No. 793 April Term 1976, Appeal from the Order dated April 14, 1976, in the Court of Common Pleas of Allegheny County, Criminal Division, at Nos. 7507803A and 7507797A, granting the Motion to Suppress.
Charles W. Johns and Robert L. Eberhardt, Assistant District Attorneys, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.
Robert W. Selko and James Kerry O'Malley, Pittsburgh, for appellees.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, did not participate in the consideration or decision of this case. Jacobs, President Judge, concurs in the result. Hoffman, J., files a dissenting opinion. Price, J., files a dissenting opinion in which Van der Voort, J., joins.
Appellees were charged with gambling, poolselling, bookmaking, and related offenses. The lower court granted their suppression motion on the basis that the search warrant had been improperly issued. The Commonwealth filed this appeal.
It is settled that the Commonwealth may only appeal from a pre-trial order suppressing evidence if two requirements are satisfied: the appeal must involve a pure question of law, and the suppression must effectively terminate or substantially handicap the prosecution. See Commonwealth v. Barnett, 471 Pa. 34, 369 A.2d 1180 (1977); Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963); Commonwealth v. DeFelice, 248 Pa. Super. 516, 375 A.2d 360 (1977). The second requirement was stated in Commonwealth v. Bosurgi, supra, 411 Pa. at 63-64, 190 A.2d at 308, as follows:
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 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.
It is, however, not settled how the Commonwealth is to show that it is "substantially handicapped"; indeed our cases are
in conflict, and before we may decide this case they must be reconciled.
In Commonwealth v. DeFelice, supra, the majority of this court, per HOFFMAN, J., held that an appeal will be quashed where we determine from our examination of the record that the suppression order does not in fact terminate or substantially handicap the prosecution. In Commonwealth v. Trefry, 249 Pa. Super. 117, 375 A.2d 786 (1977), the majority, per PRICE, J., held that the bare allegation by the Commonwealth that it would be substantially handicapped was sufficient to assure appellate review.
These tests appear irreconcilable: Judge PRICE's test is satisfied by a bare allegation; Judge HOFFMAN's test requires a factual finding from the record. This appearance of irreconcilability is further manifested by the conflicting opinions in Commonwealth v. Deren, 233 Pa. Super. 373, 337 A.2d 600 (1975). There, the dissenting opinion, by SPAETH, J., joined by JACOBS, J., concluded that the record did not support the conclusion that the prosecution would be substantially handicapped. Id., 233 Pa. Super. at 383-89, 337 A.2d at 605-608. The majority opinion, however, by PRICE, J., held that
we must accept such an appeal as the Commonwealth's good faith certification that the case will be ...