Com. v. Kunkel

• Court: Superior Court of Pennsylvania
• Citation: 254 Pa.Super. 5,385 A.2d 496
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Dale KUNKEL and Alfred F. Crawford, Appellees.
• Decision Date: 13 April 1978

Page 496

385 A.2d 496 254 Pa.Super. 5 COMMONWEALTH of Pennsylvania, Appellant,
v.
Dale KUNKEL and Alfred F. Crawford, Appellees. Superior Court of Pennsylvania. Submitted Nov. 8, 1976.
Decided April 13, 1978.

Page 497

[254 Pa.Super. 7] Charles W. Johns and Robert L. Eberhardt, Asst. Dist. Attys., and Robert E. Colville, Dist. Atty., Pittsburgh, for Commonwealth, appellant.

Robert W. Selko and James Kerry O'Malley, Pittsburgh, for appellees.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

SPAETH, Judge:

Appellees were charged with gambling, poolselling, bookmaking, and related offenses. The lower court granted their suppression motion on the basis that the search warrant had been improperly issued. The Commonwealth filed this appeal.

It is settled that the Commonwealth may only appeal from a pre-trial order suppressing evidence if two requirements are satisfied: the appeal must involve a pure question of law, and the suppression must effectively terminate or substantially handicap the prosecution. See Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (filed Feb. 28, 1977); Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. DeFelice, 248 Pa.Super. 516, 375 A.2d 360 (1977). The second requirement was stated in Commonwealth v. Bosurgi, supra, 411 Pa. at 63-64, 190 A.2d at 308, as follows:

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.

It is, however, not settled how the Commonwealth is to show that it is "substantially handicapped"; indeed our cases are [254 Pa.Super. 8] in conflict, and before we may decide this case they must be reconciled.

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In Commonwealth v. DeFelice, supra, the majority of this court, per HOFFMAN, J., held that an appeal will be quashed where we determine from our examination of the record that the suppression order does not in fact terminate or substantially handicap the prosecution. In Commonwealth v. Trefry, 249 Pa.Super. 117, 375 A.2d 786 (1977), the majority, per PRICE, J., held that the bare allegation by the Commonwealth that it would be substantially handicapped was sufficient to assure appellate review.

These tests appear irreconcilable: Judge PRICE's test is satisfied by a bare allegation; Judge HOFFMAN's test requires a factual finding from the record. This appearance of irreconcilability is further manifested by the conflicting opinions in Commonwealth v. Deren, 233 Pa.Super. 373, 337 A.2d 600 (1975). There, the dissenting opinion, by SPAETH, J., joined by JACOBS, J., concluded that the record did not support the conclusion that the prosecution would be substantially handicapped. Id. at 383-89, 337 A.2d at 605-608. The majority opinion, however, by PRICE, J., held that

we must accept such an appeal as the Commonwealth's good faith certification

Page 498

that the case will be terminated or substantially prejudiced . . . .

To apply any other test could permanently exclude evidence even it was improperly suppressed.

Id. at 378, 337 A.2d at 602.

Upon reflection, however, and with a little pushing and pulling, these apparently irreconcilable tests may be reconciled.

In its opinion, the majority in Commonwealth v. Deren, supra, says this:

An appellate review of the validity of the order of suppression cannot harm the defendant whereas the denial of the right to such review does harm the Commonwealth.

[254 Pa.Super. 9] Id., 233 Pa.Super. at 377, 337 A.2d at 602 (emphasis added).

Thus, despite its statement about having to "accept . . . an appeal as (a) . . . good faith certification," the majority in Deren recognized the need for a factual finding, that is, for a finding that the suppression order "does harm" the prosecution. Indeed, this recognition was compelled by the principle that this court must always determine for itself that in fact it has jurisdiction to hear the case; jurisdiction may never be conferred by one, or both, of the parties, Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965), as would be the case were we to accept a bare allegation of substantial handicap, that is, a bare allegation that we had jurisdiction. ¹

The question, therefore, is: How is this court to make the factual finding that the suppression order "does harm" the Commonwealth? The majority opinion in Commonwealth v. DeFelice, supra, holds that we must be able to make the finding by reference to the record of the suppression hearing. The majority opinion in Commonwealth v. Deren, supra, may be read as saying that we may make the finding without reference to the record, and simply on the basis of the Commonwealth's bare allegation; it is not necessary, however, to read the opinion in this way.

An opinion, like any other statement, should always be read in light of the reason given in its support. In Commonwealth v. Deren, supra, the majority alluded to the danger that if we did not accept the Commonwealth's bare allegation, we might "permanently exclude evidence even if it was improperly suppressed." Id., 233 Pa.Super. at 378, 337 A.2d at 602. In fact, however, that danger can easily be avoided by a slight modification of the holding in Commonwealth v. DeFelice, supra.

[254 Pa.Super. 10] If, when the appeal is filed, the record already shows that the suppression will terminate or substantially handicap the prosecution, there is no problem; the appeal is proper. This will often be the case, as, for example, when the district attorney makes a statement of record, before the judge hearing the motion to suppress, that the Commonwealth's only evidence is the evidence that the defendant seeks to have suppressed. Or that fact may otherwise appear of record, as for example in the testimony of the arresting officer. In such circumstances the Commonwealth need only direct our attention to the record by appropriate references in its brief.

Cases that might seem more difficult are those in which the record before the hearing...