Commonwealth v. Rosario

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

CASTILLE, Justice.

The sole issue before this Court is whether appellant is entitled to an appeal as of right to the Superior Court from the order of the Court of Common Pleas reversing a municipal court’s order granting Appellant’s suppression motion. The Superior Court held that the Court of Common Pleas reversal of the suppression order was interlocutory and, therefore, quashed the appeal. For the reasons expressed herein, we affirm the order of the Superior Court.

The facts are that Appellant was arrested on October 30, 1989 and charged with the possession of a controlled substance. Appellant made an oral motion to suppress physical evidence pursuant to Pa.R.Crim.P. 6005(a), rather than in writing. This Court would initially note that while the general rule is that all motions to suppress must be in writing and filed with the court of record ¹, the Municipal Court of Philadelphia is excepted from the general filing procedures. To the extent Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443, n. 3 (1994), indicated a general disapproval of such procedures, we note that we have nevertheless expressly approved of oral suppression motions in the municipal courts of Philadelphia County as a means to promote the prompt and expeditious disposal of cases in that county. Pa.R.Crim.P. 6005(a).

Appellant’s motion was granted by the Philadelphia Municipal Court,² and the Commonwealth, certifying in good faith that the suppression order substantially handicapped the prosecution, appealed the suppression order to the Philadelphia Court of Common Pleas.³ The Court of Common Pleas sitting as an appellate court, reversed the suppression order and remanded the case to the municipal court for trial.⁴ Appellant appealed the order of the Court of Common Pleas to the Superior Court (Johnson, Ford-Elliott, and Hoffman, JJ.) which quashed the appeal as an improper attempt to gain interlocutory review of a suppression order. Commonwealth v. Rosario, 419 Pa.Super. 481, 615 A.2d 740 (1992).

Appellant argues that the decision of the Court of Common Pleas constituted a “final” order from which he enjoys an automatic right of appeal to the next appellate level, the Superior Court. A pretrial order is final for purposes of appellate review if it serves to put the litigants out of court by ending the litigation or entirely disposing of the case. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985); Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972). See also Pa.R.App.P. 341(b) (Definition of Final Order). Since the order of the Court of Common Pleas did not dispose of the matter or effectively terminate the litigation, the order, by definition, is necessarily interlocutory. See Commonwealth v. Smith, 518 Pa. 524, 527, 544 A.2d 943, 944-45 (1988) (reaffirming holding in 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), that an appeal from a suppression order, although interlocutory, is a right enjoyed by the Commonwealth). Therefore, the Superior Court properly quashed the appeal.

Appellant relies upon the following footnote in Commonwealth v. Baker, 518 Pa. 145, 541 A.2d 1381 (1988), in support of his proposition that the order was not interlocutory:

We find no merit in the Commonwealth’s contention that an appeal taken from an appellate reversal of a suppression order is interlocutory and that the instant appeal should therefore be quashed. Appeals taken by defendants following appellate reversals of orders suppressing evidence are clearly cognizable by this Court. See Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983); Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963).

Baker, 518 Pa. at 146, n. 1, 541 A.2d at 1382, n. 1. To the extent this language in Baker suggests that appellate reversals of suppression orders are not interlocutory, Baker is overruled. While there may be instances in which an appellate court, in exercise of its discretionary powers, may entertain a challenge to the lower court’s reversal of a suppression order if such a claim were properly raised before it in a petition for allowance of appeal, such is not the case here. See e.g., Pa.R.A.P. 1114. Here, a petition for allowance of appeal was not filed. The Superior Court was well within its authority to quash appellant’s appeal; we will not disturb its ruling.

We find equally unpersuasive appellant’s arguments that the Superior Court should be required to review the ruling based upon judicial economy. Indeed, we find the contrary to be true for once appellant proceeds to trial, he may very well be acquitted thereby obviating the need for any appellate court’s review of the suppression issue. In the event a verdict of guilty is returned, appellant then will be afforded the full panoply of appellate rights. His due process rights will not be violated because the Superior Court declines to hear his potentially moot claim pre-verdict.

Accordingly, the matter is remanded to the Municipal Court of Philadelphia County for proceedings consistent with this decision.

CAPPY, J., files a concurring opinion. MONTEMURO, J., files a concurring opinion in which NIX, C.J., and ZAPPALA and CAPPY, JJ., join. MONTEMURO, J., is sitting by designation.

1 . Pa.R.Crim.P. 307 and 9020; 42 Pa.C.S. § 2765(a)(1).

2 . Order dated July 12, 1990, Municipal Court of Philadelphia, No. M.C. 89-10-3862. Trial was conducted in the Philadelphia Municipal Court pursuant to 42 Pa.C.S. § 1123(a)(2) which provides:

(a) General rule. — Except as otherwise prescribed by any general rule adopted pursuant to section 503 (relating to reassignment of matters), the Philadelphia Municipal Court shall have jurisdiction of the following matters:

(2) Criminal offenses by any person (other than a juvenile) for which no prison term may be imposed or which are punishable by imprisonment for a term of not more than five years, including indictable offenses under Title 75 (relating to vehicles)....

3 . See Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (an appeal of the grant 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); Commonwealth v. Bosurgi, 411 Pa. 56, 64, 190 A.2d 304, 308 (1963) (practical effect of an order granting the suppression of evidence gives to the order such an attribute of finality as to justify the grant of the right of appeal to the Commonwealth). On May 6, 1992, effective July 6, 1992, Pa.R.App.P. 311 was amended to permit an interlocutory appeal as a matter of right to the Commonwealth in instances where the Commonwealth asserts that the order will terminate or substantially handicap the prosecution. Pa.R.App.P. 311(d).

4 . Order dated July 15, 1991, Court of Common Pleas of Philadelphia County, Criminal Division, No. M.C. 8910-3862, M.R. 90-007764. Courts of common pleas have jurisdiction to review orders of the Philadelphia Municipal Court and the minor judiciary pursuant to 42 Pa.C.S. §§ 932 and 1123(a)(2).