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COMMONWEALTH PENNSYLVANIA v. VICTOR DEFELICE (06/29/77)

decided: June 29, 1977.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
VICTOR DEFELICE, JR.



Appeal from the Order of the Court of Common Pleas of Delaware County, Criminal Division, as of Nos. 1248-1252. December Sessions 1974, granting Defendant's Petition to Suppress Evidence.

COUNSEL

Ralph B. D'Iorio, Assistant District Attorney, Media, for appellant.

David E. Auerbach, Media, submitted a brief for appellee.

Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a dissenting opinion in which Jacobs, J., joins. Van der Voort, J., files a dissenting opinion in which Jacobs, J., joins.

Author: Hoffman

[ 248 Pa. Super. Page 518]

The Commonwealth has appealed the suppression by the lower court of appellee's out-of-court identifications and arrest.*fn1 Because the lower court did not suppress the appellee's confession, the fruits of the robbery or the complaining

[ 248 Pa. Super. Page 519]

    witnesses' in-court identifications, the Commonwealth has not been substantially handicapped in its ability to proceed to trial. Therefore, we quash this appeal.

During the morning of October 9, 1974, a lone gunman robbed a pharmacy in Haverford Township, Delaware County. At approximately 10:00 a. m., two Haverford Township police reported to the scene and secured a detailed description of the suspect. The police followed the suspect's reported route of escape and determined that he had entered a house at 100 Marthart Avenue. As the police talked to people standing outside the house, appellee came out and requested medical assistance for a cut hand.

The police noticed that appellee fit the description of the robber except for the fact that the suspect was supposed to have a beard while appellee had obviously recently shaved. The officers left appellee's residence and reported their findings to the Haverford Township Detective Bureau. Detective McNasby instructed the two officers to return to appellee's residence to bring appellee to the station for further questioning. McNasby also instructed the officers to try to get a positive identification of the appellee on their way back to the station.

The officers returned to appellee's residence a little before noon, knocked on the door, and requested to speak to appellee. When appellee came to the door, the officers told him they were investigating a robbery and requested that he agree to an identification by the eyewitnesses. The officers handcuffed appellee and drove to the pharmacy. As they alighted from the car, the pharmacy clerk immediately identified appellee as the robber. The police placed appellee under "formal" arrest, warned him of his right to remain silent, and drove him to the police station. At the police station, the police arranged a face-to-face confrontation between appellee and three other eyewitnesses. The police warned appellee of his Miranda rights again and then secured his signature on a consent form allowing them to search his apartment. The officers returned to appellee's residence and searched his room, but found no proceeds of

[ 248 Pa. Super. Page 520]

    the robbery. After the officers secured signed consent forms for the search of the rest of the house from the other occupants, the officers found a variety of hypodermic needles, related drug paraphernalia, assorted pills and other items taken in the robbery, and a .38 caliber revolver loaded with hollow point bullets, in the attic of the house. The officers then returned to the police station.

Upon their return, the officers warned appellee of his right to remain silent; and appellee agreed to submit to questioning without an attorney present. At approximately 3:20 p. m., appellee gave a statement to the police in which he admitted that he committed the robbery.

Appellee filed a motion to suppress all of the physical evidence secured as the result of his allegedly unlawful arrest because it was secured without a warrant and by coercion. Appellee also sought to suppress the eyewitness identifications because they were secured in the absence of counsel and by means of impermissibly suggestive procedures. Finally, appellee contended that his confession was involuntary because he made it while going through withdrawal under promises of medical assistance if he cooperated. After a hearing on April 22, 1975, the lower court suppressed appellee's identification and "the arrest." The lower court did not clearly indicate that it would suppress the fruits of the search and seizure.*fn2 It did not hold a taint hearing to determine whether the appellant could still be identified in court by the eyewitnesses.*fn3 Further,

[ 248 Pa. Super. Page 521]

    it is clear that the lower court did not grant appellee's request that his allegedly involuntary confession be suppressed.*fn4

It is a fundamental axiom of appellate court jurisdiction that an appeal will lie only from a definitive order, decree or judgment which finally terminates the action. Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967); Commonwealth v. Guardiani, 226 Pa. Super. 435, 310 A.2d 422 (1973). Except for certain statutory exceptions,*fn5 not relevant to the instant case, this Court's jurisdiction is confined to appeals from final order of the courts of common pleas. The Appellate Court Jurisdiction Act of July 31, 1970, P.L. 673, No. 223, art. III, § 302, 17 P.S. § 211.302 (Supp.1976). See Commonwealth v. Rucco, 229 Pa. Super. 247, 249-50, 324 A.2d 388, 389 (1974). It is also well settled that the parties may not stipulate to appellate jurisdiction in disregard of statutory procedures. Commonwealth v. Yorktowne Paper Mills, Inc., 419 Pa. 363, 214 A.2d 203 (1965). And that jurisdiction ...


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