No. 1043 April Term, 1978, Appeal from the Order of May 26, 1978 in the Court of Common Please of Allegheny County, Criminal No. CC7705603A, No. 2696 Philadelphia, 1980, Appeal from the Suppression Order of October 22, 1980, in the Court of Common Pleas of Chester County, Criminal No. 1064-80.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh for Commonwealth, appellant (at No. 1043).
Lee Ruslander, Assistant District Attorney, West Chester, for Commonwealth, appellant (at No. 2696).
Norma Chase, Pittsburgh, for Lapia, appellee (at No. 1043).
Andrew Stuart Wade, West Chester, for Dugger, appellee (at No. 2696).
Cercone, President Judge, and Spaeth, Cavanaugh, Wieand, McEwen, Cirillo and Montemuro, JJ. Cavanaugh, J., files a concurring opinion in which Montemuro, J., joins. Wieand, J., files a concurring and dissenting opinion in which McEwen and Cirillo, JJ., join. McEwen and Cirillo, JJ., file concurring and dissenting opinions.
[ 311 Pa. Super. Page 270]
This case arises on two appeals, each by the Commonwealth from an order suppressing evidence. We ordered the appeals consolidated because they both involve the issue of when an order suppressing evidence is appealable.
In Part I of this opinion we conclude that an order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution. This conclusion involves overruling Commonwealth v. Martz, 259 Pa. Superior Ct. 201, 393 A.2d 787 (1978), and Commonwealth v. Kunkel, 254 Pa. Superior Ct. 5, 385 A.2d 496 (1978) (plurality opinion), where we held that an order suppressing evidence is not appealable if the Commonwealth fails to state in its brief that the order terminates or substantially handicaps the prosecution, with a brief explanation, which may go outside of but must not be inconsistent with the record, of why that is so. It also involves overruling Commonwealth v. Trefry, 249 Pa. Superior Ct. 117, 375 A.2d 786 (1977), and Commonwealth v. Deren, 233 Pa. Superior Ct. 373, 337 A.2d 600 (1975), where we held that "we must accept" an appeal from an order suppressing evidence "as the Commonwealth's good faith certification" that the prosecution will be terminated or substantially handicapped.*fn1
In the course of our discussion we recognize that sometimes an order suppressing evidence may in fact substantially handicap the prosecution but that fact will not be apparent from the record. We have concluded, however, that in such a case the order suppressing evidence is not appealable, and cannot be made appealable by any statement by the Commonwealth. If such an order is to be appealable, it must be made appealable by Supreme Court
[ 311 Pa. Super. Page 271]
rule. Judge CAVANAUGH, in an opinion joined by Judge MONTEMURO, concurs in this conclusion. Judge McEWEN and Judge CIRILLO, for the reasons stated in their respective opinions, would not overrule Trefry and Deren.
In Part II of this opinion we apply to the two orders before us the conclusions reached in Part I, and find that it is apparent from the record that both orders would terminate the prosecution. We therefore hold the orders appealable, and consider them on their merits. Again we are variously divided. In Commonwealth v. Lapia, we all agree that the evidence was properly suppressed and that the order of the lower court should therefore be affirmed. The reasoning of the majority of the court is stated in this opinion. Judge WIEAND and Judge CIRILLO concur in the result. In Commonwealth v. Dugger, we are obliged to interpret the Act of May 11, 1911, P.L. 274 § 4, 61 P.S. § 384. In this opinion the view is expressed, first, that under the Act, prison officials may, in a manner appropriate to the particular circumstances, search a person who wishes to visit the prison, if the officials act on the basis of reasonable suspicion, and if the visitor, after being advised that he may leave without making his visit, voluntarily consents to the search; and second, that on the record here, the Commonwealth failed to prove either reasonable suspicion or voluntary consent. The President Judge joins in this opinion. Concurring, Judge CAVANAUGH, in an opinion joined by Judge MONTEMURO, would hold that the Commonwealth did prove reasonable suspicion, but that where, as here, the search was a strip search, voluntary consent to the search must also be proved and that it was not. Thus, the President Judge, Judge CAVANAUGH and Judge MONTEMURO, and I agree that the search was illegal and, therefore, that the evidence was properly suppressed and the order of the lower court should be affirmed. Judge WIEAND, in an opinion joined by Judge McEWEN and Judge CIRILLO, would hold that the Commonwealth did prove reasonable suspicion and consent.
