Appeal from the Order of the Court of Common Pleas, Criminal Division, of Cambria County at No. 1009, 1986.
Theresa Homady, Assistant District Attorney, Ebensburg, for appellant.
Wieand, Montemuro and Popovich, JJ. Montemuro, J., files a concurring opinion. Wieand, J., files a dissenting opinion.
[ 374 Pa. Super. Page 443]
This is an appeal from the order of the Court of Common Pleas of Cambria County granting a motion to suppress and "sustaining the appeal from summary conviction" by the Commonwealth. We quash.
Before addressing the merits of the Commonwealth's appeal, we must decide whether the order appealed is final. In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382, (1985), the Supreme Court, in the course of discussing the sine qua non for an appeal from an order granting a motion to suppress, reinforced what was intended by Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963), cert. denied, 375 U.S. 910, 84 S.Ct. 204, 11 L.Ed.2d 149 (1963). In doing so, it wrote:
The Superior Court when directed to hear an appeal is required to do so, under the circumstances we direct.*fn5
As the final appellate court we determine both the propriety of hearing an appeal and direct the method it shall be heard. That we directed [in Bosurgi ], in the clearest fashion, that the Superior Court is required to hear a Commonwealth appeal from a suppression hearing, . . . cannot be doubted.
[In Bosurgi, t]he right of appeal was granted the Commonwealth to satisfy a question of elemental fairness; providing the Commonwealth with what might be their only appeal. To lament that the [Superior] court was not told under what circumstances the suppression order substantially handicaps or terminates a prosecution is simply fatuous and evasive . . . . They were simply told [by the Supreme Court] to hear and determine the validity of a suppression order when the Commonwealth pleads a substantial handicap or termination. That certification is not contestable. It, in and of itself, precipitates and authorizes the appeal. The formal purpose of the Superior
[ 374 Pa. Super. Page 444]
Court is to maintain and effectuate the decisional law of this Court as faithfully as possible. In some instances, this being one, we direct the grounds for appeal.
Therefore, the Commonwealth's appeal of a suppression order is proper as an appeal from a final order when the Commonwealth certifies in good faith that the suppression order terminates or substantially handicaps its prosecution. Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.
Given the prerequisite of the certification [having been met instantly,] we hold that the Commonwealth has an absolute right of appeal to the Superior Court to test the validity of a pre-trial suppression order.
506 Pa. at 543-46 & n. 5, 486 A.2d at 385, 386 & n. 5 (Emphasis added).
As stated quite clearly in Dugger, the Superior Court, as an intermediate appellate court, acts at the "direction" of the Pennsylvania Supreme Court when it comes to hearing an appeal and under ...