Philadelphia District, No. 1687 October Term, 1979, No. 1718 October Term, 1979, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County at No. 269-79.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellant (at No. 1687) and for Commonwealth, appellee (at No. 1718).
Martin King, New Hope, for appellant (at No. 1718) and for appellee (at No. 1687).
Hester, Cavanaugh and Van der Voort, JJ.
[ 319 Pa. Super. Page 15]
This is an appeal and cross appeal of a suppression order issued by the Court of Common Pleas, Montgomery County. The Commonwealth appeals from the lower court's suppression order granting appellee's motion to suppress all of the testimony of Pennsylvania State Police Agent Denise Duez, who was an undercover police officer in the case, and the testimony of Jeffery Knoll, an alleged co-conspirator in this matter. In addition the defendant,*fn1 Phillip York, filed a cross appeal claiming that the charges should be dismissed with prejudice. For the reasons discussed below, we reverse the suppression order of the lower court and remand for trial.
The initial issue to be determined is whether the suppression order is appealable. This court recently stated in Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983) that "[w]hen confronted with a Commonwealth appeal from an order suppressing evidence, we must first 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."*fn2 Applying the test
[ 319 Pa. Super. Page 16]
to this case we conclude that the suppression order is appealable. The appellee was charged with various drug offenses. Based upon our review of the record it is apparent the Commonwealth would be at least substantially handicapped without the testimony of Agent Duez and alleged coconspirator Jeffery Knoll. The testimony of Agent Duez and Jeffery Knoll is vital and necessary for the prosecution to prove the substance and character of the charges against the appellee.
The facts giving rise to the case at hand are as follows. During the fall of 1978, Pennsylvania State Police Agent Denise Duez was acting as an undercover agent for the Region One Strike Force making various purchases of alleged controlled substances. During the course of this undercover work the appellee was arrested and charged with the aforementioned crimes in conjunction with four transactions.*fn3
The crux of this appeal is based upon an investigative technique employed by Agent Duez. She would record on a cassette tape all of the details she had memorized from the course of a transaction. She would do this immediately following the completion of a purchase. In turn, within one day to one week later she would use these personal narratives in the preparation of her official written report. Subsequently she would tape over the same recordings with the consequence of erasing the previously recorded notes relating to other transactions. At the preliminary hearing, as well as the suppression hearing, Agent Duez did not have a comprehensive recollection of all the details surrounding the events leading to appellee's arrest. Therefore she found it necessary to rely upon the previously mentioned written police reports. Agent Duez admitted that in making her official report she included only the details from her taped notes which she determined were relevant to the transaction.
[ 319 Pa. Super. Page 17]
She also testified that she had included in her tape recorded notes impressions of her interactions with alleged co-conspirator, Jeffery Knoll, who was scheduled to ...