Commonwealth v. Deren

Dissenting Opinion by

Spaeth, J.:

Although the propriety of taking this appeal was not briefed by either party, it was raised by this court at the oral argument.1 I believe the appeal should be quashed.

At approximately 11:00 p.m. on March 31, 1971, Mrs. Jean Dutton was assaulted and robbed by an intruder in her home. The intruder grabbed her from behind as she was putting out the trash and carried her into the bedroom. There he ripped off her clothes, warning that he *384would kill her if she screamed and roused her children. The man was masked with a simple Halloween mask that covered the region around his eyes. Mrs. Dutton managed to pull this mask down during the struggle. She later told the police that appellee was the man who attacked her, and he was arrested on the basis of that information.2

The evidence that was suppressed consists of samples of hair from appellee’s head. In the amended bill of particulars the Commonwealth stated that “[a]n analysis of [appellee’s] hair and comparison with hair samples found at the scene determine that the latter hair sample could have come from the body of [appellee].”

As a general proposition it may be said that the jurisdiction of an appellate court is limited to the review of “final orders.” If the order is “interlocutory” some special authorization conferring jurisdiction must be found. With specific reference to this court, the Appellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, art. Ill, §302, 17 P.S. §211.302, provides that “[t]he Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas . . . except such classes of appeals as are by any section of this act within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court.” In Commonwealth v. Rucco, 229 Pa. Superior Ct. 247, 249-250, 324 A.2d 388, 389 (1974), it is said: “Our appellate jurisdiction extends to non-final orders only where: (a) an appeal from an interlocutory order *385is authorized by law: Appellate Court Jurisdiction Act, supra, §501 (a), 17 P.S. §211.501 (a) ; (b) a lower court has certified the issue involved in the interlocutory order as “a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter . . Id., §501 (b), 17 P.S. §211.501 (b) ; or, (c) the appellee has waived an objection to the jurisdiction of the court: [Id.], §503(a), 17 P.S. §211.503(a). Regarding the latter two instances of jurisdiction over appeals from interlocutory orders, we may, in our discretion refuse to exercise that jurisdiction.”

It would seem that an order suppressing evidence is interlocutory: it is a pre-trial order, and it does not preclude the Commonwealth from proceeding with the trial. On this analysis the order would be appealable only if (a) appeal “is authorized by law” or (b) the court below has appropriately certified the order. Appellate Court Jurisdiction Act, supra. Since there is no “law”, i.e. statute, authorizing appeal from an order suppressing evidence,3 appeal would only lie if the order has been appropriately certified. In fact, however, the cases have taken a different tack, and the question of whether an order suppressing evidence may be appealed has been decided by considering' whether under the circumstances of the particular case the order has “such an attribute of finality” as to make it proper to treat it as though it were a final order. The origin of this approach is Commonwealth v. Bosurgi 411 Pa. 56, 63-64, 190 A.2d 304, 308 (1963), where it was said: “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 *386or (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 substantially handicapped because it cannot present all its available evidence ... In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right to appeal to the Commonwealth in both situations.”4

The typical case of a Commonwealth appeal allowed under part (a) of the Bosurgi rule is where the crime is one of possession of contraband. The (usually unstated) premise is that without the fruits of the search the Commonwealth cannot prove that the defendant ever had the contraband; thus an element of the crime would be lacking and the Commonwealth would not be able to prove its case. Commonwealth v. Pugh, 228 Pa. Superior Ct. 112, 296 A.2d 864 (1972) (possession of heroin); Commonwealth v. Manduchi, 222 Pa. Superior Ct. 562, 295 A.2d 150 (1972) (bookmaking paraphernalia); Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A.2d 904, cert. denied 401 U. S. 914 (1970) (illegal lottery); Commonwealth v. Payton, 212 Pa. Superior Ct. 254, 243 A.2d 202 (1968) (bookmaking); Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967) (possession of narcotics).5

*387Cases within part (b) of the Bosurgi rule involve situations where without the fruits of the search the Commonwealth might be able to prove its case, but probably not. Thus in Commonwealth v. Wright, 411 Pa. 81, 190 A.2d 709 (1963), the court allowed an appeal where although “ [i] nformation given the police pointed the finger of suspicion at the defendant,” id. at 83, 190 A.2d at 710, the court below had suppressed stolen money found in the defendant’s apartment. And see Commonwealth v. Cockfield, 411 Pa. 71, 190 A.2d 898 (1963) (arson murder; defendant had quarreled with and threatened decedent; search of defendant’s car disclosed gasoline and charred toilet paper) ; Commonwealth v. Bosurgi, supra (burglary of jewelry store; “undisclosed source” tells police defendant seen “attempting to sell watches;” search of defendant discloses watches later identified as from store; “evidence suppressed may well mark the difference between success and failure in the prosecution”).6

Cases where the appeal has been quashed because it appears that despite the order suppressing evidence the Commonwealth will be able to prove its case are unusual, perhaps because fewer of these cases are appealed. In Commonwealth v. Thorne, 223 Pa. Superior Ct. 122, 299 A.2d 370 (1972), the appeal was quashed *388because counsel for the Commonwealth conceded at oral argument that it should be. In Commonwealth v. Kloch, 221 Pa. Superior Ct. 324, 292 A.2d 479 (1972), not cited by the majority, the results of a blood alcohol test had been suppressed as tainted by an illegal arrest but the appeal was quashed because there was plenty of other evidence to prove the defendant’s drunk driving (as indeed was demonstrated by the ensuing conviction: see, Commonwealth v. Kloch, 230 Pa. Superior Ct. 563, 327 A.2d 375 (1974)).

