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filed: June 12, 1981.


No. 2050 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Bradford County, Pennsylvania, Criminal Division, No. 80-939 C.A.


David B. Keeffe, Sayre, for appellant.

Leonard J. Frawley, Jr., Assistant District Attorney, Towanda, for Commonwealth, appellee.

Wickersham, Popovich and Watkins, JJ.

Author: Popovich

[ 288 Pa. Super. Page 199]

This is an appeal from the lower court's Order denying appellant's petition, filed pursuant to Pa.R.Crim.P. 324,*fn1 for

[ 288 Pa. Super. Page 200]

    the return of property alleged to be in the possession of the police as a result of a seizure under an invalid search warrant. We do not reach the merits of the issue raised. The Order appealed from is interlocutory, and the appeal, therefore, must be quashed.

A recital of the procedural history of the case is pertinent to an understanding of the ruling made. On June 30, 1980, Trooper Thomas Baggott secured a warrant to search appellant's place of business ("LEWIS AUTO BODY & GARAGE"). The warrant pertained to violations concerning: Commercial Bribery, 18 Pa.C.S.A. § 4108; Tampering With Records, 18 Pa.C.S.A. § 4104; and Receiving Stolen Property (Vehicles), 18 Pa.C.S.A. § 3925.*fn2 Searches were conducted by the police on July 1 and 14, 1980, at which time the authorities confiscated various items.*fn3 The appellant, having

[ 288 Pa. Super. Page 201]

    not been charged with any criminal offense at the time, filed a complaint in the civil division of the Bradford County Court of Common Pleas requesting the return of his property. The complaint was dismissed by the equity court on the ground that the proper forum to seek the relief requested was in the criminal division.*fn4 The appellant filed such a petition and averred therein that the items taken were done so by means of an improperly drawn and executed warrant. (See Appellant's "Amended Petition," Record No. 12) Hearings were held on July 18, 23, 24, 28 and 29, 1980; at the conclusion of the proceedings, an Order dismissing the petition was issued.*fn5 This appeal followed.

At the outset we must decide whether this Court has the authority to hear this appeal. Albeit neither party has

[ 288 Pa. Super. Page 202]

    specifically raised the question of jurisdiction, "it is still the affirmative duty of our Court to consider the issue of subject matter jurisdiction." Marcus v. Diulus, 242 Pa. Super. 151, 157, 363 A.2d 1205, 1208 (1976) (citation omitted); accord Turner v. May Corp., 285 Pa. Super. 241, 245 & n.2, 427 A.2d 203, 204 & n.2 (1981); see also Cohen v. Schofield, 299 Pa. 496, 502, 149 A. 710, 712 (1930). The appellate court's jurisdiction is defined by statute, viz., 42 Pa.C.S.A. § 742 (Purdon's 1981), which grants this Court:

"exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas, regardless of the nature of the controversy or the amount involved, except such classes of appeals as are by any provision of this chapter within the exclusive jurisdiction of the Supreme Court or the Commonwealth Court." (Emphasis added)

Instantly, the appellant asserts that the Order denying his motion for return of property is a "final order" within the meaning of Section 742. (Appellant's Brief, at 1) We do not agree.*fn6

Our Supreme Court, speaking on the finality requirement, has indicated:

"Whether an order is final and appealable cannot necessarily be ascertained from the face of the decree alone, nor simply from the technical effect of the adjudication. The finality of an order is a judicial conclusion which can be reached only after an examination of its ramifications. [Moreover,] . . . follow[ing] the reasoning of the United States Supreme Court[,] . . . a finding of finality must be the result of a practical rather than a technical construction. Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1226, 93 L.Ed. 1528 (1949)." (Footnote omitted) Bell v. Beneficial Consumer Discount Co., 465 Pa. 225, 228, 348 A.2d 734, 735 (1975).

