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COMMONWEALTH PENNSYLVANIA v. JAMES MELVIN SMITH (12/05/91)

filed: December 5, 1991.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
JAMES MELVIN SMITH



Appeal from the Order in the Court of Common Pleas of Blair County, Criminal Division, No. C.A. 789 of 1990 (AL)

COUNSEL

Paula Aigner, Asst. Dist. Atty., Hollidaysburg, for Com., appellant.

Terry W. Despoy, Altoona, for appellee.

Tamilia, Kelly and Montgomery, JJ.

Author: Tamilia

The Commonwealth appeals from the February 28, 1991 Order of the trial court excluding from trial scientific evidence pertaining to the results of DNA testing.

On April 19, 1990, appellee was charged with rape, statutory rape and corruption of minors. The crimes were allegedly perpetrated against the eight year old step-daughter of the appellee. At a preliminary hearing on June 29, 1990, the district attorney's office learned that seminal fluid was identified on the dress of the victim. Although DNA

[ 410 Pa. Super. Page 387]

    testing was supposed to be initiated at that time, it was not until the first week of October, 1990, the district attorney's office became aware that blood samples from the appellee, required for DNA testing, had not been obtained. The blood samples used in the testing, however, were not taken until January 15, 1991. On February 25, 1991, about one week before the trial was to begin, the Commonwealth advised defense counsel they intended to use at trial a summarized preliminary report of the DNA test results. When the district attorney's office received the preliminary report, they immediately electronically transmitted a copy of the report to appellee's counsel. The Commonwealth did not have the full report at the time of the suppression hearing. On February 27, 1991, appellee filed a pretrial motion seeking suppression of the DNA evidence, or in the alternative, the grant of a continuance and appointment of an expert to analyze the DNA results. The trial court granted appellee's suppression motion, finding the Commonwealth clearly violated the mandatory disclosure requirements of Pa.R.Crim.P. 305 B.*fn1 The trial court also stated the Commonwealth's appeal was not proper because the notice of appeal did not contain a good faith certification that the exclusion of the DNA report terminated or substantially handicapped the prosecution. See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

The Commonwealth argues and we agree the trial court improperly suppressed the DNA report based upon an

[ 410 Pa. Super. Page 388]

    erroneous application of Rule 305 B. The record is insufficient to support the accusations made by the trial court of deliberate delay on the part of the Commonwealth. Additionally, suppressing the DNA evidence would substantially interfere with the Commonwealth's attempts to prosecute appellee, since, if the child was found to be incompetent to testify, the suppressed evidence would be the only evidence linking appellee to the crime.

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. Dugger, supra. As noted above, the trial court held this appeal to be improper in that the notice of appeal did not contain such a good faith certification.

There is no explicit requirement in Dugger or its progeny that the certification be made specifically in the notice of appeal. In Commonwealth v. Jenkins, 401 Pa. Super. 580, 585 A.2d 1078 (1991), this Court stated: "The Commonwealth, in its brief to us, asserts that the grant of the motion to suppress effectively terminates its prosecution of the defendant. As such, this case is properly before us for review." Id., 401 Pa. Superior Ct. at 581 n. 1, 585 A.2d at 1079 n. 1 (citations omitted). In Commonwealth v. Martinson, 368 Pa. Super. 130, 533 A.2d 750 (1987), we stated: "[a]n order suppressing evidence is appealable when it is apparent from the record that the order terminates or substantially handicaps the prosecution." Id., 401 Pa. Superior Ct. at 133 n. 1, 533 A.2d at 751 n. 1 (citation omitted). Based upon the record and the fact the only other evidence linking appellee to the crime is the testimony of ...


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