text:
    578 A.2d 540
    COMMONWEALTH of Pennsylvania v. Donna Marie ELY, Appellant.
    Superior Court of Pennsylvania.
    Submitted Dec. 6, 1989.
    Filed Aug. 16, 1990.

      Lawrence L. Davis, Ebensburg, for appellant.
    James A. Nelson, Asst. Dist. Atty., Ebensburg, for Com., appellee.
    Before DEL SOLE, KELLY and HESTER, JJ.
   KELLY, Judge:

This appeal returns to this Court following remand for appointment of new counsel based upon the patent inadequacy of the brief filed on appellant’s behalf by prior counsel. Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1988). New counsel has filed an advocate’s brief which properly and cogently presents appellant’s now sole contention on appeal. Nonetheless, we conclude that the appeal is without merit, and affirm Judgment of Sentence.

Appellant is a mentally retarded adult with attendant personality disorders. She was convicted in a non-jury trial of four counts of endangering the welfare of a child, three counts of incest, and three counts of corruption of a minor. Post verdict motions were denied, and appellant was sentenced to an aggregate sentence of 10-20 years imprisonment. A timely appeal followed.

Appellant through newly appointed appellate counsel now contends that counsel failed to effectively develop a defense of duress and involuntary intoxication. In fact, however, appellant’s argument in support of this contention rests entirely on evidence presented and argued by prior counsel, but rejected by the trial court as fact finder in a non-jury trial. On appeal, appellant has failed to proffer any specific evidence which counsel ineffectively failed to offer or argue at trial. Hence, the contention must fail. See Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981); Commonwealth v. Petras, 368 Pa.Super. 372, 376, 534 A.2d 483, 485 (1987).

Counsel also argues that a new trial is required under the rationale expressed in Commonwealth v. Stonehouse, 521 Pa. 41, 555 A.2d 772 (1989). First, counsel errs in two material respects. The portion of Stonehouse upon which counsel would have us rely did not command a majority of the Court. Moreover, the dicta relied upon could not properly be extended by analogy to control this case, even if it had been precedential.

Counsel labors under the misapprehension that Stonehouse adopted the “battered woman’s syndrome” theory of self-defense. It did not.

While the lead opinion for the majority by Justice Larsen would have done so, four of the seven Justices sitting in Stonehouse expressly declined to embrace Justice Larsen’s proposed adoption of the “battered woman’s syndrome” theory of self-defense. See Commonwealth v. Stonehouse, supra, 555 A.2d at 785 (Zappala, J., concurring; Flaherty, J., joins the concurrence) (concurring on other grounds, expressly declining to reach the battered woman’s syndrome self-defense issue); id. (Nix, C.J., dissenting; McDermott, J., joins the dissent) (dissenting on waiver grounds, expressly declining to reach the battered woman’s syndrome self-defense issue). At most, our Supreme Court has expressed a willingness to seriously reconsider the subject, if properly raised, developed, and preserved in some future case. Id.

Assuming, arguendo, that the theory were to be adopted in some future case, counsel could still not be found ineffective here for failing to raise an analogous theory. Succinctly, counsel is not required to anticipate changes in the law; a fortiori, counsel is not required to anticipate potential expansions by analogy of such future changes in the law.

Moreover, the controversial aspect of the battered woman’s syndrome theory of self-defense case is not controversial in duress cases. The stumbling block in battered woman’s syndrome self-defense cases is the legislative requirement that there be an immediate or imminent threat of serious bodily injury when the deadly force was used; the battered woman’s syndrome theory of self-defense (even if accepted) merely establishes that the accused reasonably perceived an immediate or imminent threat which did not actually exist. See Commonwealth v. Grove, 363 Pa.Super. 328, 333-339, 526 A.2d 369, 372-75 (1987), allocatur denied, 517 Pa. 630, 539 A.2d 810 (1987).

Immediacy or imminence is not a requirement of duress, as it is of self-defense. Consequently, acceptance of the battered woman’s syndrome theory of self-defense in Pennsylvania would add little, if anything, to the existing law that the existence of duress is to be determined by considering whether under the totality of the circumstances (including past abuse and appellant’s mental capacity) the threat (implicit or explicit) or use of force was such that a person of reasonable firmness would have been unable to resist. See Commonwealth v. Wiggins, 274 Pa.Super. 617, 623, 418 A.2d 577, 580 (1980). Had the battered woman’s syndrome theory of self-defense been adopted in Stonehouse, and had that adoption been anticipated by counsel here, no material change could have resulted.

Implicit in counsel’s argument on this point is the erroneous assumption that prior counsel is to be deemed ineffective for failing to better pursue unspecified evidence and argument in support of the duress claim. It is incumbent upon an appellant claiming ineffective assistance of counsel on such grounds to proffer specific, admissible evidence to be presented at an evidentiary hearing in order to even warrant a hearing on such a claim. See Commonwealth v. Pettus, supra; Commonwealth v. Petras, supra. No such proffer was made here.

