holding that Pa. R.A.P. 311(d) did not accord the Commonwealth the right to appeal a pretrial ruling that denied its request that the defense be prevented from presenting certain evidence because, in the context of a suppression ruling, Pa.R.A.P. 311(d) applies only when “a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence”
How later courts described this case
- holding that Pa. R.A.P. 311(d) did not accord the Commonwealth the right to appeal a pretrial ruling that denied its request that the defense be prevented from presenting certain evidence because, in the context of a suppression ruling, Pa.R.A.P. 311(d) applies only when “a pretrial ruling results in the suppression, preclusion or exclusion of Commonwealth evidence”
- recognizing that orders suppressing evidence of the prosecution are subjection to Rule 311(d) certification, whereas orders refusing to suppress defense evidence are not
- finding that the Commonwealth's appeal from a pretrial ruling that denied its motion in limine to exclude certain defense evidence was not appealable under Rule 311(d)
- reiterating that the Commonwealth bears the “never shifting burden to prove each element of the crime charged beyond a reasonable doubt” and a criminal defendant has no duty to produce evidence in his own defense at trial
Written by the judges who cited it.
Later courts went against this
Overruled in part by Commonwealth v. White, 589 Pa. 642 (2006)
This is the plain language of the Rule, and to the extent Cosnek may be understood differently, it is hereby overruled.
The opinion
*430 Justice EAKIN
dissenting.
I respectfully dissent from the majority’s sweeping new pronouncement that “the Commonwealth’s right to interlocutory appeals does not extend to appealing the admission of defense evidence.” Majority Opinion, at 876. As Justice Newman aptly notes, this is not what Rule 311(d) promulgated by this Court says. Unless the language of the Rule changes, it means what it says: The Commonwealth may appeal an order, not just some types of orders, if it substantially handicaps the prosecution. See Pa.R.A.P. 311(d).
In Commonwealth v. Gordon, 543 Pa. 513 , 673 A.2d 866 (1996), this Court answered the present question when it stated:
There is no essential difference between suppression rulings and rulings on motions in limine to admit or exclude evidence. In both cases, a pretrial ruling is handed down which admits or excludes evidence at trial, and in both cases, once a jury is sworn, the Commonwealth may not appeal from an adverse ruling. That suppression motions are always of constitutional dimension and motions in limine are only sometimes of constitutional dimension is of no import, for in both cases, without an immediate right of review, the Commonwealth’s case may be so hampered that the Commonwealth may be unable to proceed.
Id., at 868 (emphasis added). This reaffirmed the Commonwealth’s right to appeal rulings regarding the exclusion and admission of evidence; as the Commonwealth is not going to appeal a decision admitting its own evidence, this must refer to admission of defense evidence.
The majority’s proclamation today eliminates the Commonwealth’s ability to obtain appellate review of admissibility questions that are fundamental to a trial. This implicates “a question of elemental fairness; providing the Commonwealth with what might be their only appeal.” Commonwealth v. Dugger, 506 Pa. 537 , 486 A.2d 382, 386 (1985). If the Commonwealth’s motion in limine is denied and the accused is acquitted, double jeopardy precludes review of the ruling. If *431 the accused is convicted, the Commonwealth is also precluded from appealing because it is not an aggrieved party.
When the victim of a sexual assault, for example a child victim, is asked to testify in court about the intimate personally invasive details of the crime, the embarrassment is not inconsiderable. If the trial court incorrectly orders that evidence precluded by the Rape Shield Act may be admitted by the defense, the mortification cast on the victim is multiplied. Such a ruling will cause many victims to decline to testify; they understandably choose not to be put on trial themselves, revictimized by allegations of and about past behavior that is irrelevant and statutorily prohibited. Does this not hamper the case in the most significant way possible?
If the Commonwealth cannot appeal such a ruling pretrial, where is the justice? When may improper rulings under the Rape Shield Law ever be reviewed? The same can be said of pretrial rulings allowing dubious expert testimony on all manner of things, some vouching for matters as inappropriate as the intent or credibility of the witnesses or the accused. Without providing an immediate right of appeal, decisions allowing such evidence or interpreting this aspect of the Rape Shield Law will escape review. See also Commonwealth v. Jones, 826 A.2d 900 (Pa.Super.2003) (en banc) (Commonwealth permitted to appeal denial of its motion in limine to exclude victim’s prior sexual history). The defense may appeal any and all evidentiary rulings, those that admit prosecution evidence, and those that deny defense evidence, in the name of assuring a fair trial. To limit the prosecution’s appeal to half the matters that assure a fair trial is inherently unfair to the victim, and to the people that the prosecution represents.
Some motions in limine concern evidentiary matters at best tangential to the case-in-chief; opening the appellate doors to every denied motion in limine would add frivolous appeals to the docket and unnecessarily delay an accused’s right to a speedy trial. However, this Court requires the Commonwealth to certify the denial will terminate or substantially handicap the prosecution, see Pa.R.A.P. 904(e), and we must be able to rely on the certification as sufficient to safeguard *432 against dilatory use and abuse of the right of appeal. See, e.g., Commonwealth v. Matis, 551 Pa. 220 , 710 A.2d 12 (1998). Until experience shows actual abuse by the elected prosecutorial representatives of our counties and our Commonwealth, something certainly not of record in any way, the Rule should be applied as written. Paranoid fears of future abuse are little more than legal hypochondria, upon which clear existing Rules and precedent should not be ignored.
Simply put, the existing Rule and precedent should be followed. I find no reason in logic or fairness to create a new shortsighted, unilaterally applicable rule. If there is a good faith certificate that a pretrial ruling substantially hampers the case of the party whose one job is to seek justice, and the only possible time to appeal is before jeopardy attaches at trial, the appeal should be allowed. Accordingly, I dissent.