In the present case the evidence that has been suppressed would allegedly prove that hair found at the scene of the crime “could have come” (in the Commonwealth’s words) from appellee’s head. Mrs. Dutton, however, is apparently prepared to testify, as she did at the hearing on the motion to suppress, that appellee assaulted her, and that she knows he did because she got a good look at him and recognized him as someone she knew. Thus the suppressed evidence is not needed to supply an element of the crime. Nor does it appear that the evidence is needed to reinforce other evidence that by itself is probably insufficient. Nothing suggests that Mrs. Dutton’s testimony would be insufficient to carry the case to the jury; to the contrary, it appears quite sufficient; and in any case, it is by no means clear that evidence of the hair test would work any reinforcement. The Commonwealth’s offer is to have an expert witness compare hair taken from appellee’s head with hair found at the scene. If after making the comparison the expert would only say that the hair found at the scene “could have come” from appellee’s head he would not have said much. It seems implicit, moreover, that on cross-examination he would have to acknowledge that the hair at the scene might not have come or that he could not tell whether it did in fact come from appellee’s head, in which event, depending upon what further cross-examination elicited, the testimony might *389be so speculative as to be inadmissible. State v. Holt, 17 Ohio St.2d 81, 246 N.E.2d 365 (1969) (reversible error to admit opinions that “ 'the [hair] samples are similar and are likely to be from the same source’ ” (emphasis in original)).

Thus it cannot be said, as it was in Commonwealth v. Bosurgi, supra, either (a) that the order suppressing the hair found at the scene “will result in a termination or conclusion of the prosecution,” or (b) that because of the order the Commonwealth will be “substantially handicapped because it cannot present all its available evidence .... The evidence suppressed may well mark the difference between success and failure in the prosecution.” Id. at 63, 190 A.2d at 308. Accordingly, under the Bosurgi rule the appeal should be quashed.

Jacobs, J., joins in this opinion.

. This court reserves the right to raise the issue of its own jurisdiction even where that issue has not been raised by either party. See, e.g., Davidyan v. Davidyan, 229 Pa. Superior Ct. 495, 327 A.2d 139 (1974); Commonwealth ex rel. Colcough v. Aytch, 227 Pa. Superior Ct. 527, 323 A.2d 359 (1974).

. At the hearing on the motion to suppress Mrs. Dutton testified that when she pulled her attacker’s mask down she got a good look at him and saw that he was someone she knew; she went on to say that the attacker was appellee, whom she had met the year before when he and she were invited to an Easter dinner. Also, there is in the record an affidavit for a search warrant reciting that Mrs. Dutton told the affiant police officer “that her children played frequently with [appellee’s] children and she was thus familiar with where [appellee] resided. . . .”

. As for example there is when the question is whether the court below has jurisdiction over the parties or subject matter. Act of March 5, 1925, P.L. 23, §1, 12 P.S. §672.

. After quoting this passage, the majority states: “We interpret this to mean that any time the Commonwealth alleges that its case will be either terminated and concluded or substantially prejudiced by a suppression order, we must review the suppression order only on its merits.” Ante at 377. That this (or any) court “must” act at “any time” one party to a case “alleges” something rather surprises me, and I do not believe Bosurgi so held. See also Commonwealth v. Kloch, discussed infra at 388.

. This case disposed of the issue of the Commonwealth’s ability to bring the appeal by noting that appellee did not object. However, as pointed out earlier in this opinion, the court is still free to raise the issue on its own motion.

. The Bosurgi rule' has also been applied in appeals from orders suppressing confessions (as distinguished from orders suppressing real evidence). Commonwealth v. Rowe, 445 Pa. 454, 282 A.2d 319 (1971); Commonwealth v. Taper, 434 Pa. 71, 253 A.2d 90 (1969); Commonwealth v. Fisher, 422 Pa. 134, 221 A.2d 115 (1966); Commonwealth v. Smith, 212 Pa. Superior Ct. 403, 244 A.2d 787 (1968) (appeal quashed where suppressed statement did not amount to a confession). Cf. Commonwealth v. Whitehouse, 222 Pa. Superior Ct. 127, 130, 292 A.2d 469, 470 (1972) (allocatur refused, 222 Pa. Superior Ct. xxxii) : “The Commonwealth was in no position in the face of this [suppression] order to appeal the court’s finding that the warrant was defective as it was in a position to proceed with trial on the statements not suppressed. . . .”