought not, and properly handled does not, disclose the ultimate relevance of a piece of evidence or why a prosecution could not go forth if that evidence is suppressed.

The relevancy of a piece of evidence can rarely be seen outside the context of the case, even then, not always clearly. Most often considerable thought and argument must be supplied before a piece of evidence is clearly discerned as relevant. All relevant evidence may not be necessary to a prosecution, but one piece of suppressed evidence may make all other evidence irrelevant. It is an argument all its own and certainly must be an argument dehors the record of a suppression court.

486 A.2d at 386.

Moreover, under our system of law the slenderest of reeds may sustain a reasonable doubt. Consequently, whenever possible, the prosecution in discharging its responsibility to the community advisably presents multiple proofs of the various elements of an offense to ensure that a strained doubt as to an individual proof does not become the reed by which an acquittal is sustained. When a jury weighs all the evidence in its balance, the absence of a single item of relevant evidence may be the subtle difference which tips the balance. For defendants there are post-verdict appeals to question whether evidence was improperly kept from the scales; for the Commonwealth there are none. Thus it is, that interests of justice generally favor interlocutory review of Commonwealth appeals from suppression orders. See Commonwealth v. Dugger, supra, 486 A.2d at 386; id., 486 A.2d at 387 (Hutchinson, J., concurring). Of course, the general prohibitions and sanctions against frivolous and dilatory appeals apply to these as well as all other appeals. Id.

Commonwealth certification of substantial hardship has been characterized as a prerequisite to appellate review. Commonwealth v. Dugger, supra, 486 A.2d at 387. Moreover, this Court has held that the absence of a proper certification renders a Commonwealth appeal from a suppression order subject to a motion to quash. See Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988). As certification was made prior to the order to quash in this case, however, neither Dugger nor Slovikosky can be deemed controlling, or particularly supportive of the quashal order in this case.

Rather, the instant case presents an issue of first impression as to the manner and timing of the certification required when the Commonwealth appeals a suppression order. The notice of appeal submitted by the Commonwealth did not contain the required certification. Appellee filed a motion to quash. While the motion was still pending, though several months after the motion to quash was filed, the Commonwealth filed with the common pleas court a separate certification statement. Shortly after that, the trial court quashed the appeal, dismissing the supplemental certification as untimely.

Neither the parties nor the trial court have cited to this Court any specific case precedent or formal rule (local or general) dictating the manner and timing of the Commonwealth's required certification. Thus, while inclusion of certification in the notice of appeal may certainly be permissible or even preferable, there is as yet no affirmative requirement that the certification be presented at that time, or in that manner. Thus, it is far from clear that the certification was required to be included in the notice of appeal as suggested by appellee and the common pleas court.

Moreover, rules of Appellate Procedure and Rules of Criminal Procedure are to be construed liberally so as to secure and facilitate the just, speedy, and inexpensive administration of justice in this Commonwealth. See Pa.R.A.P. 105; Pa.R.A.P. 107; Pa.R.A.P. 2101; Pa.R.Crim.P. 2; Pa.R.Crim.P. 90; Pa.R.Crim.P. 150. Even if there had been a formally promulgated rule regarding the timing and manner of the required hardship certification, the common pleas court would still have been required to construe it liberally rather than mechanistically. The fact that the time and manner for providing the certification of hardship required for appeals from suppression orders has not been specifically set forth in a procedural rule provides all the more reason for liberality in this respect. Hence, we conclude that formal certification filed anytime prior to the granting of a motion to quash based upon the absence of the certification constitutes sufficient compliance with the certification requirement set forth in Dugger.

Even assuming, arguendo, that our Supreme Court intended certification to be...