Commonwealth v. Shearer

Justice NEWMAN

concurring.

I join the holding and rationale of the Majority with regard to the Order of the trial court being a collateral order pursuant to Pa.R.A.P. 313(b). Accordingly, it is reviewable. Further, I also join the Majority’s determination that the Order is not appropriate for review under Pa.R.A.P. 311(d). However, my analysis of Rule 311(d) differs from that of both the *148Majority and Mr. Justice Saylor in his Concurring Opinion, and I write separately to articulate my interpretation of that Rule.

The Majority notes that in Commonwealth v. Cosnek, 575 Pa. 411, 836 A.2d 871, 877 (2003):

we held that application of 311(d) in the suppression context is limited “to those ‘circumstances provided by law’ in which a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence.” Thus, we reject the Commonwealth’s assertion that it should always be permitted to appeal any pretrial order that has the potential to affect its ability to meet its burden of proof.
Moreover, we agree with Appellee that the trial court’s order requiring Complainant to submit to a psychological exam here cannot be said to result in the exclusion, suppression or preclusion of Commonwealth evidence and thus, is not appealable pursuant to Rule 311(d).

Majority Opinion at 141-44, 882 A.2d at 467-68 (internal citations omitted).

I authored a dissenting Opinion in Cosnek, disagreeing with the restrictive Majority position, which held that “as a matter of law, the Commonwealth can never appeal as of right from a trial court ruling denying a Commonwealth motion in limine to exclude defense evidence.” Cosnek, 836 A.2d at 882 (Newman J., dissenting). I do not believe that Rule 311(d) is limited to only suppression, preclusion, or exclusion of Commonwealth evidence. Rather, as I articulated in Cosnek, there may well be circumstances where the Commonwealth’s case would be hampered by the introduction of certain controversial defense evidence, and, in those situations, appeal under Rule 311(d) would be allowed.

Accordingly, I cannot accept the Majority’s reasoning in the matter sub judice that the trial court Order is not appealable under Rule 311(d) because “Cosnek limits the application of Rule 311(d) in the suppression context to those circumstances ‘in which a pretrial ruling results in the suppression, preclu*149sion or exclusion of Commonwealth evidence----Majority Opinion at 142-44, 882 A.2d at 468.

While I do not accept the underlying premise of the Majority’s reasoning regarding the application of Rule 311(d) to the trial court Order, I agree with its determination that the Rule does not permit appeal of this Order now. I believe that Judge Hudock’s analysis of the impact of the trial court Order regarding the compulsory psychological examination of the child victim was correct, where he noted that:

Instantly, the trial has not commenced, no jury has been impaneled, and no competency hearing has been conducted by the trial court. In recognition of its obligations, the trial court has ordered the child witness to submit to a psychological examination prior to the competency hearing. However, no order has as yet been entered which either declares the child to be incompetent or suppresses any portion of the child’s proposed testimony. Furthermore, the trial court has entered no order indicating that Appellee will be permitted to call the examining psychologist as a witness. In other words, no order has been entered delineating the quantum of evidence that the Commonwealth or Appellee will be permitted to adduce at trial.

Commonwealth v. Shearer, 828 A.2d 383, 387 (Pa.Super.2003) (Opinion of Hudock, J.) (emphasis added). As the Order has not implicated the introduction or preclusion of any evidence, it is not appropriate for review under Rule 311(d).

Mr. Justice Saylor notes in his Concurring Opinion that the Order is appealable as of right under Rule 311(d), as a result of his placing great weight on the Commonwealth’s good faith certification based on the particular facts of this matter. Although I, too, believe that the Commonwealth’s good faith certification is entitled to great weight in our analysis, I do not believe that its certification alone is dispositive of every matter. Here, where the trial court Order did not delineate any quantum of evidence with respect to either party, the good faith certification, in my opinion, does not allow for an appeal under Rule 311(d).

*150For these reasons, I believe that the Commonwealth is entitled to appeal under Rule 313(b) but not under Rule 311(d). I join the majority in reversing the Superior Court’s Order and remanding the matter for proceedings consistent with its holding.