Com. v. Putt, W. ( 2014 )

J-S50040-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
WILLIAM ANTHONY PUTT
Appellee No. 464 WDA 2014
Appeal from the Order entered March 11, 2014,
in the Court of Common Pleas of Cameron County,
Criminal Division, at No(s): CP-12-CR0000073-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 11, 2014
The Commonwealth appeals from the order granting the suppression
below, we quash.
The trial court made findings of fact as follows:
During the evening of May 28, 2013, various members of
the Pennsylvania State Police, including Corporal Theodore Race,
were called to investigate a noise complaint in the nature of loud
music emanating from a residence at 224 West Fourth Street in
Emporium, Pennsylvania. While in the course of investigating
the noise complaint, the troopers viewed various items of what
they believed to be contraband inside the residence and decided
to submit an application for the issuance of a search warrant.
Corporal Race stayed at the residence to secure it while the
other troopers prepared the search warrant application.
While Corporal Race remained on the porch of the
residence, Troopers Gerg and Miller appeared at the 224 West
Fourth Street address at about 11:30 p.m.
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During the time Corporal Race was on the porch of the 224
West Fourth Street residence and after the arrival of Troopers
Gerg and Miller, a green 1995 Chevrolet pickup truck drove past
the residence on multiple occasions and the driver and sole
occupant yelled unspecified comments towards the vicinity of the
troopers.
After seeing the truck pass by several times, Corporal Race
directed the beam of his flashlight at the pickup and identified
the driver as [Appellee] William Anthony Putt.
[Appellee] eventually stopped his travels up and down
West Fourth Street and parked the pickup along the curb about
50 feet from the location of the troopers.
After exiting the truck, [Appellee] walked towards the
troopers, with Trooper Gerg engaging [Appellee] first and
directing his flashlight beam at [Appellee] since it was dark and
the area was otherwise illuminated by ambient light from
streetlights or nearby residences.
There was nothing unusual noted about the operation of
the pickup truck other than the frequency in which it passed the
toward the troopers.
When in close proximity to the troopers, [Appellee]
stopped about three or four feet from Trooper Gerg and asked
With his flashlight beam cast on [Appellee], Trooper Gerg
d to be constricted.
Trooper Gerg also thought [Appellee] was somewhat agitated ...
He also noted no odor of alcoholic beverage emanating from
[Appellee].
Trooper Gerg inquired of [Appellee] whether he was taking
any medication, and [Appellee] responded that he took
medication for anxiety.
Corporal Race, who has received training in recognition of
the effects of imbibing of controlled or counterfeit substances,
was within earshot of [Appellee] and Trooper Gerg and
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overheard their initial conversation. He then approached
[Appellee] and after waiting about a minute and a half to two
be constricted.
Based solely on Trooper R
hat he took medication for
anxiety, Trooper Race requested that [Appellee] submit to field
sobriety tests.
perform the one-legged stand field sobriety test, but there was
no evidence presented whatsoever as to how the test was
administered or performed.
In addition to the one-legged stand test, Corporal Race
also conducted [horizontal gaze nystagmus] testing and
having ingested a controlled or counterfeit substance, although
pupils.
and the administration of field sobriety tests, [Appellee] was
arrested for driving after imbibing and taken to Elk Regional
Health Center in St. Marys, Pennsylvania for blood testing.
Trial Court Findings of Fact, 3/11/14, at 1-3; Affidavit of Probable Cause,
7/3/13.
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Appellee was charged with two counts of driving under the influence
and one count of careless driving.1 Appellee filed a suppression motion on
November 4, 2013, and following a hearing, the trial court on March 6,
2
This appeal followed. Both the
Commonwealth and the trial court have complied with Pa.R.A.P 1925.
