Commonwealth v. Bosurgi

• Decision Date: 16 April 1963
• Citation: 411 Pa. 56,190 A.2d 304
• Parties: COMMONWEALTH of Pennsylvania v. Frank BOSURGI, Appellant.
• Court: Pennsylvania Supreme Court

190 A.2d 304

411 Pa. 56

COMMONWEALTH of Pennsylvania v. Frank BOSURGI, Appellant.

Supreme Court of Pennsylvania.

April 16, 1963.

John Patrick Walsh, Philadelphia, for appellant.

Arlen Specter, Asst. Dist. Atty., Philadelphia, Charles Jay Bogdanoff, Asst. Dist Atty., Louis F. McCabe, Asst. Dist. Atty F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN and O'BRIEN, JJ.

JONES, Justice.

The first 'search and seizure' question to reach this Court since the decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, is presented upon this appeal.

On July 10, 1961, ^[1] at approximately 10:30 p. m., a burglary occurred at a whole-sale jewelry store in Philadelphia in the course of which some watches and jewelry were stolen. The police were notified and they entered upon an investigation of the store and its immediate neighborhood, meanwhile requesting persons in that area to report to detective headquarters any person seen 'with watches'. On July 11, 1961, about 6:00 p. m., a telephone call from an undisclosed source ^[2] was received at detective headquarters and referred to Detective Kelly, an officer investigating the burglary. The caller informed Detective Kelly that there was a man--described as having bushy grey hair, needing a shave, short in statute, Italian in appearance, and attired in tweed pants and a striped shirt--in a certain taproom, located in the vicinity of the burglarized store, who was 'attempting to sell watches' to the taproom customers.

Immediately pursuant to this call, Detective Kelly, with a Detective Sabarro, visited the described taproom but found no one there who answered the description of the person referred to in the telephone call. However, in a nearby taproom, located across the street from the burglarized store, the detectives found a man named Frank Bosurgi who fully answered the description. Bosurgi, seated at a table, was directed to stand up and Detective Kelly 'turned the man around', 'patted him down from the back', and, when he reached the trousers' pockets, 'felt objects there, bulky objects' which felt like watches. From Bosurgi's trousers' pockets Detective Kelly removed ten watches, eight of which were later identified as part of the stock taken from the burglarized store.

While removing the watches from the trousers' pockets, Detective Kelly noticed 'particles in there, pieces of bits of glass, little pieces of ringlets, possibly from a bracelet.' ^[3] Bosurgi was immediately taken to police headquarters where he was requested to and did remove his trousers; the trousers were vacuumed and glass particles, similar to those previously obtained, were found therein.

It is an undisputed fact that the detectives had no warrant either to arrest or search the person of Bosurgi.

Given a hearing before a magistrate, Bosurgi was held over on charges of burglary, larceny and receiving stolen goods and later was indicted on these charges. Sometime thereafter and prior to trial, Bosurgi's counsel moved to suppress the watches and glass particles as evidence alleging they had been obtained as the result of a search and seizure unlawful under the United States and Pennsylvania Constitutions.

After a hearing in the Court of Quarter Sessions of Philadelphia County before the Honorable Bernard J. Kelley, that court granted the motion to suppress the evidence; from that order, the Commonwealth appealed to the Superior Court which reversed the order of the Court of Quarter Sessions. ^[4] We granted an allocatur.

Two principal questions are raised: (1) the right of the Commonwealth to appeal from the pretrial order suppressing the evidence and (2) the legality of the search of Bosurgi and the seizure of this evidence.

Initially, we determine whether the Commonwealth has the right of appeal from this order. Parenthetically, it may be noted that, without the suppressed evidence, the Commonwealth has no other evidence against Bosurgi and, if the suppression order is upheld, the prosecution of Bosurgi will necessarily terminate.

The position of federal courts as to the right of the Government to appeal from a pretrial order directing the suppression of evidence obtained, allegedly, as the result of an illegal search and seizure is now clear. Appealability from orders entered on post-indictment motions was denied to the Government in Carroll v. United States, 354 U.S. 394, 395, 77 S.Ct. 1332, 1 L.Ed.2d 1442 and to the defendant in Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275. Very recently, in Di Bella v. United States, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614 the Court held that the Government had no right of appeal from a preindictment order of suppression. ^[5] However, in our view, the position of the federal courts is not binding upon us. In Mapp, supra, the Court stated: 'As is always the case, however, state procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected.' (367 U.S. Note 9, p. 659, 81 S.Ct. p. 1693). 'The Constitution commands the States to assure fair judgment. Procedural details for securing fairness it leaves to the States': Carter v. Illinois, 329 U.S. 173, 175, 67 S.Ct. 216, 218, 91 L.Ed. 172. The right of appeal in the state judicial system is a matter of procedure the determination of which, both in civil and criminal cases, is peculiarly within the province of the state, not the federal, courts.

We have held, consistently, that the Commonwealth may appeal, in certain areas, from an adverse ruling in a criminal case where the question involved is purely one of law but cannot appeal where the reason for the adverse ruling is an admixture of law and fact: Commonwealth v. Melton, 402 Pa. 628, 629, 630, 168 A.2d 328 and cases therein cited. On the present appeal this requirement is satisfied.

On occasion, the Superior Court has considered, in slightly different posture, the Commonwealth's right of appeal from pretrial orders in criminal cases. In Commonwealth v. Montanero, 173 Pa.Super. 133, 96 A.2d 178, the court below entered the following order: 'Accordingly, the petition to quash the search warrant is granted and the papers seized thereunder are suppressed as evidence and ordered returned to the defendant,' [emphasis supplied]; the Commonwealth intending to introduce at the trial secondary evidence of the papers' contents and apprehensive that such evidence, in view of the suppression order, might not be received, appealed and the Court held that the order was of such definitive nature as to be appealable. In Commonwealth v. Rich, 174 Pa.Super. 174, 177, 178, 100 A.2d 144, 147, the Court the '* * * an order requiring officers to return seized property terminates the prosecution and is therefore a final judgment, from which the Commonwealth may appeal.' In Commonwealth v. Bruno, 176 Pa.Super. 115, 117, 106 A.2d 905, where the court below quashed a search warrant and directed the return of papers and other evidence seized thereunder, the Court, relying on Rich, supra, and Commonwealth v. Loesel et al., 155 Pa.Super. 461, 38 A.2d 523, refused to quash a Commonwealth appeal, apparently, on the ground that the order requiring the return of the seized property was definitive in nature. Very recently in Commonwealth v. Richards, 198 Pa.Super. 39, 42, 182 A.2d 291, 293, President Judge Rhodes, speaking for the Court, stated: 'Where the order suppressing evidence as having been obtained by illegal search and seizure in effect terminates the prosecution, it is definitive and appealable to the Commonwealth. * * *' The rationale of these decisions is that the Commonwealth should possess the right of an appellate review of the validity of a pretrial order of suppression where the effect of such order is to terminate the prosecution.

In the wake of Mapp new impetus has been given to the practice of filing by defendants of motions to suppress evidence seized in allegedly illegal searches. In this Commonwealth, such motions, save in exceptional circumstances, are now required to be made in advance of trial. ^[6] Under the circumstances, it is imperative that this Court clarify the right of appeal from pretrial orders made in connection with such motions, whether the motions are made preindictment or post-indictment or whether the Commonwealth desires to appeal from the grant of a suppression order or the defendant desires to appeal from the denial of a suppression order.

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 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. 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...