Commonwealth v. Martz

• Citation: 259 Pa.Super. 201,393 A.2d 787
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Ralph A. MARTZ, Appellee.
• Decision Date: 20 October 1978
• Court: Superior Court of Pennsylvania

393 A.2d 787

259 Pa.Super. 201

COMMONWEALTH of Pennsylvania, Appellant, v. Ralph A. MARTZ, Appellee.

Superior Court of Pennsylvania.

October 20, 1978

Submitted Dec. 6, 1977.

Charles M. Guthrie, Jr., Asst. Dist. Atty Reading, for Com., appellant.

Lynn Erickson Stock, Reading, for appellee.

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

SPAETH Judge: ^[1]

Appellant was charged with criminal mischief. The lower court granted his motion to suppress certain evidence 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 pretrial suppression order if the question raised by the order is a pure question of law, and if the order effectively terminates or substantially handicaps the prosecution, Commonwealth v. DeFlice, 248 Pa.Super. 516, 521, 375 A.2d 360, 363 (1977) (cases cited therein).

In Commonwealth v. Kunkel, 254 Pa.Super. 5, 385 A.2d 496, 499, a plurality of this court held that in order to show that this court has jurisdiction to hear the appeal

the Commonwealth must include in its brief . . . 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.

Id. at ---, 385 A.2d at 499.

Since the Commonwealth's brief in Kunkel did not contain "even a bare, or conclusory, allegation . . . that the suppression will terminate or substantially handicap the prosecution", Id. at ---, 385 A.2d at 499, we deferred decision to allow the Commonwealth the opportunity to file a supplemental brief containing a statement and explanation as required by our holding.

Similarly, here, the Commonwealth's brief contains no such statement and explanation. However, since the Commonwealth's appeal was taken before our decision in Kunkel, it would be unfair to penalize the Commonwealth for failing to comply with Kunkel's requirements. ^[2] Cf. Commonwealth v. Harrsch, 245 Pa.Super. 411, 369 A.2d 470 (1976) (appellant given leave to file petition to withdraw guilty plea with lower court where appeal filed before decision requiring this procedure). Therefore, we shall defer decision to allow the Commonwealth an opportunity to file within thirty days a supplemental brief stating whether the suppression will terminate or substantially handicap the prosecution, and if so, briefly explaining why.

So ordered.

PRICE and VAN der VOORT, JJ., dissent.

WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.

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Notes:

^[1] The plurality opinion, by this writer, was joined by Judge CERCONE, President Judge JACOBS concurring in the...