[ 288 Pa. Super. Page 203]

Under the preceding standard, an order denying a motion to suppress has been interpreted to be interlocutory -- the rationale being that such a ruling is merely a step in the criminal process and any rights involved therein are adequately protected in subsequent trial proceedings. See Commonwealth v. Washington, 428 Pa. 131, 134, 236 A.2d 772, 774 (1968). In addition, the accused is afforded an opportunity to secure an appellate evaluation of the propriety and admissibility of the evidence in the event of conviction. Id.; Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

As for the appealability of an order denying a motion for the return of property, entered prior to the issuance of a complaint, indictment or information, the case of Commonwealth v. Rich, 174 Pa. Super. 174, 100 A.2d 144 (1953), cert. denied, 347 U.S. 966, 74 S.Ct. 777, 98 L.Ed. 1108 (1954), is illuminating. In Rich, the authorities seized, inter alia, gambling paraphernalia in a raid personally conducted by the district attorney under a search warrant issued by an alderman to a county detective. Before being indicted, the appellant petitioned for the return of his property and for a rule on the Commonwealth to show cause why it should not be returned. A hearing was held and legal arguments presented; thereafter, the lower court dismissed the petition and refused the issuance of a rule. At trial, over appellant's objection, the articles were admitted into evidence and a verdict of guilty was rendered. On appeal, in affirming the judgment of sentence, we reached the merits of the lower court's ruling denying appellant's petition, which rested in part on appellant's failure to appeal the lower court's refusal to grant the rule to show cause. We held:

"The case is one of first impression in Pennsylvania but the controlling principle is firmly established. Orders refusing a rule or denying the return of seized property are interlocutory, and an appeal from them would be quashed. 'Orders made during the pendency of a criminal action denying motions to vacate a search warrant, suppress evidence illegally obtained, or obtain the return of such property, are interlocutory and not appealable.' 24 C.J.S. Criminal Law, § 1644. C.J.S. also states, ibid:

[ 288 Pa. Super. Page 204]

'However, the denial of such an application is appealable where the application has the character of an independent proceeding, rather than a step in the trial of the criminal case, as where the application is made by a stranger to the litigation, or is made prior to the return of an indictment or information.' But this latter rule is derived from Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 [(1914)], which is not followed in Pennsylvania and has indeed been expressly repudiated by our Supreme Court and this Court. Com[monwealth] v. Dabbierio, 290 Pa. 174, 138 A. 679 [(1927)]; Com[monwealth] v. Greco, 166 Pa. Super. 133, 70 A.2d 413 [(1950)]; See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 [(1949)], where the United States Supreme Court acknowledged that Pennsylvania does not follow the Weeks case." (Emphasis added in part) (Footnote omitted) Id., 174 Pa. Super. at 178, 100 A.2d at 146-47. See generally Annot: Right To Recover Property Held By Public Authorities As Evidence For Use In A Criminal Case, 13 A.L.R. 1168 (1921).

Under the clear language of Rich, the appellant's appeal from the lower court's Order denying the return of seized property is interlocutory and, therefore, is to be quashed.*fn7 Concomitantly, the fact that a complaint was issued (on July 30, 1980)*fn8 prior to the lower court's Order (on August 14, 1980) denying appellant's motion makes the appeal no less interlocutory. Id.; see also Parrish v. United States, 376 F.2d 601, 603 (4th Cir. 1967); cf. DiBella v. United States, 369 U.S. 121, 131-33, 82 S.Ct. 654, 660, 7 L.Ed.2d 614 (1962)

[ 288 Pa. Super. Page 205]

(a lower court's order denying a pretrial motion is appealable "[o]nly if the motion is solely for return of property and is in no way tied to a criminal prosecution in esse against the movant . . . ."); United States v. Premises Known As 608 Taylor Ave., 584 F.2d 1297 (3d Cir. 1978) (semble); Shea v. Gabriel, 520 F.2d 879 (1st Cir. 1975) (semble).

Thus, given the criminal prosecution in esse against the appellant, we conclude that the "practical ramifications" of the lower court's order is not "'one which ends the litigation, or alternatively disposes of the entire case.'" Turner v. May Corp., supra, 285 Pa. Super. at 245, 427 A.2d at 205, quoting T. C. R. Realty, Inc. v. Cox, 472 Pa. 331, 337, 372 A.2d 721, 724 (1977). Since the appellant has the opportunity to secure relief from the court below, in the form of pre-trial motions and/or post-trial motions if conviction occurs, and if unsuccessful a review by this Court exists, our holding avoids "piecemeal" litigation. See Abney v. United States, 431 U.S. 651, 657, 97 S.Ct. 2034, 2039, 52 L.Ed.2d 651 (1977); United States v. Garner, 632 F.2d 758 (9th Cir. 1980). Further, the instant case presents no exceptional circumstances, jurisdictional issue or statutory authorization for an appeal from the interlocutory order entered herein. Commonwealth v. Schroeck, 273 Pa. Super. 386, 417 A.2d 702 (1980). The appeal, therefore, must be quashed.

Appeal quashed.

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