The Commonwealth presents a single issue for our review:
WHETHER TWO STATE POLICEMEN, ONE A DRUG RECOGNITION
EXPERT, HAD REASONABLE GROUNDS PER § 1574 OF THE
MOTOR VEHICLE CODE TO BELIEVE A DRIVER WAS UNDER THE
INFLUENCE OF A CONTROLLED SUBSTANCE, SPECIFICALLY, A
NARCOTIC, AND SUBJECT HIM TO FIELD SOBRIETY TESTS
AFTER HE DROVE BACK AND FORTH NUMEROUS TIMES LATE AT
NIGHT PAST THEM WITH THE WINDOWS OPEN YELLING AT
THEM, PARKED THE VEHICLE IN FRONT OF THEM, EXITED AND
APPROACHED THEM AND IN AN AGITATED STATE EXHIBITING
CONSTRICTED PUPILS, DEMANDED TO KNOW WHY THE POLICE
WERE THERE, AND WHEN QUESTIONED, ADMITTED HE WAS
TAKING MEDICATION FOR ANXIETY?
Commonwealth Brief at 4.
eal from
whether we have jurisdiction. In Commonwealth v. Knoeppel, 788 A.2d
404 (Pa. Super. 2001) appeal denied, 806 A.2d 859 (Pa. 2002), we
explained:
____________________________________________
1
75 Pa.C.S.A. §§ 3802(d)(1)(ii), (d)(2), and 3714(a).
2
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The jurisdiction of this Court is generally confined to
appeals from final orders of the courts of common pleas. An
order is final if it effectively puts a litigant out of court; thus,
pretrial orders are ordinarily considered interlocutory and not
he final order rule exists
in orders of the trial court suppressing evidence the
Commonwealth appeal in a criminal case is governed by
Pennsylvania Rule of Appellate Procedure 311, which permits the
Commonwealth to take an interlocutory appeal as of right from a
pretrial suppression order when the Commonwealth certifies that
as a means of preventing frivolous appeals and appeals intended
***
[I]n Commonwealth v. Malinowski, 671 A.2d 674(1996), the Supreme Court clarified that the Commonwealth's
certification must appear in the notice of appeal [and] held that
failure to comply with the [311(d)] certification renders the
Commonwealth's responsibility in future appeals, the Court
specifically stated:
Thus, we require that in addition to the requirements
Procedure, the Commonwealth, when appealing a
suppression order, must include a statement, made
in good faith, that the suppression order terminates
or substantially handicaps its prosecution.
Shortly after the decision in Malinowski, Pa.R.A.P. 311(d) was
amended to reflect this requirement. The following year,
subdivision (e) was added to Pa.R.A.P. 904 to incorporate the
Supreme Court's mandate [and Pa.R.A.P. 904(e) now provides]:
When the Commonwealth takes an appeal pursuant
to Rule 311(d), the notice of appeal shall include
a certification by counsel that the order will
terminate or substantially handicap the prosecution.
Pa.R.A.P. 904(e) (emphasis added).
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Knoeppel, 788 A.2d at 406-407 (some citations omitted).
We concluded in Knoeppel
the requisite certification in its notice of appeal in accordance with Pa.R.A.P
t the
of the certification in the Criminal Docketing Statement or in the
Id. at 407(citation omitted). Consequently, w
action on March 14, 2014, that the order to which the appeal has sought to
be taken will either substantially handicap or terminate the prosecution.
Although the certification is required to be included in the notice of appeal
filed March 25, 2014, which references that the prosecution would be ended
(unnumbered).
Our independent review of the certified record
observation that the Commonwealth failed to include in its notice of appeal a
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includes a one-page document entitled Rule 311(d) certification, dated April
1, 2014, there is no indication that this document was filed with the lower
court, as it is not date-stamped, and does not appear in the certified record.
t become part of the certified record by simply
Commonwealth v. Bracalielly, 658 A.2d 755 (Pa. 1995). Moreover, in its
of the Rule 311(d) Certification at the time that the Notice of Appeal was
filed but would note that when this error was discovered at the time of
preparation and filing of the Docketing Statement, the same was forwarded
to and filed with the Superior Court, being annexed to the said Docketing
Given the foregoing, and in accordance with Knoeppel, supra(holding that it is fatal for the Commonwealth to fail to include the Pa.R.A.P
311(d) certification in its notice of appeal and subsequent inclusion does not
Appeal quashed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2014
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