[ 311 Pa. Super. Page 272]
They would therefore uphold the search and reverse the order of the lower court.
In Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304, cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963), the Supreme Court held that when an order suppressing evidence terminates or substantially handicaps the prosecution, the order is immediately appealable by the Commonwealth. This is so because in practical effect, the order is final. If the Commonwealth were required to go to trial without the suppressed evidence, the defendant would probably, if not certainly, be acquitted. Since the Commonwealth may not appeal an acquittal, it would never have had an opportunity to secure appellate review of the order.
In Bosurgi the court did not address the question of how an appellate court is to determine whether an order suppressing evidence does in fact terminate or substantially handicap the prosecution. In Commonwealth v. Martz, 259 Pa. Superior Ct. 201, 393 A.2d 787 (1978), this court specified a procedure that it hoped would enable it to make that determination, and thereby decide whether an order is appealable. The procedure had been proposed by the plurality opinion in Commonwealth v. Kunkel, 254 Pa. Superior Ct. 5, 385 A.2d 496 (1978). It was that an order suppressing evidence is not appealable if the Commonwealth fails to state in its brief that the order terminates or substantially handicaps the prosecution, with a brief explanation, which may go outside of but must not be inconsistent with the record, of why that is so.
It is undisputed that in the two cases before us, the Commonwealth failed to comply with the procedure established by Kunkel and Martz. In the first case, Commonwealth v. Lapia, No. 1043 April Term 1978, a panel of this court filed an opinion and order on March 12, 1982, quashing the Commonwealth's appeal because of that failure. We granted the Commonwealth's petition for reargument before the court en banc. We also sua sponte ordered
[ 311 Pa. Super. Page 273]
reargument in the second case, Commonwealth v. Dugger, No. 2696 Philadelphia 1980, which had been argued before another panel but had not yet been decided. We then ordered the cases to be reargued together and instructed counsel that we wished to reconsider the procedures established by Kunkel and Martz.
We may start our discussion by reviewing the decisions that led to Kunkel and Martz.
This court's first citation of Bosurgi in connection with a Commonwealth appeal from an order suppressing evidence was in Commonwealth v. Smyser, 205 Pa. Superior Ct. 599, 211 A.2d 59 (1965). There we said simply, "Such an appeal is properly made at this time: Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304." Id., 205 Pa. Superior at 601, 211 A.2d at 61. Our next case was Commonwealth v. Rose, 211 Pa. Superior Ct. 295, 235 A.2d 462 (1967). There we said: "The Commonwealth has appealed. Since appellee has not filed a motion to quash, we will assume that the suppression order will substantially handicap the Commonwealth and hear the appeal." Id., 211 Pa. Superior at 296, 235 A.2d at 463. The next year we decided Commonwealth v. Smith, 212 Pa. Superior Ct. 403, 244 A.2d 787 (1968). There, without reference to whether a motion to quash had or had not been filed, we quashed the appeal because we determined from the record that despite the suppression order, the Commonwealth still had enough evidence so as not to be substantially handicapped.
In these cases, as well as in others, e.g., Commonwealth v. Payton, 212 Pa. Superior Ct. 254, 243 A.2d 202 (1968); Commonwealth v. Hernley, 216 Pa. Superior Ct. 177, 263 A.2d 904 (1970), cert. denied, 401 U.S. 914, 91 S.Ct. 886, 27 L.Ed.2d 813 (1971), there was no indication of any disagreement, either about the propriety of the appeals, or about how that propriety was to be determined.
