Com. v. McCabe
| Decision Date | 13 August 1982 |
| Citation | 303 Pa.Super. 245,449 A.2d 670 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Paul Richard McCABE. |
| Court | Pennsylvania Superior Court |
Samuel K. Gates, York, for appellee.
Before BROSKY, McEWEN and BECK, JJ.
The Commonwealth appeals an order of the Court of Common Pleas of Adams County which granted appellee's motion to suppress the testimony of a Commonwealth witness. The sole issue on appeal is whether the trial court properly suppressed the witness' testimony as to matters which came to the witness' consciousness through hypnosis. We affirm.
Appellee asserts that this Court lacks jurisdiction 1 over the instant case because the Commonwealth is attempting to appeal an interlocutory order, i.e., the order granting appellee's motion to suppress.
On December 31, 1980, the Commonwealth filed a notice of appeal pursuant to Pa.R.A.P. 902 which governs appeals "as of right from a lower court to an appellate court." Id. On January 6, 1981, under Pa.R.A.P. 1311, the Commonwealth also filed a petition for permission to appeal from an interlocutory order. Both the Commonwealth's notice of appeal and its petition for permission to appeal concerned the trial court's granting of appellee's suppression motion. Finally, on June 8, 1981, appellee filed a motion to quash the Commonwealth's appeal of the suppression order, arguing that the order was interlocutory and thus nonappealable.
Pursuant to Section 702(a)-(b) of the Judicial Code, 42 Pa.C.S. § 702(a)-(b), interlocutory orders are appealable only (a) as of right if enumerated in Pa.R.A.P. 311 or (b) by permission of the court in accordance with Pa.R.A.P. 312. However, Section 702(b) of the Judicial Code and Pa.R.A.P. 1311(b) provide that permission to appeal an interlocutory order may be sought only where the order states that "a controlling question of law [is involved] as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter ...." 42 Pa.C.S. § 702(b). Because in the present case the lower court's order did not include the required statement and because the Commonwealth filed a notice of appeal, this Court on June 16, 1981, denied the Commonwealth's petition for permission to appeal. Butler Education Association v. Butler Area School District, 34 Pa.Commw.Ct. 143, 382 A.2d 1283 (1978). Additionally, on July 21, 1981, this Court denied appellee's motion to quash, and the Commonwealth proceeded on its notice of appeal. "[I]t is settled that the Commonwealth may appeal from a pretrial suppression order if the question raised is a pure question of law and if the order effectively terminates or substantially handicaps the prosecution."
Commonwealth v. Pfender, 280 Pa.Super.Ct. 417, 421, 421 A.2d 791, 793 (1980).
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 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 .... In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations.
Commonwealth v. Bosurgi, 411 Pa. 56, 63-64, 190 A.2d 304, 308 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (emphasis in original) (quoted approvingly in Commonwealth v. Nastari, 232 Pa.Super.Ct. 405, 408 n.1, 335 A.2d 468, 469-70 n.1 (1975), allocatur denied, May 22, 1975); Commonwealth v. Nazarovitch, 496 Pa. 97, n.1, 436 A.2d 170, 172 n.1 (1981).
To appeal a suppression order, "the Commonwealth must include in its brief, in support of its claim that this court has jurisdiction to hear the appeal, first, a statement that the suppression will terminate or substantially handicap the prosecution; and second, a brief explanation, not inconsistent with the record, why this is so." Commonwealth v. Kunkel, 254 Pa.Super.Ct. 5, 10, 385 A.2d 496, 499 (1978). Here, the Commonwealth comported with Kunkel by including the following statement in its brief:
As the trial court noted in its opinion of January 27, 1981, the Order decided law novel to Pennsylvania and effectively terminated the Commonwealth's ability to prosecute. The hypnotically induced testimony which was suppressed was the only evidence which implicated Paul Richard McCabe in the deaths of Nancy and Debbie Patterson or the related charges.
(Emphasis in Commonwealth's brief.)
Being awakened by noise during the early hours of August 30, 1980, the witness, a sixteen-year-old girl, discovered that her home was afire and fled. During the next hour, the witness' mother and older sister were fatally shot in the front yard of the witness' home; Paul Sells, a member of the witness' household, was injured, and only the witness and her nine-year-old brother escaped harm.
On August 30, 1980, Paul Sells was able to identify his assailant as Keith, the witness' brother who lived in a residence with appellee. Consequently, the police arrested not only Keith but also appellee, Keith's only known associate. However, appellee was released the same day for lack of evidence, and his release was reported in several news articles read by, or made known to, the witness.
The police attempted to question the witness the day after the fatal incident but found the witness too distraught. The witness' statement was finally taken at a state police barracks on September 1, 1980. The witness reported that upon being awakened early on August 30, 1980, by the sound of a smoke alarm and breaking glass, she found her home afire. She quickly exited her home through the kitchen door and saw that a man with a shot gun was standing on the back porch of her home. The witness did not identify the man with the gun but described him as having wavy brown hair parted on the side of his head. The witness stated that after leaving her home she ran to a shed and hid. While hidden, the witness heard gun shots and the sound of someone running whereupon she moved to the front yard of her home. At this point the witness discovered Paul Sells who was To obtain more information from the witness, the police requested the aid of a hypnotist, Father James Delaney, an assistant professor of psychology at Mount St. Mary's College in Maryland. Through hypnosis Father Delaney had assisted law enforcement officials of various jurisdictions on eighteen previous occasions. In approximately 1966 Father Delaney had received some training in hypnosis at Duquesne University and in 1977 had taken a four-day training course in investigative hypnosis offered by the Los Angeles Police Department. Moreover, he regularly practiced hypnosis in diverse contexts and regularly read literature published by the Society for Investigative and Forensic Hypnotists, a group composed of individuals who attended the Los Angeles Police Department course.
wounded and lying on the ground. Mr. Sells told the witness to seek a neighbor's assistance, and the witness complied. The witness did not supply additional details of the crime or identify a possible perpetrator.
When contacted by the police, Father Delaney knew nothing about the case and, by design, remained uninformed. Father Delaney agreed to the hypnotic interview, and on September 4, 1980, the witness was accompanied to Mount St. Mary's College by two state troopers who explained to the witness that she would be hypnotized for the purpose of gaining additional information from her about the crime.
Before hypnotizing the witness, Father Delaney attempted to ease the witness' apprehensions by demonstrating his hypnotic technique on another subject. This subject was subsequently dismissed, and only Father Delaney and the two state troopers remained with the witness. Then Father Delaney hypnotized the witness, told her to use her imagination, and stated that he would let a trooper question her. Although a trooper conducted the actual, taped interview, Father Delaney interpolated praise whenever the witness produced identifications and also repeated or rephrased several of the witness' responses.
Under hypnosis the witness again stated that she had seen a man on the porch of her home. Pressed to name the man, the witness answered, "Keith." Later asked again to identify the man on the porch, the witness responded, "[I]t's my brother." Thereafter, the trooper questioning the witness constantly referred to the man on the porch as Keith.
Additionally, while hypnotized, the witness indicated the presence of a second perpetrator, "another man." Asked to describe the second man and his location during the incident, the witness faltered. Father Delaney then prompted the witness by saying, After the witness had identified the other man as "McCabe," the trooper and the witness had the following suggestive exchange:
Trooper: "You saw two shots from the back door at Paul [Sells] toward the front door?"
Witness: "Didn't see--heard."
Trooper: "You heard?"
Witness: "Me and Keith."
Trooper: "You seen [sic] Keith and you seen [sic] Paul...
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