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COMMONWEALTH v. GUARDIANI (09/19/73)

decided: September 19, 1973.

COMMONWEALTH, APPELLANT,
v.
GUARDIANI



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, M. C. No. 72-03-2790, in case of Commonwealth of Pennsylvania v. Evelyn Guardiani.

COUNSEL

Martin H. Belsky, Assistant District Attorney, with him James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Miriam L. Gafni, with her Piwosky and Gafni, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Dissenting Opinion by Hoffman, J. Spaulding and Cercone, JJ., join in this dissenting opinion.

Author: Spaeth

[ 226 Pa. Super. Page 436]

Appellee was arrested and charged with malicious use of the telephone (among other offenses). A detective of the Philadelphia Police Department obtained from a judge of the Municipal Court a search warrant ordering appellee to give voice prints to the Commonwealth. When appellee refused, the Commonwealth asked a judge of the Court of Common Pleas to hold appellee in contempt. After argument and briefs, the judge held that "the search and seizure warrant was validly issued and . . . if a voice print can legally be requested to be given involuntarily, the defendant [appellee] would properly be held in contempt of court." The judge further held, however, that "a voice print bears the same lack of scientific reliability as a polygraph test, and therefore, should be administered only under the same circumstances, namely a waiver. There being no waiver and no voluntary submission, no requirement that an individual submit to an involuntary voice print test [exists]. I find the contempt order without warrant, and therefore, discharge the defendant from the contempt citation." The Commonwealth has appealed from this order, arguing that appellee should have been held in contempt because "[c]ompelling one to give a voice sample is no different than

[ 226 Pa. Super. Page 437]

    compelling an individual to submit to a lineup, fingerprinting, photographing, or blood sampling." (Commonwealth's Brief at 6.) We do not reach this interesting question because, as will appear, the Commonwealth's appeal must be quashed.

"The Superior Court derives all its jurisdiction and powers from statute. See Duquesne City v. Fincke, 269 Pa. 112, 115, 112 A. 130; Commonwealth v. Long, 276 Pa. 154, 156, 120 A. 125; Commonwealth ex rel. v. Speer, 267 Pa. 129, 134, 110 A. 268; cf. Pittsburgh v. Pierce, 69 Pa. Superior Ct. 520, 524. Hence, no right of appellate review exists in that court in any instance except it be expressly authorized by statute." Commonwealth v. Harris, 409 Pa. 163, at 171, 185 A.2d 586, at 590, quoting from Bell Appeal, 396 Pa. 592, 597, 152 A.2d 731, 734 (1959).

The statute authorizing appeals to the Superior Court is the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P. L. 673, No. 223, 17 P.S. § 211.101 et seq. Section 302 of the Act, 17 P.S. § 211.302, provides: "The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or amount involved, except such class of appeals as are by any section of this act within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court."

The refusal of a lower court to enter an order holding someone in contempt may be a "final order", but only if the refusal is tantamount to denying to the party requesting the order relief to which that party has a right under an earlier final order. Thus, in State Grand Lodge of Pa. v. Morrison, 277 Pa. 41, 120 A. 769 (1923), an appeal was held to lie in a contempt proceeding where the lower court had entered a decree requiring the defendants to deliver certain property to the plaintiffs, the decree had been affirmed, the defendants

[ 226 Pa. Super. Page 438]

    had refused to obey, and yet the plaintiffs' petition for attachment was denied. In adjudging the defendants in contempt, with a direction to the lower court that attachment issue, the Supreme Court said: "[T]o set at defiance those decrees where property and individual rights are solemnly finally adjudicated, and to raise impediments to frustrate the execution of those decrees, is without a semblance of justification. If any court permits such contempt to go unpunished, it might as well close its doors, proclaim itself incapable of functioning, and become itself contemptible." Id. at 47, 120 A. at 771. Similarly, in Braunschweiger's Estate, 322 Pa. 394, 185 A. 753 (1936), where an earlier decree directed a fiduciary to make a certain distribution to the petitioner, the decree became final, and yet the fiduciary refused to make the distribution, the lower court's refusal to issue attachment was reversed. And cf. Aungst Contempt Case, 411 Pa. 595, 192 A.2d 723 (1963) (affirming an order denying a petition for a contempt order where the petition was "separate and independent of any other action or litigation"), and Davidyan v. Davidyan, 333 Pa. 465, 3 A.2d 921 (1939) (affirming an order denying a petition for a contempt order where although the petitioner sought to compel the ...


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