This harmony did not continue. In Commonwealth v. Thorne, 223 Pa. Superior Ct. 122, 299 A.2d 370 (1972), four
[ 311 Pa. Super. Page 274]
judges held that an appeal should be quashed because the Commonwealth had admitted at oral argument that it was not substantially handicapped by the suppression order, and that admission was supported by the record. The three dissenting judges refused to rely on a memory of what had been said at oral argument; in their opinion, in the absence of a motion to quash, a Commonwealth appeal should be heard unless the record affirmatively showed the availability to the Commonwealth of other evidence. The division within the court became more sharply stated in Commonwealth v. Deren, 233 Pa. Superior Ct. 373, 337 A.2d 600 (1975). There four judges said, "[W]hen the District Attorney from one of the counties of this Commonwealth directs an appeal from the suppression of evidence, we must accept such an appeal as the Commonwealth's good faith certification that the case will be terminated or substantially prejudiced by such an order, and [we should] determine only if the suppression was proper." Id., 233 Pa. Superior at 376-377, 337 A.2d at 602. The two dissenting judges refused to accept this formulation and, applying the approach first taken in Commonwealth v. Smith, supra; see also Commonwealth v. Kloch, 230 Pa. Superior Ct. 563, 327 A.2d 375 (1974), said that they would find from the record that the Commonwealth was not substantially handicapped because enough other evidence was still available to it, and would therefore quash the appeal.
In Commonwealth v. DeFelice, 248 Pa. Superior Ct. 516, 375 A.2d 360 (1977), the opinions were essentially as they had been in Commonwealth v. Deren, only what had been the dissent in Deren became the majority in DeFelice, and the appeal was quashed. However, in Commonwealth v. Trefry, 249 Pa. Superior Ct. 117, 375 A.2d 786 (1977), which was filed the same day as DeFelice, the majority again took the position of the majority in Deren.
The procedure established by Kunkel and Martz represented an attempt to achieve a compromise of these conflicting opinions. On the one hand, it seemed wrong to say that we must take jurisdiction and hear an appeal simply because
[ 311 Pa. Super. Page 275]
the party appellant had filed the appeal. On the other hand, it seemed right to presume that when the Commonwealth did appeal, it appealed believing in good faith that the order suppressing evidence terminated or substantially handicapped the prosecution. Besides, how could we tell whether the Commonwealth was appealing in good faith? Wasn't the judgment that a suppression order substantially handicapped the prosecution a subjective one, which would differ from one district attorney to another? The reasoning behind the Kunkel -- Martz compromise was that by requiring the Commonwealth to explain, briefly, why the order was appealable, we could if not eliminate at least diminish the chance that an appeal reflected an unduly subjective, or unreasonable, judgment.
Plainly, however, the compromise was an uneasy one. For what, really, was the difference between accepting an appeal without questioning its propriety, as in Deren and Trefry, and accepting an appeal without questioning its propriety, so long as the Commonwealth stated in its brief that the appeal was proper? Also, our application of the compromise was inconsistent. If the Commonwealth made the required statement, we accepted the appeal and considered the suppression order on its merits. See, e.g., Commonwealth v. Burton, 292 Pa. Superior Ct. 73, 436 A.2d 1010 (1981). But if the Commonwealth failed to make the required statement, sometimes we quashed the appeal, e.g., Commonwealth v. Montgomery, 292 Pa. Superior Ct. 32, 436 A.2d 705 (1981), while other times we permitted the Commonwealth to make a belated statement, e.g., Commonwealth v. Marzel, 291 Pa. Superior Ct. 553, 436 A.2d 639 (1981).
After reflecting upon our thrashing about, and re-examining the law, we have reached three conclusions.
Our first conclusion is that Commonwealth v. Trefry, supra, and Commonwealth v. Deren, supra, must be overruled, if, indeed, they have not already been overruled subsilentio.
[ 311 Pa. Super. Page 276]
have jurisdiction, whether, that is, the order is appealable, we are accepting an interested litigant's unsupported assertion.