In an abundance of caution this Court reserved judgment on this appeal until appellant’s side could be fully and effectively presented. Commonwealth v. Ely, supra. New counsel’s brief assures us now, as prior counsel’s did not, that we have fully and fairly heard both sides. As a result, we may now decide this case with confidence that appellant has had the full benefit of due process. Cf. Commonwealth v. Albert, 522 Pa. 331, 561 A.2d 736 (1989).

Judgment of sentence is affirmed.

DEL SOLE, J., concurs in the result.

      . While counsel has not reasserted the other four issues suggested for review in the brief submitted by prior counsel, we note that upon review of the record, we agree with Judge Rowley and the learned trial judge that those claims were also meritless. 554 A.2d at 120-24.


source: Caselaw Access Project

author: HOFFMAN, Judge:

license: Public Domain

text:
    578 A.2d 542
    M.A. CRISMAN, Appellant, v. Stephen D. STIDD and Barbara Stidd, Husband and Wife.
    Superior Court of Pennsylvania.
    Argued June 4, 1990.
    Filed Aug. 15, 1990.
    Anthony H. Chambers, Bradford, for appellant.
    Stanley E. Pécora, Jr., Bradford, for appellees.

      Before FORD ELLIOTT, HOFFMAN and HESTER, JJ.
   HOFFMAN, Judge:

This appeal is from a judgment awarding appellant, M.A. Crisman, $3,076 in connection with a suit appellant brought against appellees, Stephen and Barbara Stidd, for their breach of a covenant contained in a commercial lease. Appellant contends that the trial court erred in failing to apply the proper measure of damages for appellees’ breach. For the following reasons, we affirm the judgment below.

On September 22, 1986, appellant filed a complaint in which he alleged that appellees had breached their covenant to repair the premises he had rented to them. He sought damages in the amount of $18,717, the figure appellant alleged was necessary to undo the changes they had made to the premises. A bench trial was held, and the court heard evidence on April 26, 1988, and September 22, 1988. On January 23, 1989, the court below issued its opinion and order, which awarded appellant $3,076 in damages. Following timely filing and argument, appellant’s post-trial motions were denied by order dated June 19, 1989. Judgment was entered in favor of appellees on March 22, 1990. This appeal followed.

On May 1, 1980, the parties entered into a written lease agreement in which appellant agreed to lease appellees four rooms located on the ground floor of 14 Mechanic Street, Bradford, Pennsylvania, for the purpose of operating a restaurant and bar. Rent was set at $200 a month for the first year, with an option to renew for an additional two year period under the same terms and conditions, with the rent increasing to $225 a month. Paragraph five of the lease provided that “[lessees] will not injure or deface any part of the premises in any manner, and will keep and preserve the same in good order and at the expiration of said term or any renewal thereof, will deliver up the said premises in as good condition as they now are, natural wear and tear excepted.” Appellees occupied the premises for the three years set forth in the lease and continued to occupy them on a month-to-month basis for an additional six months, ending their occupancy on November 12, 1983. During their occupancy, appellees made certain alterations to the premises in order to better suit them to their business use. The cost of removing these alterations and restoring the premises to its original condition was estimated by appellant to be $18,042. The trial court found that the total value of the premises themselves is approximately $18,000.

The only question presented on appeal concerns the sufficiency of the damages awarded by the trial court. In evaluating the sufficiency of damages, we are guided by certain well-established principles. As our Supreme Court noted in Incollingo v. Ewing, 444 Pa. 299, 282 A.2d 206 (1971), a torts case:

Certain general propositions concerning the law of damages, as contained in our case law, are helpful in making the choice before us. Clearly, damages are to be compensatory to the full extent of the injury sustained, but the award should be limited to compensation and compensation alone.... “The rule is to give actual compensation, by graduating the amount of the damages exactly to the extent of the loss.” Moreover, except in those cases where public policy allows punitive damages, the loss sustained should be compensated with the least burden to the wrongdoer consistent with the idea of fair compensation to the injured.

Id., 444 at 307, 282 A.2d at 228-29 (citations omitted). The parties have cited no appellate cases in this jurisdiction, and our research has revealed none, that deal directly with the issue of the measure of damages for a tenant’s breach of a covenant to repair. Nevertheless, there is authority in Pennsylvania which states that a lessor’s damages for a tenant’s breach of a covenant to repair should be limited by the reduction in the fair market value of the property in question. See Fayette R. Plumb., Inc. v. Cooper Industries, Inc., 587 F.Supp. 64 (E.D.Pa.1984); Giordano v. Brandywine Mushroom Corp., 32 Pa.D. & C.2d 522 (Chester Co.1963).

