dissenting:
I dissent because I find that the grant of Appellee’s pretrial motion is not an order from which the Commonwealth may appeal.
In support of the appeal’s propriety, the majority cites to several cases in which the Commonwealth’s certification of the termination or substantial handicapping of its case by an interlocutory order will make that order appealable. However, the cases to which the majority cites are all cases in a different posture than the instant case. In those cases, the Commonwealth appealed orders excluding Commonwealth evidence, not admitting defense evidence. Our Supreme Court, in Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212 (1992) and Commonwealth v. Gordon, 543 Pa. 513, 673 A.2d 866 (1996), made clear that, while rulings on suppression orders and motions in limine may have different constitutional predicates, these differences are of no moment in cases where the Commonwealth certifies an appeal from the exclusion of its evidence.
The majority misconstrues the language from Gordon. Gordon does not stand for the proposition that the denial of a Commonwealth motion in limine, which may permit the introduction of defense evidence is appealable. Gordon permitted a Commonwealth appeal from a trial court ruling excluding Commonwealth evidence. The Supreme Court’s reference to the ruling on a motion in limine as one which excludes or admits evidence is a recognition of the effect of the trial court decision, not a grant of immediate appellate review of the denial of a Commonwealth motion in limine. In arriving at its decision, the court concluded that there is no functional difference between the exclusion of Commonwealth evidence based on a suppression motion or on a motion in limine. The court quoted from its holding in Cohen:
In summary, we hold that the Commonwealth may appeal pretrial orders which exclude evidence and have the effect of terminating or substantially handicapping the prosecution, in the same manner that the Commonwealth may appeal pretrial suppression orders.
Gordon, 673 A.2d at 868 (quoting Cohen, 605 A.2d at 1218).
In my judgment, Gordon was not meant to modify Cohen.
In this case, the trial court’s refusal to exclude, pre-trial, evidence offered by the defense, is not an appealable order. The order constitutes a pre-trial relevancy determination which will ultimately be decided at trial after the Commonwealth has presented its evidence. To allow the Commonwealth to appeal this order pre-trial could permit the Commonwealth to contest all of a defendant’s evidence pre-trial, a practice which would infringe upon a defendant’s constitutional right to present evidence subject to the issue of relevancy.