No. 66 W.D. Appeal Docket 1983, Appeal from the Order of the Superior Court at No. 1070 Pittsburgh 1980, dated June 3, 1983, Reversing the Order of October 2, 1980, of the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC7902828,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring opinion. Hutchinson and Zappala, JJ., filed dissenting opinions.
This is the appeal of William David James from the Superior Court's Order reversing an Allegheny County Common Pleas Court's Order entered on October 2, 1980, by the Honorable Henry Smith, suppressing the in-court identification of Appellant.
Appellant was arrested on May 2, 1979, and charged with involuntary deviate sexual intercourse, indecent assault, terroristic threats, and simple assault, (18 Pa.C.S. Sections 3123(1), 3126(1), 2706, 2701(a)(1)).
On September 24, 1979, Appellant pled guilty to the charges filed against him, but on April 10, 1980, the trial court permitted him to withdraw his guilty plea.
On June 10, 1980, Appellant filed an omnibus motion for relief seeking to suppress the victim's testimony regarding her photo identification of Appellant, a composite drawing of Appellant made from the victim's description, the victim's preliminary hearing identification of Appellant, and future in-court identification of Appellant by the victim.
By its order of October 2, 1980, the Suppression Court denied Appellant's motion except as to the in-court identification, and the case proceeded to trial. Because the jury could not reach an unanimous verdict, the trial court discharged it on October 10, 1980. On October 29, 1980, the Commonwealth appealed that portion of the suppression court's order suppressing the victim's in-court identification, and requested a remand for a new trial. Superior Court
reversed and this appeal followed. We granted allocatur since, among other issues, the question of whether an appeal from a suppression order may be taken by the Commonwealth after a mistrial for manifest necessity is a novel one.
Appellant now argues that: 1) the Commonwealth should have appealed directly from the suppression order and prior to trial, 2) the Commonwealth's failure to appeal the suppression order prior to the commencement of trial constituted a waiver of its right to appeal it, and 3) the Superior Court erroneously ruled that the trial court abused its discretion in suppressing any in-court identification by the victim.
Orders entered by courts are subject to appellate review when two conditions are met. A final determination as defined by Pennsylvania Rule of Appellate Procedure 341*fn1 must be entered on record to trigger Pa.R.A.P. 903(a),*fn2 and the Appellant must have properly preserved on record the issue he wishes to challenge by first raising it before the trial court. Pa.R.A.P. 302.*fn3 These conditions are met in this appeal.
We long ago determined that the practical effects of an order granting the suppression of any evidence gives to that order such an attribute of finality as to justify the grant to the Commonwealth of a right to appeal. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d ...