J-S41020-19

                                2019 PA Super 239


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 ZACHARY DYLAN CHISM                      :   No. 2011 MDA 2018

             Appeal from the Order Entered November 8, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0000872-2018

BEFORE:    LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.

OPINION BY MURRAY, J.:                              FILED AUGUST 09, 2019

      The Commonwealth appeals from the order granting the suppression

request of Zachary Dylan Chism (Appellee). After careful consideration, we

quash.

      The trial court summarized the suppression hearing testimony as

follows:

          Trooper Jonathan Thompson (Thompson) of the Pennsylvania
      State Police testified on behalf of the Commonwealth.           His
      testimony established the following. On May 27, 2018[,] at
      approximately 1:30 p.m., Thompson responded to a criminal
      mischief report of an individual shooting a glass window with a BB
      gun. He arrived in the area of Lot 35, 36, and 37 of Back [Street,
      Loyalsock Township, Lycoming County] to conduct an area canvas
      by knocking on residences’ doors and asking questions. As soon
      as Thompson exited the vehicle[,] he smelled the pervasive smell
      of processed marijuana in the area. The smell led Thompson to
      initially believe someone was smoking a gravity bong in front of
      their fan. There were no observable individuals in the area of Lots
      35, 36, and 37 at that time. As Thompson spoke with one
      individual (who later was determined to be the mother of
      [Appellee]), he could continually smell the marijuana coming from

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S41020-19


      behind him, Lot 35. Thompson then approached the door of Lot
      35, as he did he could smell the overwhelming scent of marijuana.
      He knocked on the door, without announcing himself as a police
      officer, and [Appellee] answered the door visibly intoxicated with
      the smell of burnt marijuana emanating from his breath[].
      Additionally, the smell of unburnt, processed, marijuana was
      emanating from within the residence. Initially[,] Thompson asked
      [Appellee] about whether or not he had a BB gun, but quickly
      turned the conversation to “how much marijuana had he smoked.”
      Thompson then asked if and how many individuals were within the
      residence. [Appellee] responded that his two friends and girlfriend
      were within the residence. At this time[,] Thompson placed
      [Appellee] in handcuffs, informed him he was not free to leave,
      and that he was being detained. Thompson then had [Appellee]
      enter his residence, sit in the kitchen, and summoned the others
      into the kitchen and instructed them to sit on the kitchen floor as
      they also were not allowed to leave. At this point[,] Thompson
      radioed for backup as he was the only trooper on the scene. It
      was after this that [Appellee] took Thompson to a rear room where
      a gravity bong and multiple smoking devices were present.
      [Appellee] gave permission to search the residence, as a result of
      the search eleven pounds of marijuana and assorted drug
      paraphernalia was recovered.

Trial Court Opinion, 11/8/18, at 1-2.

      [Appellee] was arrested . . . on one count of Possession of a
      Controlled Substance with the Intent to Manufacture or Deliver,
      one count of Possession of a Controlled Substance, and one count
      of Possession of Drug Paraphernalia. . . . [Appellee] filed [a]
      timely Pretrial Omnibus Motion on September 24, 2018. A hearing
      on the motion was held by th[e trial court] on October 26, 2018.

      In his Omnibus Motion, [Appellee] challenge[d] whether exigent
      circumstances existed to permit the police to enter [Appellee]’s
      residence without obtaining a search warrant.            [Appellee]
      contend[ed that] as a result of this unlawful entry[,] any evidence
      obtained as a basis of the search of his residence should be
      suppressed.

Id. at 1 (footnotes omitted).




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J-S41020-19


       On November 8, 2018, the trial court granted Appellee’s suppression

motion. On December 7, 2018, the Commonwealth filed a timely notice of

appeal. In its notice of appeal, the Commonwealth did not certify, pursuant

to Pa.R.A.P. 311(d), that the trial court’s suppression ruling terminated or

substantially handicapped the prosecution. See Pa.R.A.P. 311(d).1

       On appeal, the Commonwealth presents the following issues for review:

       I.     Whether the trial court erred in finding that the exigency in
              this case was officer-created.

       II.    Whether the trial court erred in suppressing the evidence
              when [Appellee] subsequently consented to a warrantless
              search of his residence.

Commonwealth Brief at 7.

