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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S50040-14


           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

                                   -2-
J-S50040-14


     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.




                                    -3-
J-S50040-14



        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




                                           -4-
J-S50040-14


           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).

                                     -5-
J-S50040-14



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




                                      -6-
J-S50040-14


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.




                                    -7-
J-S50040-14




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2014




                          -8-
