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COMMONWEALTH PENNSYLVANIA v. ROBERT JAMES MONTGOMERY (10/30/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 30, 1981.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT JAMES MONTGOMERY

No. 1414 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Delaware County, Criminal Division, at No. 2011 of 1980.

COUNSEL

Jean Marie Cella, Assistant District Attorney, Media, for Commonwealth, appellant.

John W. Nails, Chester, for appellee.

Price, Wieand and Hoffman, JJ. Price, J., did not participate in the consideration or decision in this case.

Author: Per Curiam

[ 292 Pa. Super. Page 33]

The Commonwealth appeals, contending that the lower court erred in suppressing a piece of blue paper, a piece of pink paper, and three marked one dollar bills seized from appellee during a warrantless search. We need not address the merits of this appeal, however, because the Commonwealth has not perfected our jurisdiction to entertain it. In Commonwealth v. Kunkel, 254 Pa. Super. 5, 8-10, 385 A.2d 496, 498-99 (1978), a plurality of this Court held:

[I]n every case in which the Commonwealth appeals from an order suppressing evidence, the Commonwealth must include in its brief, in support of its claim that this court has jurisdiction to hear the appeal, 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.

Kunkel was subsequently adopted by a majority of this Court in Commonwealth v. Martz, 259 Pa. Super. 201, 203-04, 393 A.2d 787, 788 (1978). See also Commonwealth v. Trotman, 280 Pa. Super. 271, 273, 421 A.2d 718, 718-19 (1980); Commonwealth v. Hlavsa, 266 Pa. Super. 602, 607 n.3, 405 A.2d 1270, 1273 n.3 (1979) (SPAETH, J., dissenting). The Commonwealth's brief contains the following unsubstantiated assertion of this Court's jurisdiction:

This Court has jurisdiction to decide this appeal from a pre-trial order suppressing evidence since the question is

[ 292 Pa. Super. Page 34]

    purely one of law, and the suppression order results in the effective termination of the prosecution. Commonwealth v. Kunkel, 254 Pa. Super. 5, 385 A.2d 496 (1978); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

Consequently, because the Commonwealth has failed to articulate in its brief how "the suppression will terminate or substantially handicap the prosecution, [and to include] a brief explanation, not inconsistent with the record, why [that] is so," Commonwealth v. Kunkel, supra, 254 Pa. Super. at 10, 385 A.2d at 499, its appeal is not properly before this Court.

Appeal quashed.

19811030

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