Our third conclusion is only a different way of stating our first two. It is as follows: When confronted with a Commonwealth appeal from an order suppressing evidence, we must determine for ourselves whether the order is appealable -- whether it terminates or substantially handicaps the prosecution; and we must make that determination on the basis of the record, and on that basis alone. This conclusion is consistent with, and derives from, settled principles. With respect to the first part -- that we must determine for ourselves whether the order is appealable -- we have already cited authority that "[t]he finality of an order is a judicial conclusion." Bell v. Beneficial Consumer Discount Company, supra; Pugar v. Greco, supra; T.C.R. Realty, Inc. v. Cox, supra; Toll v. Toll, supra; Gordon v. Gordon, supra. With respect to the second part -- that we must make that determination on the basis of the record alone -- we have repeatedly held that in deciding a case, we will not consider any statement not supported by facts of record. General Accident Fire & Life Assurance Corp., Ltd. v. Flamini, 299 Pa. Superior Ct. 312, 445 A.2d 770 (1982); Anmuth v. Chagan, 295 Pa. Superior Ct. 32, 440 A.2d 1208 (1982); Commonwealth v. Rini, 285 Pa. Superior Ct. 475, 427 A.2d 1385 (1981).
In addition, our third conclusion is consistent with the Supreme Court's practice. As we have already noted, the Court, in deciding Bosurgi, did not address the question of how an appellate court is to determine whether an order suppressing evidence terminates or substantially handicaps the prosecution. However, in practice the Court has always made that determination on the basis of the record, and on that basis alone. That is what it did in Bosurgi. In Commonwealth v. McDade, 462 Pa. 414, 416 n. 1, 341 A.2d 450, 451 n. 1 (1975) cert. denied, 424 U.S. 909, 96 S.Ct. 1102, 47 L.Ed.2d 312 (1976), the Court specifically referred to the record ("clear from the record" that suppression will handicap
[ 311 Pa. Super. Page 278]
prosecution). It also did in Commonwealth v. Milton, 461 Pa. 535, 538 n. 1, 337 A.2d 282, 284 n. 1 (1975) ("record establishes" that suppression will handicap prosecution). It is true that in some cases the Court has not specifically acknowledged the record as the basis of its determination, Steding v. Commonwealth, 480 Pa. 485, 391 A.2d 989 (1978); Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513 (1974), but nothing in those cases suggests that the Court went outside the record. It is also true that the Court has cited Kunkel, once, in a footnote. Commonwealth v. Nazarovitch, 496 Pa. 97, 101 n. 1, 436 A.2d 170, 172 n. 1 (1981). We do not, however, understand that citation as approving the Martz -- Kunkel procedure; the Court made no reference to that procedure, and only cited Kunkel in conjunction with Bosurgi as authority for the proposition that a suppression order may be a final order.
We recognize that the three conclusions we have formulated do not embrace every possible sort of Commonwealth appeal from a suppression order. It is easy to imagine an appeal where it is not apparent from the record that the order terminates or substantially handicaps the prosecution, and yet where in fact it will. Suppose, for example, the order suppresses a gun. The record may disclose that the Commonwealth still has a great deal of other evidence, including eye witnesses to the crime. Thus, on the basis of the record alone we could not say that the suppression of the gun either terminated or substantially handicapped the prosecution. Yet the district attorney may know facts not of record that persuade him, and, if we knew them, would persuade us, that the suppression does substantially handicap the prosecution. For example, the eyewitnesses may all have criminal records, so that the jury may very well not believe them, and the gun may be the basis of powerfully incriminating ballistic evidence. Under Commonwealth v. Trefry, supra, and Commonwealth v. Deren, supra, the Commonwealth's appeal from the suppression order would lie; for under those cases we would regard ourselves as required to "accept [the] appeal as the Commonwealth's
[ 311 Pa. Super. Page 279]
good faith certification" that the prosecution was substantially handicapped. Even under Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, or so it would seem, the appeal would lie, so long as the Commonwealth explained in its brief why it believed the prosecution was substantially handicapped; to be sure, by referring to the witnesses' criminal records and the consequent need for ballistic evidence, the explanation would go outside the record; but it would not be inconsistent with the record. Today, however, we overrule all of these cases.
