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Commonwealth v. Boczkowski3/23/2004
ppellant claims that mere certification by the Commonwealth that a pre-trial order terminates or substantially handicaps the prosecution is not sufficient to trigger the right to appeal orders granting defense motions in limine. Superior Court committed no error.
Pa.R.A.P. 311(d) provides that:
In a criminal case, under 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.
The classic case of an interlocutory order appealable by the Commonwealth as of right by such certification is one granting a defense motion to suppress evidence. E.g., Commonwealth v. Dugger, 486 A.2d 382, 386 (Pa. 1985). The certification by an officer of the Court guards against frivolous appeals or appeals intended solely for delay. Id. This Court has held that the Commonwealth's certification is "not contestable" and "in and of itself, precipitates and authorizes the appeal." Id. See also Commonwealth v. Matis, 710 A.2d 12, 17 (Pa. 1998) (same). This Court has since made clear that the Commonwealth may appeal a pre-trial ruling on a motion in limine which excludes Commonwealth evidence in the same manner that it may appeal an adverse ruling on a suppression motion- i.e., by certification that the order has the effect of terminating or substantially handicapping the prosecution. Matis, supra; Commonwealth v. Gordon, 673 A.2d 866 (Pa. 1996); Commonwealth v. Cohen, 605 A.2d 1212 (Pa. 1992) (plurality opinion).
In the case sub judice, the Commonwealth included in its notice of appeal a good faith certification that the trial court order excluding evidence of Elaine Boczkowski's murder from its case-in-chief terminated or substantially handicapped the prosecution. That certification was sufficient to trigger the Commonwealth's right to appeal. The Superior Court panel properly recognized that it was not authorized to go behind that certification. Dugger, 486 A.2d at 385.
Appellant next claims that the Superior Court panel majority erred in considering a matter not of record in ruling upon the admissibility of the other crimes evidence --specifically, the fact that by the time of the Superior Court's decision appellant had been tried and convicted of Elaine Boczkowski's murder in North Carolina. The Superior Court merely mentioned the fact of the conviction - a fact whose accuracy appellant does not dispute -- in a footnote appended to its quotation of the trial court's in limine ruling. The fact of the conviction itself was not cited by the panel as playing any role in its admissibility analysis. Moreover, even if it is assumed that the Superior Court should not have adverted to the fact, appellant's procedural objection ultimately merges into his substantive claim which we address immediately below, i.e., that the evidence of the fact and circumstances of Elaine Boczkowski's murder should have been deemed inadmissible in the Commonwealth's case-in-chief. Because we reject that claim on the merits, this derivative objection necessarily fails.
Turning to that substantive claim, appellant concedes that evidence of prior bad acts is admissible to prove absence of mistake or accident. He argues, however, that a defense of accident must first be raised before the evidence may be introduced, i.e., he suggests that such evidence is a matter for rebuttal only. Appellant goes so far as to suggest that in the absence of "a positive claim by the defense that accident, not homicide, was the underlying cause of death," proof tending to show absence of accident is irrelevant.
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