Commonwealth v. Lapia

Decision Date04 February 1983
Citation457 A.2d 877,311 Pa.Super. 264
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Donna M. LAPIA, a/k/a Jan Marks. COMMONWEALTH of Pennsylvania, Appellant, v. Billy G. DUGGER.
CourtPennsylvania Superior Court

Argued June 24, 1982.

Reargument Denied April 12, 1983. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Robert L. Eberhardt, Deputy Dist. Atty Pittsburgh for Commonwealth, appellant (at No. 1043).

Lee Ruslander, Asst. Dist. Atty., West Chester, for Commonwealth, appellant (at No. 2696).

Norma Chase, Pittsburgh, for Lapia, appellee (at No. 1043).

Andrew Stuart Wade, West Chester, for Dugger, appellee (at No. 2696).

Before CERCONE, President Judge, and SPAETH, CAVANAUGH, WIEAND, McEWEN, CIRILLO and MONTEMURO, JJ.

SPAETH, Judge:

This case arises on two appeals, each by the Commonwealth from an order suppressing evidence. We ordered the appeals consolidated because they both involve the issue of when an order suppressing evidence is appealable.

In Part I of this opinion we conclude that an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution. This conclusion involves overruling Commonwealth v Martz, 259 Pa.Superior Ct. 201, 393 A.2d 787 (1978), and Commonwealth v. Kunkel, 254 Pa.Superior Ct. 5, 385 A.2d 496 (1978) (plurality opinion), where we held that an order suppressing evidence is not appealable if the Commonwealth fails to state in its brief that the order terminates or substantially handicaps the prosecution, with a brief explanation, which may go outside of but must not be inconsistent with the record, of why that is so. It also involves overruling Commonwealth v. Trefry, 249 Pa.Superior Ct. 117, 375 A.2d 786 (1977), and Commonwealth v. Deren, 233 Pa.Superior Ct. 373, 337 A.2d 600 (1975), where we held that "we must accept" an appeal from an order suppressing evidence "as the Commonwealth's good faith certification" that the prosecution will be terminated or substantially handicapped. [1]

In the course of our discussion we recognize that sometimes an order suppressing evidence may in fact substantially handicap the prosecution but that fact will not be apparent from the record. We have concluded, however, that in such a case the order suppressing evidence is not appealable, and cannot be made appealable by any statement by the Commonwealth. If such an order is to be appealable, it must be made appealable by Supreme Court rule. Judge CAVANAUGH, in an opinion joined by Judge MONTEMURO, concurs in this conclusion. Judge McEWEN and Judge CIRILLO, for the reasons stated in their respective opinions, would not overrule Trefry and Deren.

In Part II of this opinion we apply to the two orders before us the conclusions reached in Part I, and find that it is apparent from the record that both orders would terminate the prosecution. We therefore hold the orders appealable, and consider them on their merits. Again we are variously divided. In Commonwealth v. Lapia, we all agree that the evidence was properly suppressed and that the order of the lower court should therefore be affirmed. The reasoning of the majority of the court is stated in this opinion. Judge WIEAND and Judge CIRILLO concur in the result. In Commonwealth v. Dugger, we are obliged to interpret the Act of May 11, 1911, P.L. 274 § 4, 61 P.S. § 384. In this opinion the view is expressed, first, that under the Act, prison officials may, in a manner appropriate to the particular circumstances, search a person who wishes to visit the prison, if the officials act on the basis of reasonable suspicion, and if the visitor, after being advised that he may leave without making his visit, voluntarily consents to the search; and second, that on the record here, the Commonwealth failed to prove either reasonable suspicion or voluntary consent. The President Judge joins in this opinion. Concurring, Judge CAVANAUGH, in an opinion joined by Judge MONTEMURO, would hold that the Commonwealth did prove reasonable suspicion, but that where, as here, the search was a strip search, voluntary consent to the search must also be proved and that it was not. Thus, the President Judge, Judge CAVANAUGH and Judge MONTEMURO, and I agree that the search was illegal and, therefore, that the evidence was properly suppressed and the order of the lower court should be affirmed. Judge WIEAND, in an opinion joined by Judge McEWEN and Judge CIRILLO, would hold that the Commonwealth did prove reasonable suspicion and consent. They would therefore uphold the search and reverse the order of the lower court.

I

In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963), the Supreme Court held that when an order suppressing evidence terminates or substantially handicaps the prosecution, the order is immediately appealable by the Commonwealth. This is so because in practical effect, the order is final. If the Commonwealth were required to go to trial without the suppressed evidence, the defendant would probably, if not certainly, be acquitted. Since the Commonwealth may not appeal an acquittal, it would never have had an opportunity to secure appellate review of the order.

