Appeal from the Orders of the Court of Common Pleas, Monroe County, Criminal Division, at No. 665 and 665A of 1981
David Christine, Assistant District Attorney, Stroudsburg, for Com., appellant.
Marc R. Wolfe, Stroudsburg, for appellee.
Spaeth, President Judge, and Wickersham, Brosky, Cirillo, Beck, Popovich and Hester, JJ. Beck, J., files a concurring opinion. Spaeth, President Judge, files a concurring and dissenting opinion.
[ 347 Pa. Super. Page 280]
This appeal is from the pre-trial suppression of certain statements. Appellant, the Commonwealth, contends that the fact that the witnesses were put under hypnosis should not render inadmissible their pre-hypnotic statements. We agree and, subject to the strictures hereinafter detailed, reverse the suppression and remand for trial.
An auxiliary issue is the method to be applied by the courts in determining whether a suppression order substantially handicaps or terminates the prosecution and is, therefore, interlocutorily appealable. See Commonwealth v. Lapia, 311 Pa. Super. 264, 457 A.2d 877 (1983). The Pennsylvania Supreme Court has, since Lapia, made suppression orders appealable on the bare allegation of the District Attorney that the prosecution is substantially handicapped. Thus, that auxiliary issue is no longer before us.*fn1
Having established that the instant suppression order is appealable, the next question is whether the testimony of the hypnotized witnesses was properly suppressed.
The facts and procedural history of this case are as follows:
On September 22, 1981, appellee, Darlene Alice Mehmeti, was bound for court on charges of Criminal Homicide,*fn2 Crimes Committed With Firearms,*fn3 Aggravated Assault*fn4 and Recklessly Endangering Another Person.*fn5 Pursuant to appellee's supplemental omnibus pre-trial motion to suppress, inter alia, the complete testimony of four prosecution witnesses whose memories were hypnotically-refreshed, the Court of Common Pleas of Monroe County
[ 347 Pa. Super. Page 281]
conducted a pre-trial hearing on December 21, 1981. Following the testimony of two investigating officers and the hypnotist, the lower court, in two separate Orders of Court, dated January 26, 1982 and February 4, 1982, deemed the complete testimony of prosecution witnesses, Rosemary Kessler, Scott James Kessler, Linda Landis, and Stephen J. Landis, inadmissible for trial due to their earlier submission to hypnosis. Appellant/Commonwealth filed this appeal from the aforementioned Orders.*fn6
The relevant facts surfaced at the preliminary hearing conducted on September 22, 1981. Stephen J. Landis and his wife, Linda, of Telford, Pennsylvania, were driving northerly on Route 209 on August 6, 1981. As they passed Dutchman's Gas Station in East Stroudsburg, Monroe County, between 9:00 p.m. and 10:00 p.m., Mr. Landis heard three firecracker-type disturbances originating at the gas station pumps; Landis turned his head quickly to the pumps and observed the attendant fall to the ground. He identified no one; however, he detected a "mid-60's", dull-blue Chevrolet Impala parked parallel to both the pumps and highway. Mrs. Landis observed nothing.
Suspecting the mere romp of adolescents, Mr. and Mrs. Landis continued their journey to Dingman's Falls. The next morning, they first learned of the death of George Coco, the Dutchman's gas station attendant.
Prosecution witness, Scott James Kessler, and his wife, Rosemary, resided in East Stroudsburg, some 200 yards from Dutchman's Gas Station, at the time of George Coco's death. At approximately 9:40 p.m. on August 6, 1981, Mr. and Mrs. Kessler purchased gasoline at Dutchman's, chatted briefly with the victim and drove home. A few minutes after arriving home, while lifting barbells on his front porch, Mr. Kessler heard several, firecracker-type sounds emanating from Dutchman's. From a better vantage point
[ 347 Pa. Super. Page 282]
at his bedroom window, Kessler perceived a cloud of white smoke hovering above and between the two gas pump islands. He also observed a white Ford pick-up truck driving southbound on Route 209. Although he immediately called the gas station and received no answer, Kessler was not alarmed; he suspected that the victim was playing with firecrackers and was away from the phone while servicing customers. A few moments later, however, he observed the flashing lights of police vehicles and proceeded quickly to the station. Upon arriving at the station a few minutes before 10:00 p.m., Kessler learned that Coco was the victim of ...