Com. v. Malinowski

• Decision Date: 22 February 1996
• Citation: 671 A.2d 674,543 Pa. 350
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Lawrence J. MALINOWSKI, Appellant.
• Court: Pennsylvania Supreme Court

Page 674

671 A.2d 674

543 Pa. 350

COMMONWEALTH of Pennsylvania, Appellee, v. Lawrence J. MALINOWSKI, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 20, 1995.

Decided Feb. 22, 1996.

[543 Pa. 352] Jack F. Conflenti, Pittsburgh, for L. Malinowski.

Claire C. Capristo, Kemal Alexander Mericli, Pittsburgh, for Commonwealth.

Before NIX, C.J., and FLAHERTY, ZAPPALA, CAPPY, CASTILLE, NIGRO and NEWMAN, JJ.

OPINION

NIX, Chief Justice.

Appellant, Lawrence J. Malinowski, appeals from the Order of the Superior Court which reversed the Court of Common Pleas of Allegheny County which granted Appellant's motion to dismiss for a violation of Rule 1100 of the Pennsylvania Rules of Criminal Procedure.

On March 17, 1991, Appellant was stopped by police officers for erratic driving. The officers suspected that Appellant was under the influence of alcohol and requested that he submit to a breathalyzer test. Appellant acquiesced and was tested on a machine purportedly calibrated and maintained in accordance with regulations promulgated by the Pennsylvania Departments of Health and Transportation. The results of his breathalyzer test indicated that Appellant had a blood alcohol content of .24%. Consequently, Appellant was charged with driving under the influence to a degree which renders a person incapable of safe driving ¹ and driving while the amount of alcohol by weight in the blood of a person is .10% or greater. ²

Appellant filed a motion to suppress the results of the breathalyzer test as a result of information learned through the discovery process. Specifically, Appellant discovered that on January 11, 1991, another individual had been tested on the same machine and that the results from his two consecutive tests deviated from one another by .02% or greater in violation of 67 Pa.Code § 77.24(b)(2)(i). ³ Instead of taking the machine out of service, as required by 67 Pa.Code § 77.24(c), ⁴ the machine remained in service and was recalibrated on January 29, 1991, during its annual inspection.

The trial court granted Appellant's motion to suppress, finding that the Commonwealth had failed to remove the machine from service or, in the alternative, failed to satisfy its burden of explaining how the deviation occurred. Commonwealth v. Malinowski, No. 91-4691, slip op. at 10 (C.P. Allegheny County Mar. 5, 1993). In response to the court's ruling, the Commonwealth filed a notice of appeal to the Superior Court, but at some point prior to the deadline for filing briefs, the Commonwealth withdrew its appeal and attempted to proceed with its case. Commonwealth v. Malinowski, 439 Pa.Super. 670, 653 A.2d 1302 (Pa.Super.1994). At no time, however, did the Commonwealth ever certify that the suppression order effectively terminated or substantially handicapped its prosecution pursuant to this Court's pronouncement in Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

Subsequently, Appellant filed a motion to dismiss alleging that the Commonwealth had failed to bring him to trial within the time period mandated by Rule 1100. ⁵ Notwithstanding the Commonwealth's filing of a notice of appeal from the suppression order, Appellant argued that the Commonwealth's failure to comply with the Dugger certification rendered the Commonwealth's appeal a nullity because the Commonwealth did not have a right to appeal absent the proper certification. As such, the Commonwealth was not entitled to exclude the time period encompassed by the appeal from the computation of Appellant's right to a prompt trial under Rule 1100.

The Commonwealth opposed the dismissal of the charges. It claimed that it had not violated Rule 1100 because it had filed a notice of appeal of the trial court's suppression order. Such a filing, the Commonwealth contended, tolls the running of Rule 1100 because it divests jurisdiction from the trial court.

The trial court agreed with Appellant and concluded that the Commonwealth failed to properly certify the appeal from its suppression ruling. Commonwealth v. Malinowski, No. 91-4691, slip op. at 3 (C.P. Allegheny County Feb. 7, 1994). As such, the trial court refused to exclude that time in calculating Appellant's Rule 1100 motion. Id. at 13. In addition, the trial court found that the Commonwealth attempted to delay the case by filing the notice of appeal in the first place. Id. The trial court dismissed the charges because it determined that the time period encompassed by the Commonwealth's appeal was not excludable, that the Commonwealth attempted to delay the case, and that Appellant was not brought to trial within the time frame provided in Rule 1100. ⁶ Id.

