J-S53026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

MONIQUE FISHER,

                            Appellee                   No. 85 MDA 2016


              Appeal from the Order Entered December 17, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0003101-2015


BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED SEPTEMBER 12, 2016

       The Commonwealth appeals from the order entered December 17,

2015, that granted Appellee Monique Fisher’s (“Fisher”) motion to suppress

evidence. After review, we are constrained to quash the Commonwealth’s

appeal.

       The trial court summarized the factual and procedural history of this

case as follows:

             On March 7, 2015, at approximately 2:33 am, Officer Marc
       A. Oxenford, of the West Reading Police Department, was
       traveling eastbound in the 200 block of Penn Avenue on routine
       patrol. In the area around Fourth Street and Penn Avenue,
       Officer Oxenford observed a 2004 white Chevrolet Ventura make
       a legal right turn into the West Reading restaurant parking lot, in
       Reading, Berks County, Pennsylvania.            Officer Oxenford
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*
    Former Justice specially assigned to the Superior Court.
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       observed the vehicle back into a space in front of the restaurant.
       He then saw [Fisher] pick up a bottle of the Moet and Chandon
       brand of champagne that was 750 milliliters. [Fisher] handed
       the bottle to the front seat passenger.            Based on his
       observations, the officer approached the driver and explained to
       her that he observed her drinking out of that alcoholic beverage.
       He then asked [Fisher] for her driver’s license, registration and
       proof of insurance.

             [Fisher] was charged by Criminal Information with one
       count of Driving under the Influence of Alcohol, in violation of 75
       Pa.C.S.A. § 3802(a)(1) and one count of Restriction on Alcoholic
       Beverages, in violation of 75 Pa.C.S.A. § 3809(a). On August
       25, 2015, [Fisher] through [her] attorney, filed a Motion to
       Suppress Physical Evidence and Statements. The hearing was
       held on November 23, 2015. [Fisher’s] motion was granted and
       docketed on December 17, 2015. On January 13, 2016, the
       Commonwealth filed a Notice of Appeal to the Superior Court,
       and amended it on January 29, 2016 to certify that this ruling
       terminated or substantially handicaps the prosecution of this
       case.[1]

Trial Court Opinion, 2/23/16, at 1-2. Both the Commonwealth and the trial

court complied with Pa.R.A.P. 1925.

       The Commonwealth presents the following issues for our review:

       A.    Did the trial court err in suppressing evidence flowing from
       a lawful mere encounter?

       B.    Alternatively, did the trial court err in suppressing evidence
       flowing from a lawful investigative detention, as precedent
       dictates that a reasonable mistake of law can give rise to
       reasonable suspicion?

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1
    “In a criminal case, under the circumstances provided by law, the
Commonwealth may take an appeal as of right from an order that does not
end the entire case where the Commonwealth certifies in the notice of
appeal that the order will terminate or substantially handicap the
prosecution.” Pa.R.A.P. 311(d).



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Commonwealth’s Brief at 4.

      Preliminarily, we must determine whether the Commonwealth has

perfected its right to appeal from the order in question. Fisher argues that

because the original notice of appeal did not include the requisite

certification under Pa.R.A.P. 311(d), and the amended notice was untimely

filed, we lack jurisdiction to hear this appeal.        Fisher’s Brief at 6-7.

Moreover, Fisher contends that the Commonwealth’s filing of an amended

notice of appeal without leave of court does not reinstate jurisdiction. Id. at

7-8. Neither the trial court nor the Commonwealth addresses this issue.

             The jurisdiction of this Court is generally confined to
      appeals from final orders of the courts of common pleas.
      Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998)
      (citing 42 Pa.C.S.A. § 742). An order is final if it effectively puts
      a litigant out of court; thus, pretrial orders are ordinarily
      considered interlocutory and not appealable[.] Id. “However,
      an exception to the final order rule exists in orders of the trial
      court suppressing evidence the Commonwealth seeks to admit in
      a criminal trial.” Id. A 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 the order will “terminate or
      substantially handicap the prosecution.”        Pa.R.A.P. 311(d);
      Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382
      (1985). “Such certification is required as a means of preventing
      frivolous appeals and appeals intended solely for delay.” Id., at
      386.

Commonwealth v. Knoeppel, 788 A.2d 404, 406 (Pa. Super. 2001).

Furthermore, Pa.R.A.P. 904(e) provides:      “When the Commonwealth takes

an appeal pursuant to Pa.R.A.P. 311(d), the notice of appeal shall include a




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certification by counsel that the order will terminate or substantially

handicap the prosecution.”

       In Commonwealth v. Malinowski, 671 A.2d 674 (Pa. 1996), the

Supreme Court unequivocally held that that “the failure to comply with the

Dugger certification renders the suppression order unappealable.”               Id. at

678.     In coming to this conclusion, the Court provided the following

explanation:

       [W]hile it is true that an appeal by the Commonwealth of a
       suppression court ruling is appealable as a matter of right, it is
       so only if the Commonwealth certifies that the ruling terminates
       or substantially handicaps the prosecution.       We have not
       required the Commonwealth to prove that burden; rather, we
       have held that it is the certification that precipitates and
       authorizes the appeal.         Without the certification, the
       Commonwealth has no right to appeal.