       Preliminarily, we must address whether the Commonwealth has

perfected its appeal from the order granting Appellee’s suppression motion.2

On February 7, 2019, this Court issued a rule to show cause why we should

not quash this appeal as interlocutory because the Commonwealth’s notice of


____________________________________________


1   Rule 311(d) states:

       (d) Commonwealth appeals in criminal cases.--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).

2  We may raise the issue of jurisdiction sua sponte. Commonwealth v.
Blystone, 119 A.3d 306, 311 (Pa. 2015).

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J-S41020-19


appeal did not include certification pursuant to Rule 311(d) that the order

granting    Appellant’s     suppression        motion   terminated   or   substantially

handicapped the prosecution. See Order – Rule to Show Cause, 2/7/19. On

February 19, 2019, the Commonwealth responded by filing with this Court an

amended notice of appeal that included a Rule 311(d) certification.

       With respect to our jurisdiction over appeals from orders granting

suppression motions:

           The jurisdiction of this Court is generally confined to appeals
       from final orders of the courts of common pleas.
       Commonwealth v. Matis, 710 A.2d 12, 17 (Pa. 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,
       486 A.2d 382 (Pa. 1985).[3] “Such certification is required as a
       means of preventing frivolous appeals and appeals intended solely
       for delay.” Dugger, 486 A.2d at 386.

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

(citations modified). Importantly, Pa.R.A.P. 904(e) states that “[w]hen the



____________________________________________


3   Following the Dugger decision, Rule 311 “was amended to permit an
interlocutory appeal as a matter of right by the Commonwealth in cases where
the Commonwealth asserts that the order will terminate or substantially
handicap the prosecution.” Commonwealth v. Dixon, 907 A.2d 468, 471
n.8 (Pa. 2006) (citing Pa.R.A.P. 311(d)).

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J-S41020-19


Commonwealth takes an appeal pursuant to Pa.R.A.P. 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).

      Our Supreme Court has held “that the failure to comply with the Dugger

certification renders the suppression order unappealable.” Commonwealth

v. Malinowski, 671 A.2d 674, 678 (Pa. 1996). In reaching this conclusion,

the Court explained:

      [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. (citations omitted). Thus, our Supreme Court in Malinowski made clear

that the Commonwealth must include the Rule 311(d) certification in its notice

of appeal in order to perfect its right to appeal a suppression ruling. Id.

      Additionally, in Knoeppel, this Court determined that the subsequent

presentation of a Rule 311(d) certification does not cure a defective notice of

appeal. Knoeppel, 788 A.2d at 407. We stated:

      In the present case, the Commonwealth failed to include the
      requisite certification in its notice of appeal. Under Malinowski,
      this defect is fatal; “[w]ithout the certification, the Commonwealth
      has no right to appeal.” Malinowski, 671 A.2d at 678. The
      inclusion of the certification in the Criminal Docketing Statement
      or in the Commonwealth’s appellate brief does not cure the defect.

Id.


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J-S41020-19


      In this case, the trial court granted Appellee’s suppression motion on

November 8, 2018. The Commonwealth filed a timely notice of appeal on

December 7, 2018.        The notice of appeal, however, did not contain a

statement certifying that the order would terminate or substantially handicap

the prosecution pursuant to Pa.R.A.P. 311(d). As Malinowski articulated, “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.    Thus, without the certification in the notice of appeal, the

Commonwealth had no right to appeal the interlocutory order. Knoeppel,

788 A.2d at 407 (“Under Malinowski, this defect is fatal; ‘[w]ithout the

certification, the Commonwealth has no right to appeal.’”).             Thus, the

Commonwealth’s notice of appeal was defective.

      Moreover, we cannot conclude that the subsequent inclusion of a Rule

311(d) certification in the amended notice of appeal that the Commonwealth

filed with this Court 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). Even if it could serve

as a cure to the defective original notice of appeal, the record does not indicate

that the Commonwealth ever filed the amended notice of appeal with the trial

court and in any event, the Commonwealth filed it with this Court on February

19, 2019, well after the 30-day appeal period. See Pa.R.A.P. 903(a) (“Except

as otherwise prescribed by this rule, the notice of appeal required by Rule 902


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J-S41020-19


(manner of taking appeal) shall be filed within 30 days after the entry of the

order from which the appeal is taken.”).

      In short, because the Commonwealth’s original notice of appeal lacked

Rule 311(d) certification, the notice of appeal was defective, and the

Commonwealth’s untimely amended notice of appeal did not cure this defect.

Accordingly, we lack jurisdiction and therefore quash this appeal.

      Appeal quashed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2019




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