M.M., In Interest of

• Citation: 653 A.2d 1271,439 Pa.Super. 307
• Parties: In the INTEREST OF M.M. Appeal of M.M.
• Decision Date: 02 February 1995
• Court: Superior Court of Pennsylvania

Page 1271

653 A.2d 1271

439 Pa.Super. 307

In the INTEREST OF M.M.

Appeal of M.M.

Superior Court of Pennsylvania.

Argued Sept. 30, 1994.

Filed Feb. 2, 1995.

David Zuckerman, Asst. Public Defender, Philadelphia, for appellant.

Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., participating party.

Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, BECK, KELLY and POPOVICH, JJ.

CIRILLO, Judge:

Appellant M.M., ¹ a juvenile, appeals from an order of the Court of Common Pleas of Philadelphia County adjudicating him delinquent and placing him on intensive drug and alcohol probation, pending further review before the juvenile court in sixty days. We affirm.

On September 6, 1992, at approximately 1:20 a.m., off-duty police officer Juan Perez was a passenger in a friend's car travelling in the vicinity of Whitaker and Wyoming Avenues in Philadelphia. As the officer and his friend stopped at a traffic light at the intersection, Officer Perez observed a "dark Hispanic" male standing on the southeast corner looking around in all directions as if he were a lookout. Alerted by this behavior, Officer Perez, who was in plain clothes, decided to investigate, and directed the driver to circle the block. When Officer Perez returned to the same corner, he noticed that the same "Hispanic" male had joined M.M. and another white male in the alleyway beside Roskow's Bar and Tavern on the southeast corner. At that time, Officer Perez observed M.M. standing on top of a steel gate, using a pair of large bolt cutters to break the lock on the gate leading to the basement of the tavern. Officer Perez then circled the block for a third time in an attempt to locate a marked police unit so as to advise them of the situation. Upon returning to the corner for a third time, the males realized that they were being watched and went to the rear of the alley, where they attempted to gain entrance to the the rear door of the tavern.

At that point, Officer Perez spotted a marked radio patrol car pulling up to the intersection. As Officer Perez got out of his car and advised the uniformed officers of the situation, the three males, including M.M., observed the police officers' presence and began to run. Officer Perez immediately chased after these three males, identified himself as a police officer, and ordered the three suspected burglars to stop. They ignored him and, instead, entered a blue 1978 Chevrolet Impala which was parked nearby with a driver waiting in the driver's seat.

Officer Perez reached the car before it sped away and attempted to prevent the car from driving off. With his gun in his right hand, he reached into the open driver's side window with his left arm and attempted to turn off the ignition. Although Officer Perez had identified himself to the driver as a police officer, the driver put the car in gear and sped off with Officer Perez still holding on to the car door. As Officer Perez was holding on to the door, the driver crashed the car into two parked cars in an attempt to remove the officer from the vehicle. Fearing for his life, Officer Perez released his grip and fell to the ground.

The uniformed officers, who had been following the chase in their marked patrol car, continued the pursuit and followed the blue Chevrolet eastbound on Wyoming Street. They were joined by Officer Broadbent and his partner in their patrol car. Officer Broadbent witnessed the blue Chevrolet stop at H and Wyoming Streets, where four males exited the vehicle. Three of the males ran into a wooded area and the fourth ran along the street. Officer Broadbent chased this fourth male, apprehended him, and returned him to the scene where he was identified by Officer Perez.

In the meantime, Officer Perez had returned to the tavern, where he recovered the bolt cutters used by M.M. and discovered that the lock on the steel gate leading to the tavern's basement actually had been cut. Within five minutes, a police wagon returned to the tavern with M.M. Officer Perez immediately identified M.M. as the burglar he had just witnessed trying to break into the tavern with the pair of bolt cutters.

Following these events, M.M. was charged with attempted burglary, criminal conspiracy, aggravated assault, simple assault, possession of an instrument of crime, recklessly endangering another person, and resisting arrest. An adjudicatory hearing was held on November 18-20, 1992, before the Honorable Sheldon C. Jelin. Following a finding that M.M. had committed the acts of attempted burglary, criminal conspiracy, and possession of an instrument of crime, Judge Jelin adjudicated M.M. delinquent. By order dated November 20, 1992, Judge Jelin placed M.M. on intensive drug and alcohol probation and scheduled a review for two months later. M.M. filed a notice of appeal from the adjudication and placement on probation.