Id. at 358 (internal citation omitted) (emphasis in original).           Accordingly,

the    Court   specified   that    the   certification   must   be   included   in   the

Commonwealth’s notice of appeal. Id.

       Additionally, in Knoeppel, this Court explained that the subsequent

inclusion of the certification does not cure the defect. 2 Knoeppel, 788 A.2d

at 407. Specifically, in that case, the Court determined that “[t]he inclusion
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2
  In Knoeppel, we acknowledged that in the past this Court has sanctioned
the Commonwealth’s practice of including the certification in its brief, rather
than in its notice of appeal. Id. at 407. However, these cases were decided
before Malinowski, which clarified that the Commonwealth’s certification
must appear in the notice of appeal, the amendment of Pa.R.A.P. 311(d),
and the addition of Pa.R.A.P. 304(e). Current practice requires inclusion of
the certification in the notice of appeal. Knoeppel, 788 A.2d at 407.



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of the    certification in     the    Criminal Docketing Statement or               in   the

Commonwealth’s        appellate      brief     does   not   cure   the   defect.”        Id.

Furthermore, the Knoeppel Court explained that prior to the Malinowski

decision and the amendments to the rules of appellate procedure, failure to

comply with inclusion of the certification resulted in remand to the trial court

for compliance. Knoeppel, 788 A.2d at 407 n.4. Subsequent to the ruling

in Malinowski and the amendments to the rules of appellate procedure,

however, this Court will quash a Commonwealth appeal for failure to comply

with the certification requirements. Id.

       As noted, Fisher’s suppression motion was granted by order entered

December 17, 2015. The Commonwealth filed a timely notice of appeal on

January 13, 2016.3 This notice of appeal, however, lacked a Commonwealth

certification asserting that the order would terminate or substantially

handicap the prosecution pursuant to Pa.R.A.P. 311(d).                    As stated in

Malinowski, “it is the certification that precipitates and authorizes the

appeal.     Without the certification, the Commonwealth has no right to

appeal.” Malinowski, 671 A.2d at 678. As such, without inclusion of the

certification in the notice of appeal, the Commonwealth had no right to

appeal the interlocutory order.              Knoeppel, 788 A.2d at 407 (“Under

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3
   The notice of appeal shall be filed within thirty days after entry of the
order from which the appeal is taken. Pa.R.A.P. 903(a).




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Malinowski,       this   defect    is   fatal;   ‘[w]ithout   the    certification,   the

Commonwealth has no right to appeal.’”); see also Commonwealth v.

Brister,    16    A.3d    530,    534    (Pa.    Super.   2011)     (holding   that   the

Commonwealth’s failure to include certification in its notice of appeal renders

an interlocutory order in a criminal matter unappealable under Rule

311(d).).    Thus, the Commonwealth’s notice of appeal filed January 13,

2016 was a legal nullity.

       The appeal period expired on January 19, 2016, thirty days from the

entry of the order granting Fisher’s suppression motion.4 Subsequently, the

Commonwealth filed another notice of appeal, one it entitled “amended

notice of appeal,” on January 29, 2016.             This amended notice of appeal

included the certification required by Malinowski, Pa.R.A.P. 311(d), and

Pa.R.A.P. 904(e). While the purported amended notice of appeal arguably

precipated and authorized the appeal from the grant of the suppression

order, such notice of appeal was untimely filed. See Pa.R.A.P. 903(a) (the

notice of appeal shall be filed within thirty days after entry of the order from

which the appeal is taken); see also Commonwealth v. Williams, 893

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4
  We note that because January 16, 2016, fell on a Saturday, and Monday
January 18, 2016, was a court holiday, the Commonwealth had until
Tuesday, January 19, 2016, to file an appeal. See 1 Pa.C.S. § 1908 (stating
that, for computations of time, whenever the last day of any such period
shall fall on Saturday or Sunday, or a legal holiday, such day shall be
omitted from the computation.); Commonwealth v. Green, 862 A.2d 613,
618 (Pa. Super. 2004).



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A.2d 147, 149 (when the Commonwealth files an appeal from an order

pursuant to Pa.R.A.P. 311(d), that order is considered final for purposes of

appeal, and any appeal must be filed within thirty days.).           Because the

Commonwealth’s notice of appeal that included the certification was filed

untimely, we lack jurisdiction to review the merits of the Commonwealth’s

claims.

      Moreover,   we    cannot   agree   that     the   subsequent   inclusion   of

certification in the amended notice of appeal cured the defect of the lack of

certification in the original notice of appeal.    See Knoeppel, 788 A.2d at

407 (explaining that subsequent inclusion of the certification does not cure

the defect). Therefore, we are constrained to quash this appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/2016




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