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decided: March 31, 1975.


Appeal from order of Court of Common Pleas of Bucks County, No. 1326 of 1971, in case of Commonwealth of Pennsylvania v. Henry T. Deren.


Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellant.

John A. Van Luvanee, with him William H. Eastburn, III, and Eastburn and Gray, for appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., did not participate in the consideration or decision of this case. Dissenting Opinion by Spaeth, J. Jacobs, J., joins in this opinion.

Author: Price

[ 233 Pa. Super. Page 376]

This appeal comes before the court following a lower court order suppressing evidence obtained pursuant to a search warrant. The Commonwealth appeals, claiming at oral argument that the suppression order is in error and that its case will be substantially prejudiced if the suppressed evidence is not admitted. We are again faced with the difficult problems which arise when the Commonwealth appeals such an order. We conclude that the appeal is proper and the evidence should be admitted.

At approximately 11:00 p.m. on March 31, 1971, Mrs. Jean Dutton was assaulted and robbed by an intruder in her home. As Mrs. Dutton was putting out the trash, the intruder grabbed her from behind and forced her into the house and into the bedroom. There he ripped off her clothes, warning that he would kill her if she screamed and aroused her children. Her attacker was wearing a simple Halloween mask that covered the region around his eyes. Mrs. Dutton managed to pull this mask down during the struggle. She later identified appellee as the man who attacked her, and pointed out appellee's house to the police.

The evidence that was suppressed consisted of samples of hair from appellee's head. The Commonwealth intended to show that a comparison of appellee's hair and hair found at the scene indicated that the hair found at the scene could have come from the appellee's body.

The case of Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), presents the law now applicable as to when a suppression order is appealable by the Commonwealth. While Bosurgi has been previously interpreted, we believe a re-examination and re-definition of the directives of that case is needed.

The Bosurgi court stated: "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 or (b) while the order

[ 233 Pa. Super. Page 377]

    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 the first situation, the element of finality inherent in the order of suppression is apparent and sufficient to render the order appealable. In the second situation, although the element of finality in the order is not so apparent, it is nevertheless present. Without a right of appeal in the Commonwealth in the second situation, the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression which forces the Commonwealth to trial without all of its evidence. The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents. In our zeal to protect and preserve for the accused every constitutional right to which he is entitled we too often forget and neglect to preserve the rights of society which, too, are entitled to consideration. An appellate review of the validity of the order of suppression cannot harm the defendant whereas the denial of the right to such review does harm the Commonwealth. 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 of appeal to the Commonwealth in both situations." 411 Pa. at 63-64, 190 A.2d at 308.

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. Stated another way, when the District Attorney from one of the counties of this Commonwealth

[ 233 Pa. Super. Page 378]

    directs an appeal from the suppression of evidence, we must accept such an appeal as the Commonwealth's good faith certification that the case will be terminated or substantially prejudiced by such an order, and determine only if the suppression was proper.

To apply any other test could permanently exclude evidence even if it was improperly suppressed. Such a result is contrary to our function in this matter, which is to ascertain that all evidence received is proper and to insure that the rights of all parties are protected. The District Attorney, representing the people of this Commonwealth, and he alone, has the right and duty to present the Commonwealth's case with all the legally available evidence that he, in his judgment, believes to be substantially necessary to the case.

In the case of Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967), the Commonwealth appealed a suppression order and Judge Jacobs, writing for the majority, stated: "[s]ince appellee has not filed a motion to quash, we will assume that the suppression order will substantially handicap the Commonwealth and hear the appeal." 211 Pa. Superior Ct. at 296, 235 A.2d at 463. When we are correctly willing to assume substantial prejudice we must also be willing to accept the Commonwealth's stated position that it will be substantially prejudiced by the suppression order.

The case at bar is exactly such a situation where the Commonwealth is substantially prejudiced because it cannot present all its available evidence and is deprived of the opportunity of testing the validity of the suppression order.*fn1 An examination of the record ...

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