On appeal, M.M. claims that Judge Jelin erred in refusing to permit M.M. to ask Officer Perez on cross-examination certain questions in order to support the defense of misidentification. Specifically, Judge Jelin refused to permit M.M. to ask Perez whether he had anything to drink that evening or if he had been to any bars.

Before addressing the merits of M.M.'s appeal, we find it necessary to distinguish the order in this case from that involved in a previous decision of this court, namely, In the Interest of K.B., 432 Pa.Super. 586, 639 A.2d 798 (1994). As a general rule, this court only has jurisdiction over appeals from final orders, unless we are otherwise empowered by statute or rule of court. Grove North America v. Arrow Lift, 421 Pa.Super. 12, 17, 617 A.2d 369, 371 (1992); see Pa.R.A.P. 341. In order to determine what constitutes a final and appealable order, we must look beyond the technical effect of the order to its practical ramifications. Grove North America, 421 Pa.Super. at 17, 617 A.2d at 372. The order presently before this court is a final order and it is, therefore, appealable.

In this case, Judge Jelin adjudged M.M. delinquent and placed him on an intensive drug and alcohol probation, pending a review in sixty days. What makes this order a "final" order is the fact that Judge Jelin placed M.M. on probation. This is to be distinguished from this court's decision in K.B. In K.B., this court addressed an order deceptively similar to the order presently before this court. There, we held that such an order was interlocutory and not appealable. K.B. involved a juvenile who was adjudicated delinquent by the Court of Common Pleas of Philadelphia County. The judge placed K.B. on temporary intensive drug and alcohol probation, pending a review in sixty days. K.B. appealed and claimed that the judge erred in denying his motion to suppress. This court quashed the appeal as interlocutory. We held that:

[the] issuance of intensive drug and alcohol probation with a further hearing in 60 days is not a final, appealable order. It does not terminate the litigation and put K.B. out of court; on the contrary, it simply delays the final disposition so that [the judge] can more properly determine whether K.B. has returned to school, stopped his illicit gambling activities, and refrained from taking drugs.

Id., 432 Pa.Super. at 589-90, 639 A.2d at 800.

Although the order presently before this court and the order in K.B. appear to be similar, they are critically different, albeit in an inconspicuous manner. The order in K.B. is unlike the present order in that it placed K.B. on temporary intensive drug and alcohol probation. It was this use of the word "temporary" in K.B. which led this court to determine that the order was interlocutory and unappealable. The judge's use of the word "temporary" in K.B. made his subsequent use of the word "probation" superfluous, as a person cannot be placed on "temporary probation." Such an order would be a contradiction in terms. We interpreted the judge's temporary order in K.B. to be an evaluative disposition to determine if K.B. was amenable to treatment under the juvenile act of this Commonwealth, 42 Pa.C.S.A. §§ 6301, et seq. (1976) (amended 1978) (hereinafter "Juvenile Act"). The present order, however, does not contain the qualifying word "temporary" and so Judge Jelin's order of probation is a final order. Although this distinction may seem obscure, it is a critical one. It makes the difference between a temporary evaluation in K.B., and the final order of probation in the present case.

Moreover, this court can only base its decision on what information and language is contained in the record, for we have no crystal ball to determine what was in the mind of the trial judge when he made his order. We can only rely on what is presented in the record. ²

We find M.M.'s issue on appeal--that the juvenile court's limitation of M.M.'s cross-examination was an abuse of discretion--is without merit. M.M. claims that the trial court erred in refusing to permit M.M. to ask Officer Perez on cross-examination whether he had anything to drink that evening or whether he had been to any bars. The defense in this case was that Officer Perez was mistaken when he identified M.M. as one of the perpetrators. In addition to the presentation of alibi and character witnesses, the defense sought to prove that the identification was unreliable. Consequently, during the cross-examination of Officer Perez, the defense attempted to impeach his credibility by showing that his perception of M.M., and the events surrounding his arrest, may have been impaired by the consumption of alcohol.

"It is well established that the scope and limits of cross-examination are within the discretion of the trial judge and [the trial judge's exercise of judgment in setting those limits] will not be reversed in the absence of a clear abuse of that discretion, or an error of law." Commonwealth v. Birch, 532 Pa. 563, 566, 616 A.2d 977, 978 (1992) (quoting Commonwealth v. Greene, 469 Pa. 399, 404, 366 A.2d 234,...