Commonwealth v. Ferrone
280 A.2d 415
Pa. Super. Ct.
1971
Check Treatment

Opinion.by

Jacobs, J.,

Aрpellee was arrested and indicted on charges of poolselling and bookmaking. On July 3, 1969, he filed an application to suppress all evidence which police officers had obtained from a search of his home. The main contention in this applicatiоn was that there was *331 no probable cause to justify issuance of tbe search warrant pursuant to which the search was made.

Trial on the charges took place on October 23, 1969. The first portion of this proceeding was directed toward establishing whether there wаs probable cause for issuing the warrant. Following testimony, Judge Silvbstbi reserved decision on the suppression issue 1 and suggested that testimony be tаken on the merits of the case so that the police officers who were then present in court would not have to come bаck at a later time. Both the district attorney and the defense attorney agreed with this suggestion and the trial proceeded to cоnclusion.

During the course of the trial, the Commonwealth attempted to place into evidence testimony regarding the contents оf various phone conversations which took place between the police officers and unidentified third persons. These сonversations occurred when the police answered the defendant’s telephone while they were searching his home ‍‌​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​​​‌​​‍pursuаnt to the warrant. Defendant’s attorney objected to this testimony on the ground it was unlawfully obtained; however, the court permitted the officers to testify regarding the telephone conversations, requested briefs be submitted on the question, and reserved determination as to whether the testimony should be stricken. 2 The remainder of the evidence entered against appellee consisted of plain, unmarkеd, rice paper and some sports-pool sheets with written figures upon them.

On December 4,1969, Judge Silvbstbi filed an opinion and order. In the opinion he sustained the validity of the search warrant, and the admissibility of the *332 physical evidence which was seized, i.e., the rice paper and pool sheets. However, he supрressed the evidence regarding the phone calls, holding that the calls were intercepted in violation of the federal statute entitled “Wire Interception and Interception of. Oral Communications.” 18 U.S.C.A. §§2510-2520 (1970). He then found appellee not guilty because the remainder of the evidence was not sufficient to prove beyond a reasonable doubt that appellee was engaged in pоolselling or bookmaking.

- The Commonwealth appeals, contending that the admission of the contents of the telephone cаlls was not prohibited either by the federal statute or by the Pennsylvania statute entitled “Interception and Interference of Communicаtions,” Act of July 16, 1957, P. L. 956, 18 P.S. §3742. This contention is based on the premise that police officers answering a ringing phone during a valid search are not “intеrcepting” a call as the term “intercept” is used in both statutes. We need not reach this question since we believe that the appeal must be quashed because the lower Court acquitted the defendant.

The Commonwealth suggests that an appeal does lie, sinсe they are appealing the suppression of the evidence and the not-guilty verdict was entered before the Commonwealth could challenge this suppression. ‍‌​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​​​‌​​‍It is true that the; Commonwealth has the right of appeal from a pretrial order suppressing evidеnce where the order in effect terminates or substantially handicaps the Commonwealth. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A. 2d 304 (1963). Such appeal lies because usually a pretrial order suppressing evidence involves a: puré question of law; the Commonwealth may appeal where the question involved is purely one of law. Id. at 61, 190 A. 2d at 307; Gaskins Case, 430 Pa. 298, 244 A. 2d 662 (1968); Commonwealth v. Melton, 402 Pa. 628, 168 A. 2d 328 (1961).

*333 A different situation exists, however, where, after a trial on the merits, the trial judge in addition to suppressing evidence also acquits the defendant. In Commonwealth v. Katz, 202 Pa. Superior Ct. 629, 198 A. 2d 883 (1964), this Court considered a case very similar to the instant case. The defendant in Katz was tried, non-jury, on an indictmеnt charging (1) conspiracy and (2) carrying on a common nuisance. Prior to a trial on the merits, the defendant filed a motion to supprеss. There was no preliminary decision on the motion and the evidence was admitted at trial subject to objections. Following the trial, thе lower court judge filed an opinion ruling the challenged evidence inadmissible and finding the defendant not guilty. The Commonwealth appeаled and this Court dismissed the appeal as to the conspiracy indictment. 3 In so doing, this Court reaffirmed the rule that where a defendant has bеen found not guilty, either by verdict of the jury ‍‌​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​​​‌​​‍or by decision of the trial judge, the Commonwealth has no right of appeal except where аllowed by statute. See also, Commonwealth v. Lodge No. 148, L.O.O.M., 188 Pa. Superior Ct. 531, 149 A. 2d 565 (1959). Since, in the present case, the lower court found appellee not guilty, it follows that the Commonwealth may not appeal.

A situation analogous to this case is found where a trial judge sustains a demurrer to the Commonwealth’s evidenсe and proceeds to acquit the defendant. Normally, the Commonwealth may appeal a judgment sustaining a demurrer since such а judgment raises only a question of law. Commonwealth v. Haines, 410 Pa. 601, 190 A. 2d 118 (1963). However, where a lower court sustained a demurrer and, in addition, acquitted *334 the defendant, this Court statеd: “The court below, after sustaining defendant’s demurrer to the evidence, should not have directed the jury to find a verdict of not guilty. The objeсt of a demurrer to the evidence is to ascertain the law on an admitted state of facts. . . . If the demurrer is sustained and the defendant discharged, the Commonwealth may then appeal. . . . The court below,' however, after sustaining the demurrer, did not discharge defendant, but directed the jury to return a verdict of not guilty. While this procedure was incorrect, the result of the verdict of not guilty is that ‍‌​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​​​‌​​‍the Commonwealth is precluded from appealing from the judgment of acquittal.” (Emphasis added.) Commonwealth v. Kerr, 150 Pa. Superior Ct. 598, 601-2, 29 A. 2d 340, 342 (1942); see also, Commonwealth v. Haines, supra; Commonwealth v. Miller, 150 Pa. Superior Ct. 604, 29 A. 2d 343 (1942). Similarly, in the instant case, since there was a trial on the merits before the order of suppression was entered and this procedure was agreed to by the Commonwealth, the verdict of not guilty entered simultaneously with the suppression order precludes a Commonwealth appeal.

Appeal quashed.

Notes

1

Decision was reserved In the suppression issue In order to give thе district attorney time to file a reply on the question of probable cause.

2

The telephone calls consisted of the callers asking for the “line” on certain sporting events and attempts to place bets on sporting events.

3

The appeal as to the charge of nuisance was heard since the Act of May 19, 1874, P. h. 219, §1, 19 P.S. §1188, allows the Commonwealth to appeal in eases charging ‍‌​‌​‌‌‌‌‌‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌‌‌‌​‌‌‌‌​​​​​‌​​‍the offense of nuisance, forcible entry and detainer, or forcible detainer.