We also recognize that a forceful argument may be made that as a matter of policy the Commonwealth should be permitted to appeal a suppression order in the sort of case we have just supposed.*fn2 As the Supreme Court observed in Bosurgi, if the Commonwealth is forced to go to trial without the suppressed evidence and the result is an acquittal, the case is over. This is equally true, whether the substantial handicap is apparent on the record, or is not apparent but nevertheless exists. However, if such a policy is to be implemented, it must be by the Supreme Court. We have no power to enlarge our jurisdiction by holding appealable an order that precedent establishes is not appealable. Toll v. Toll, supra (Gurnick v. Government Employees Insurance Co., 278 Pa. Superior Ct. 437, 420 A.2d 620 (1980), overruled). The Supreme Court however, does have that power, 42 Pa.C.S.A. §§ 1701, 5105, which it may exercise, and has exercised, by the promulgation of rules defining when an order, although interlocutory, is appealable, Pa.R.A.P. 311. For our part, we are satisfied that our decision today conforms to the law. We leave to the Supreme Court whether the law should be changed.
Having decided when a suppression order is appealable, we may now examine the two orders, and, if they are appealable, consider whether the evidence they suppressed was properly suppressed.
[ 311 Pa. Super. Page 280]
Each of the cases before us involves possession of a controlled substance. In Commonwealth v. Lapia, the defendant, appellee here, is charged, among other charges, with possession of, and possession with intent to deliver, three bags of cocaine, which were seized in a search conducted at the Pittsburgh airport. In Commonwealth v. Dugger, the defendant, appellee here, is charged with the possession of marijuana, which was seized in a search conducted inside the Chester County Farms Prison. In each case the lower court ordered the controlled substance suppressed as evidence.
The facts of each case will be stated more fully below. Even from the little we have said so far, however, it is apparent that the record discloses that in each case the suppression order terminates the prosecution: the Commonwealth cannot prove a defendant's possession of a controlled substance if it cannot prove that it took the substance from the defendant. We therefore hold both orders appealable. The fact that in both cases the Commonwealth failed to comply with the procedure established by Commonwealth v. Martz, supra, and Commonwealth v. Kunkel, supra, is immaterial, those cases being today overruled.
Commonwealth v. Lapia*fn*
When we review an order suppressing evidence, we are of course not bound by the lower court's conclusions of law. We are bound, however, by the court's findings of fact, if those findings are supported by the record. See e.g., Commonwealth v. Davis, 491 Pa. 363, 421 A.2d 179 (1980); Commonwealth v. Webb, 491 Pa. 329, 421 A.2d 161 (1980); Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980); Commonwealth v. Williams, 287 Pa. Superior Ct. 19, 429 A.2d 698 (1981). We have therefore "refused" "time and
[ 311 Pa. Super. Page 281]
again" to substitute our own findings for those of the suppression court, Commonwealth v. Davis, supra 491 Pa. at 372, 429 A.2d at 181, especially where credibility is at issue, Commonwealth v. Stamm, 286 Pa. Superior Ct. 409, 429 A.2d 4 (1981); Commonwealth v. Butch, 257 Pa. Superior Ct. 242, 390 A.2d 803 (1978) (court equally divided on other grounds), remanded on other grounds, 487 Pa. 30, 407 A.2d 1302 (1979). Mindful of this scope of review, we now turn to a discussion of the facts.
Appellee was arrested on August 8, 1977, and charged with possession of a controlled substance, possession with intent to deliver a controlled substance, criminal conspiracy, and possession of a prohibited offensive weapon. Her arrest was based on the search of a package containing cocaine, which was mailed to her by one Mr. Field. The package had been sent from the Miami airport to the Pittsburgh airport through the "Sprint" delivery service of Eastern Airlines. At the Miami airport, without appellee's knowledge, the package had been opened and its contents searched by an employee of Eastern Airlines, one Mr. Strachan. The testimony regarding the circumstances of this search was in conflict. Specifically, the conflict was between Mr. Strachan's testimony and the testimony of one Detective Sadtler of the Dade County Police, and concerned the extent to which the police had participated in the search.
