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Commonwealth v. Matis2/24/1998
uard to prevent the Commonwealth from filing appeals to delay a trial when a court has denied a motion to continue.
We reject Matis' assertion that we should preclude the Commonwealth from appealing orders denying continuances because the Commonwealth could circumvent the trial court's ruling by filing frivolous appeals. In Malinowski, the trial court granted the defendant's motion to suppress the results of a breathalyzer test in a DUI prosecution. The Commonwealth filed a notice of appeal to the Superior Court, but before the deadline for filing its brief, the Commonwealth withdrew its appeal and attempted to continue with its case. The Commonwealth did not certify in its notice of appeal that the suppression order effectively terminated or substantially handicapped its prosecution pursuant to Dugger.
The defendant subsequently filed a motion to dismiss alleging that the Commonwealth had failed to bring him to trial within the time period mandated by Rule 1100. The trial court granted the motion to dismiss because the Commonwealth failed to properly certify the pre-trial appeal. In addition, the trial court found that the Commonwealth's appeal "was nothing more than a tactical maneuver designed to obtain another continuance." Malinowski at 361, 671 A.2d 680. The Superior Court reversed the trial court and remanded the case for trial.
This Court reversed the Superior Court, holding that while 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. This Court stated the following in Malinowski:
Without the certification, the Commonwealth has no right to appeal. Without a right to appeal, it must be said that the Commonwealth failed to exercise due diligence by filing the appeal.
Id. at 358, 671 A.2d at 678 (citations omitted). Accordingly, we held in Malinowski that the Commonwealth's failure to comply with the Dugger certification rendered the trial court's suppression order unappealable.
This case is clearly distinguishable from Malinowski because the Commonwealth certified in its notice of appeal to the Superior Court that the trial court's Order denying its motion for a continuance substantially handicapped the prosecution pursuant to Dugger. Moreover, the trial court rejected Matis' claim that the Commonwealth acted in bad faith when it filed the appeal. Its pre-trial appeal was therefore valid because the Order appealed from is sufficiently similar to a suppression order to justify an appeal from it pursuant to the rationale of Dugger and its progeny.
Thus, pursuant to Jones, the Commonwealth was duly diligent when it filed its pre-trial appeal containing a certification that the denial of its motion for a continuance terminated or substantially handicapped the prosecution. Accordingly, the trial court erred when it discharged the prosecution against Matis.
Conclusion
For the foregoing reasons, we affirm the Order of the Superior Court and we remand this case to the Court of Common Pleas of McKean County for trial.
Justice Cappy files a Dissenting Opinion in which Messrs. Justice Zappala and Nigro join.
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