On appeal, the Superior Court reversed concluding that the trial court erred in finding that no appeal had been perfected by the Commonwealth because it failed to comply with the certification requirements. Commonwealth v. Malinowski, 439 Pa.Super. 670, 653 A.2d 1302 (Pa.Super., 1994). The Superior Court held that

[b]ecause the Rules of Appellate Procedure make it clear that the filing of a notice of appeal perfects that appeal, the appeal was valid at that point, and the time period between filing the notice of appeal and when the Commonwealth discontinued its appeal is excludable time under Pa.R.Crim.P. 1100.

Id. at 3 (citation omitted). Because the Superior Court determined that the time should have been excluded, the court presumably found it unnecessary to consider the trial court's finding that the Commonwealth attempted to delay this case.

The first issue that this Court must address is whether the Commonwealth's failure to include a Dugger certification in its appeal of the suppression order tolls the running of Rule 1100. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), this Court held that "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." Id. at 546-47, 486 A.2d at 386.

Appellant contends that the failure of the Commonwealth to comply with Dugger renders an otherwise proper appeal invalid. As such, Appellant argues that an invalid appeal cannot toll the running of Rule 1100. The Commonwealth, on the other hand, maintains that notwithstanding its failure to file a formal Dugger certification with its notice of appeal, the mere act of filing the notice of appeal is all that is required to toll the running of Rule 1100.

The Commonwealth premises its argument on Rule 902 of the Pennsylvania Rules of Appellate Procedure, which provides An appeal permitted by law as of right from a lower court to an appellate court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 903 (time for appeal). Failure of appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken.

Pa.R.A.P. 902. Moreover, the Commonwealth cites the note following Rule 902 to buttress its position that it need only file the notice of appeal to toll the running of Rule 1100. The pertinent part of the note reads that "the new procedure necessarily eliminates the 'trap' of failure to perfect an appeal, since the notice of appeal is self-perfecting...." Pa.R.A.P. 902 note 4.

We find that the Commonwealth's reliance on Rule 902 and its accompanying note in this case is misplaced because Rule 902 only addresses appeals as a matter of right. The Commonwealth filed its notice of appeal pursuant to RULE 341(C) OF THE PENNSYLVANIA RULES OF APPELLATE PROCEDURE⁷, which provides that for criminal orders "[a]n Appeal may be taken by the Commonwealth from any final order in a criminal matter only in the circumstances provided by law." Pa.R.A.P. 341(c) (emphasis added). This Court has interpreted "circumstances provided by law" to mean that "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." Commonwealth v. Dugger, 506 Pa. 537, 546-47, 486 A.2d 382, 386 (1985) (emphasis added).

Thus, while it is true that an appeal by the Commonwealth of a suppression court ruling is appealable as a matter of right, it is so only if the Commonwealth certifies that the ruling terminates or substantially handicaps the prosecution. We have not required the Commonwealth to prove that burden; rather, we have held that it is the certification that precipitates and authorizes the appeal. Id. at 547, 486 A.2d at 386. Without the certification, the Commonwealth has no right to appeal. Without a right to appeal, it must be said that the Commonwealth failed to exercise due diligence by filing the appeal.

Accordingly, we hold that the failure to comply with the Dugger certification renders the suppression order unappealable. To interpret Rule 902 in this case to mean that the Commonwealth need not certify that the suppression order terminates or substantially handicaps the prosecution would render this Court's holding in Dugger a nullity. This we will not do. Thus, we require that in addition to the requirements laid out in Rule 904 of the Pennsylvania Rules of Appellate Procedure, the Commonwealth, when appealing a suppression order, must include a statement, made in good faith, that the suppression order terminates or substantially handicaps its prosecution. ⁸ "Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay." Dugger at 547, 486 A.2d at 386.

Next we must address the propriety of the trial court's dismissal of charges under Rule 1100. ⁹ Rule 1100(g) directs the trial court to...