The lower court, after hearing the testimony, made findings of fact and conclusions of law, as required by Pa.R.Crim.P. 323(i), and submitted a thorough opinion in support of its order granting appellee's motion to suppress. The court's findings and conclusions were as follows:
1. That a meeting was held between members of the Dade County Police Department and employees of Eastern Airlines wherein the latter were informed of the shipment of narcotics via Eastern Sprint;
2. That Eastern employees were given a set of guidelines by the Dade County Police to implement in ferreting out the flow of narcotics;
[ 311 Pa. Super. Page 2823]
. That two days subsequent to said meeting, as a result of implementing said guidelines, an Eastern employee suspected that a wrapped package delivered for shipment might contain narcotics and so informed his supervisor, Mr. Strachan.
4. That the package would never have been suspected of containing narcotics but for the meeting and guidelines instructed by the Dade County Police;
5. That Mr. Strachan conveyed said suspicions to the Dade County Police who in turn told Mr. Strachan that he had the authority to open the package;
6. That in reliance upon said direction, Mr. Strachan opened said package and notified the Dade County Police of the contents thereof;
7. That the actions of the Eastern employees in opening and searching the package were, in effect, the actions of the Dade County Police;
8. That Detective Sadtler opened the lid of the package after being informed of its contents after being summoned to Mr. Strachan's office;
9. That the contents were field tested, preliminarily determined to be cocaine, rewrapped and sent via Sprint to the intended destination in Pittsburgh;
10. That Detective Sadtler notified Sergeant James Miles of DEA by telephone in Pittsburgh of the suspected contents of the package;
11. That based sole[l]y upon said information, a search warrant was issued for said package;
12. That said search warrant was executed by Deputy Sheriff McDaniel after Defendant received said package at the Greater Pittsburgh International Airport, and;
13. That pursuant to said search and seizure Defendant was arrested, searched incident thereto, and made statements as a result of said arrest.
1. That Defendant has standing to raise issues regarding the violations of her Fourth Amendment rights under the U.S. Constitution;
[ 311 Pa. Super. Page 2832]
. That Mr. Strachan's actions as agent of the Dade County Police invoked the protections afforded by the Fourth Amendment of the United States Constitution;
3. That no probable cause existed for the search of the package by Mr. Strachan;
4. That no exigent circumstances existed which precluded the necessity for obtaining a search warrant;
5. That Detective Sadtler lacked probable cause in searching the package upon arriving at the office of Mr. Strachan;
6. That no exigent circumstances existed which precluded the necessity of Detective Sadtler from obtaining a search warrant prior to opening the lid of the package and examining its contents;
7. That the search warrant issued in Pittsburgh by Allegheny County Authorities was based on illegally seized evidence;
8. That the arrest of Defendant subsequent to the search and seizure of the package and the items in Defendant's possession and statements made by Defendant simultaneous therewith were fruits of the illegal search and seizure and illegally obtained. Slip op. at 17-20.
The Commonwealth challenges both the lower court's findings of fact and its conclusions of law. It will be convenient to consider, first, the Commonwealth's challenge to the findings, and next, its challenge to the conclusions.
In challenging the lower court's findings, the Commonwealth argues that the search was a private search, outside the Fourth Amendment, because it was initiated and conducted by Mr. Strachan, a private individual. According to the Commonwealth, "police participation occurred only after the initial search by an employee [Mr. Strachan] in the course of his employment." Appellant's Brief at 9.
Under Pa.R.Crim.P. 323(h), the Commonwealth had the burden of establishing that the cocaine was not seized in violation of appellee's rights. Among the witnesses called
[ 311 Pa. Super. Page 284]
by the Commonwealth were Mr. Strachan and Detective Sadtler. Their testimony ...