No. 874 October Term 1977, Appeal from Suppression Order of Warren K. Hess, retired Law Judge, Dated Jan. 5, 1977, in the Court of Common Pleas of Berks County, No. 76094901., Criminal.
Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Com., appellant.
Lynn Erickson Stock, Reading, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.*fn1 Price and Van der Voort, JJ., dissent. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
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Appellant was charged with criminal mischief. The lower court granted his motion to suppress certain evidence on the
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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 pretrial suppression order if the question raised by the order is a pure question of law, and if the order effectively terminates or substantially handicaps the prosecution, Commonwealth v. DeFlice, 248 Pa. Super. 516, 521, 375 A.2d 360, 363 (1977) (cases cited therein).
In Commonwealth v. Kunkel, 254 Pa. Super. 5, 10, 385 A.2d 496, 499, a plurality of this court held that in order to show that this court has jurisdiction to hear the appeal
the Commonwealth must include in its brief . . . first, a statement that the suppression will terminate or substantially handicap the prosecution; and second, a brief explanation, not inconsistent with the record, why this is so.
Id., 254 Pa. at 10, 385 A.2d at 499.
Since the Commonwealth's brief in Kunkel did not contain "even a bare, or conclusory, allegation . . . that the suppression will terminate or substantially handicap the prosecution", id., 254 Pa. at 11, 385 A.2d at 499, we deferred decision to allow the Commonwealth the opportunity to file a ...