In Bosurgi the court did not address the question of how an appellate court is to determine whether an order suppressing evidence does in fact terminate or substantially handicap the prosecution. In Commonwealth v. Martz, 259 Pa.Superior Ct. 201, 393 A.2d 787 (1978), this court specified a procedure that it hoped would enable it to make that determination, and thereby decide whether an order is appealable. The procedure had been proposed by the plurality opinion in Commonwealth v. Kunkel, 254 Pa.Superior Ct. 5, 385 A.2d 496 (1978). It was that an order suppressing evidence is not appealable if the Commonwealth fails to state in its brief that the order terminates or substantially handicaps the prosecution, with a brief explanation, which may go outside of but must not be inconsistent with the record, of why that is so.

It is undisputed that in the two cases before us, the Commonwealth failed to comply with the procedure established by Kunkel and Martz. In the first case, Commonwealth v. Lapia, No. 1043 April Term 1978, a panel of this court filed an opinion and order on March 12, 1982, quashing the Commonwealth's appeal because of that failure. We granted the Commonwealth's petition for reargument before the court en banc. We also sua sponte ordered reargument in the second case, Commonwealth v. Dugger, No. 2696 Philadelphia 1980, which had been argued before another panel but had not yet been decided. We then ordered the cases to be reargued together and instructed counsel that we wished to reconsider the procedures established by Kunkel and Martz.

A

We may start our discussion by reviewing the decisions that led to Kunkel and Martz.

This court's first citation of Bosurgi in connection with a Commonwealth appeal from an order suppressing evidence was in Commonwealth v. Smyser, 205 Pa.Superior Ct. 599, 211 A.2d 59 (1965). There we said simply, "Such an appeal is properly made at this time: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304." Id. at 601, 211 A.2d at 61. Our next case was Commonwealth v. Rose, 211 Pa.Superior Ct. 295, 235 A.2d 462 (1967). There we said: "The Commonwealth has appealed. Since appellee has not filed a motion to quash, we will assume that the suppression order will substantially handicap the Commonwealth and hear the appeal." Id. at 296, 235 A.2d at 463. The next year we decided Commonwealth v. Smith, 212 Pa.Superior Ct 403, 244 A.2d 787 (1968). There, without reference to whether a motion to quash had or had not been filed, we quashed the appeal because we determined from the record that despite the suppression order, the Commonwealth still had enough evidence so as not to be substantially handicapped.

In these cases, as well as in others, e.g., Commonwealth v. Payton, 212 Pa.Superior Ct. 254, 243 A.2d 202 (1968); Commonwealth v. Hernley, 216 Pa.Superior Ct. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), there was no indication of any disagreement, either about the propriety of the appeals, or about how that propriety was to be determined.

This harmony did not continue. In Commonwealth v. Thorne, 223 Pa.Superior Ct. 122, 299 A.2d 370 (1972), four judges held that an appeal should be quashed because the Commonwealth had admitted at oral argument that it was not substantially handicapped by the suppression order, and that admission was supported by the record. The three dissenting judges refused to rely on a memory of what had been said at oral argument; in their opinion, in the absence of a motion to quash, a Commonwealth appeal should be heard unless the record affirmatively showed the availability to the Commonwealth of other evidence. The division within the court became more sharply stated in Commonwealth v Deren, 233 Pa.Superior Ct. 373, 337 A.2d 600 (1975). There four judges said, "[W]hen the District Attorney from one of the counties of this Commonwealth directs an appeal from the suppression of evidence, we must accept such an appeal as the Commonwealth's good faith certification that the case will be terminated or substantially prejudiced by such an order, and [we should] determine only if the suppression was proper." Id. at 376-377, 337 A.2d at 602. The two dissenting judges refused to accept this formulation and, applying the approach first taken in Commonwealth v. Smith, supra; see also Commonwealth v. Kloch, 230 Pa.Superior Ct. 563, 327 A.2d 375 (1974), said that they would find from the record that the Commonwealth was not substantially...

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2 cases
  • Com. v. Lapia
    • United States
    • Pennsylvania Superior Court
    • April 12, 1983
    ... Page 877 ... 457 A.2d 877 ... 311 Pa.Super. 264 ... COMMONWEALTH" of Pennsylvania, Appellant, ... Donna M. LAPIA, a/k/a Jan Marks ... COMMONWEALTH of Pennsylvania, Appellant, ... Billy G. DUGGER ... Superior Court of Pennsylvania ... Argued June 24, 1982 ... Filed Feb. 4, 1983 ... Reargument Denied April 12, 1983 ... Page 880 ...        \xC2" ... ...
  • Com. v. Giaccio
    • United States
    • Pennsylvania Superior Court
    • April 18, 1983
    ...457 A.2d 875 ... 311 Pa.Super. 259 ... COMMONWEALTH of Pennsylvania ... Jay GIACCIO, Appellant ... Superior Court of Pennsylvania ... Argued Dec. 5, 1979 ... Filed Feb. 4, 1983 ... Reargument ... ...

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