F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. For Law, for appellant.
Lawrence J. Roberts, Gilbert B. Abramson, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., would affirm the order of the trial court as to the tape recordings and reverse the order of the trial court as to the notes taken by the police during the defendant's interview. Pomeroy, J., filed a dissenting opinion.
This appeal comes before us after a grant of the Commonwealth's Petition for Interlocutory Appeal.*fn* On consideration of the order of the Court below and its effect on the Commonwealth's case, the appeal is dismissed as improvidently granted. Commonwealth v. Gullett, 459 Pa. 431, 434-435, 329 A.2d 513, 515 (1974) and cases cited therein.
POMEROY, Judge (dissenting).
This case presents the question of the appealability by the Commonwealth of an order by the lower court permitting the defendant-appellee, pursuant to Rule 310 of our Rules of Criminal Procedure,*fn1 to inspect and copy a tape recorded confession made by the defendant, together with police notes of any oral statements made by appellee during interrogation. After specially allowing the Commonwealth to appeal and hearing oral argument, the Court today dismisses the appeal as improvidently granted.
For the reasons stated hereinafter, I would permit the appeal to stand and reverse the order of discovery in part.
In my view, the Court's reliance upon Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974) and the cases cited therein as authority for dismissing the appeal is misplaced. Gullett was a case in which the Commonwealth sought to appeal an order suppressing certain evidence which the Commonwealth proposed to use at the trial of the defendant Gullett. We there stated the rule that "the Commonwealth may appeal from an adverse ruling below where it appears either that the order of suppression will necessitate the termination and conclusion of the prosecution or that the adverse order will substantially impair the prosecution in the presentation of its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963)." Id. at 435, 329 A.2d at 515 (emphasis added). It is clear that the Court in Gullett was referring solely to the appealability by the Commonwealth of orders of suppression. In the case of orders granting discovery we have never, to my knowledge, established similar requirements.
As to discovery orders, we have in the past permitted the Commonwealth to seek a writ of prohibition against their enforcement by the lower court. Commonwealth ex rel. Specter v. Shiomos, 457 Pa. 104, 320 A.2d 134 (1974); Commonwealth v. Caplan, 411 Pa. 563, 192 A.2d 894 (1963). In Shiomos, I expressed reservations as to whether that extraordinary remedy should be available for the purpose of challenging an order of discovery. See the concurring opinion of this writer, 457 Pa. at 110-111 n. 1, 320 A.2d at 137 n. 1. I believe that an appeal is the preferable route for the Commonwealth to follow in ...