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COMMONWEALTH PENNSYLVANIA v. PAUL RICHARD MCCABE (08/13/82)

filed: August 13, 1982.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
PAUL RICHARD MCCABE



NO. 3 HARRISBURG, 1981, Appeal from Order entered in the Court of Common Pleas, Criminal Division, of Adams County at No. CC-238 of 1980.

COUNSEL

Gary E. Hartman, District Attorney, Gettysburg, for Commonwealth, appellant.

Samuel K. Gates, York, for appellee.

Brosky, McEwen and Beck, JJ.

Author: Beck

[ 303 Pa. Super. Page 246]

The Commonwealth appeals an order of the Court of Common Pleas of Adams County which granted appellee's motion to suppress the testimony of a Commonwealth witness. The sole issue on appeal is whether the trial court properly suppressed the witness' testimony as to matters which came to the witness' consciousness through hypnosis. We affirm.

[ 303 Pa. Super. Page 247]

JURISDICTION

Appellee asserts that this Court lacks jurisdiction*fn1 over the instant case because the Commonwealth is attempting to appeal an interlocutory order, i.e., the order granting appellee's motion to suppress.

On December 31, 1980, the Commonwealth filed a notice of appeal pursuant to Pa.R.A.P. 902 which governs appeals "as of right from a lower court to an appellate court." Id. On January 6, 1981, under Pa.R.A.P. 1311, the Commonwealth also filed a petition for permission to appeal from an interlocutory order. Both the Commonwealth's notice of appeal and its petition for permission to appeal concerned the trial court's granting of appellee's suppression motion. Finally, on June 8, 1981, appellee filed a motion to quash the Commonwealth's appeal of the suppression order, arguing that the order was interlocutory and thus non-appealable.

[ 303 Pa. Super. Page 248]

Pursuant to Section 702(a)-(b) of the Judicial Code, 42 Pa.C.S. § 702(a)-(b), interlocutory orders are appealable only (a) as of right if enumerated in Pa.R.A.P. 311 or (b) by permission of the court in accordance with Pa.R.A.P. 312. However, Section 702(b) of the Judicial Code and Pa.R.A.P. 1311(b) provide that permission to appeal an interlocutory order may be sought only where the order states that "a controlling question of law [is involved] as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter . . . ." 42 Pa.C.S. § 702(b). Because in the present case the lower court's order did not include the required statement and because the Commonwealth filed a notice of appeal, this Court on June 16, 1981, denied the Commonwealth's petition for permission to appeal. Butler Education Association v. Butler Area Page 248} School District, 34 Pa. Commw.Ct. 143, 382 A.2d 1283 (1978). Additionally, on July 21, 1981, this Court denied appellee's motion to quash, and the Commonwealth proceeded on its notice of appeal. "[I]t is settled that the Commonwealth may appeal from a pretrial suppression order if the question raised is a pure question of law and if the order effectively terminates or substantially handicaps the prosecution." Commonwealth v. Pfender, 280 Pa. Super.Ct. 417, 421, 421 A.2d 791, 793 (1980).

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. In the first situation, the element of finality inherent in the order of suppression is apparent and sufficient to render the order appealable. In the second situation, although the element of finality in the order is not so apparent, it is nevertheless present . . . . In both factual situations the practical effects of an order granting the suppression of evidence give to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth in both situations.

Commonwealth v. Bosurgi, 411 Pa. 56, 63-64, 190 A.2d 304, 308 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963) (emphasis in original) (quoted approvingly in Commonwealth v. Nastari, 232 Pa. Super.Ct. 405, 408 n.1, 335 A.2d 468, 469-70 n.1 (1975), allocatur denied, May 22, 1975); Commonwealth v. Nazarovitch, 496 Pa. 97 n.1, 436 A.2d 170, 172 n.1 (1981).

[ 303 Pa. Super. Page 249]

To appeal a suppression order, "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." Commonwealth v. Page 249} Kunkel, 254 Pa. Super.Ct. 5, 10, 385 A.2d 496, 499 (1978). Here, the Commonwealth comported with Kunkel by including the following statement in its brief:

As the trial court noted in its opinion of January 27, 1981, the Order decided law novel to Pennsylvania and effectively terminated the Commonwealth's ability to prosecute. The hypnotically induced testimony which was suppressed was the only evidence which implicated Paul Richard McCabe in the deaths of Nancy and Debbie Patterson or the related charges.

(Emphasis in Commonwealth's brief.)

FACTS SURROUNDING THE WITNESS' HYPNOTICALLY-INDUCED TESTIMONY

Being awakened by noise during the early hours of August 30, 1980, the witness, a sixteen-year-old girl, discovered that her home was afire and fled. During the next hour, the witness' mother and older sister were fatally shot in the front yard of the witness' home; Paul Sells, a member of the witness' household, was injured, and only the witness and her nine-year-old brother escaped harm.

On August 30, 1980, Paul Sells was able to identify his assailant as Keith, the witness' brother who lived in a residence with appellee. Consequently, the police arrested not only Keith but also appellee, Keith's only known associate. However, appellee was released the same day for lack of evidence, and his release was reported in several news articles read by, or made known to, the witness.

The police attempted to question the witness the day after the fatal incident but found the witness too distraught. The witness' statement was finally taken at a state police barracks on September 1, 1980. The witness reported that upon being awakened early on August 30, 1980, by the sound of a smoke alarm and breaking glass, she found her home afire. She quickly exited her home through the kitchen door and saw that a man with a shot gun was standing on the ...


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