Here, the trial court awarded appellant $3,076, a figure it found to be sufficient to restore the rental value of his property to approximately $250 a month, the same level it would be had appellees fully performed the covenant to repair. The basis of the trial court’s action was its recognition that it would be wasteful to spend $18,000 to completely undo the work appellees had performed on the property, because undoing that work would not increase the rental value of the property any more than repairs that could be performed for $3,076. Appellant, however, argues that he is entitled to the cost of restoring the property to the exact condition it was in before appellees leased it. We disagree. First, we note that the lease itself contains no such requirement: it states only that the premises must be “in as good condition as they now are.” The trial court’s order fully enforces this language. Moreover, to require full performance of the covenant as construed by appellant would result in an unjust windfall to appellant, as he would have both a building worth $18,000 with a rental value of $250 a month, plus $18,000 cash. There is no evidence or allegation that the $18,000 repairs would increase the rental value of the property more than the $3,076 repairs. Thus, in awarding appellant $3,076 in damages, the trial court fully compensated him for the diminution in the rental value of his property caused by appellees’ breach of their covenant to repair. The trial court also avoided ordering appellees to pay appellant a sum equal to the market value of his building to compensate him for their failure to make repairs to that building, and thereby imposing an overly burdensome penalty upon them. In light of the language contained in the covenant to repair (“as good condition as” before) and the practical considerations governing this case, we agree with the trial court that it would be disingenuous as well as unfair to require appellees to pay appellant the amount he seeks. Accordingly, for the above-mentioned reasons, we affirm the judgment below.

Judgment Affirmed.

      . In fashioning this award, the trial court adhered to the principles set out in Fayette and Giordano, supra. See Trial Court Opinion, January 23, 1989 at 7.


text:
    578 A.2d 933
    COMMONWEALTH of Pennsylvania, Appellant, v. Keith Michael SCOTT. COMMONWEALTH of Pennsylvania v. Keith Michael SCOTT, Appellant.
    Superior Court of Pennsylvania.
    Argued March 20, 1990.
    Filed July 19, 1990.
    Reargument Denied Aug. 28, 1990.

      Gregory Doyle Anthony, Asst. Dist. Atty., Warren, for Com. (at 2333).
    George W. Westervelt, Jr., Stroudsburg, for appellant (at 2408) and appellee (at 2333).
    David E. Christine, Jr., Dist. Atty., East Stroudsburg, for Com. (at 2408).
    Before OLSZEWSKI, JOHNSON and HOFFMAN, JJ.
   HOFFMAN, Judge:

A criminal complaint was filed in Monroe County charging defendant Keith Scott with criminal homicide, robbery, aggravated assault (two counts), theft, and attempted criminal homicide. These cross-appeals are from the order below that, inter alia, dismissed the first degree murder and attempted criminal homicide charges against Scott, and set a trial date for the remaining charges. In its appeal, the Commonwealth construes the court’s order as having granted Scott habeas corpus relief, and contends that the court erred because a prima facie case was established on all charges. Conversely, Scott, in his cross-appeal, construes the court’s order as one under the Mental Health Procedures Act, see 50 Pa.Stat.Ann. §§ 7101-7503, and argues that the court erred in failing to enter an acquittal on all charges. For the reasons that follow, we quash Scott’s appeal but otherwise affirm the order below.

The criminal complaint in this case was filed on April 1, 1983. The complaint alleged that on March 31, 1983, Scott stabbed one man to death and seriously wounded another. On May 11, 1983, a preliminary hearing was held, and Scott was bound over on the charges. Thereafter, Scott’s counsel filed a petition under the Mental Health Procedures Act for a hearing to determine competence, see 50 Pa.Stat.Ann. § 7403. Scott was arraigned on May 31, and a plea of not guilty was entered on his behalf. On June 1, the hearing court issued an opinion and order, finding Scott incompetent to stand trial, and committing him to Farview State Hospital for ninety (90) days. A defense motion for continuance of trial was granted on September 8, 1983. On November 9, the court granted Scott’s motion to continue trial indefinitely, stating in its order that “Defendant shall be tried only when the Commonwealth has received notice from Farview State Hospital ... that the Defendant is mentally competent to stand trial.” Between 1983 and 1989, the court received periodic reports concerning Scott’s competency, which resulted in the entry of orders continuing his treatment at Farview.

In April and May of 1989, the Commonwealth filed applications for three separate competency examinations under § 7402(d) of the Act. In the applications, the Commonwealth sought to have Scott’s condition reviewed by Bernard Willis, M.D., and Kenneth Weiss, M.D., both psychiatrists, and Gerry A. Stefanatos, Ph.D., a neuropsychologist. The court issued separate orders granting each application, and directing that Scott be examined by the doctors designated by the Commonwealth. The orders also directed the doctors to file reports detailing, inter alia, their respective opinions concerning (1) Scott’s competence to stand trial; (2) whether, at the time of the offenses, Scott was legally insane; and (3) whether Scott had the mental capacity to form a specific intent to kill. On July 5, 1989, the court scheduled a competency hearing for July 14. On July 11, however, Scott filed a notice of insanity defense, see Pa.R.Crim.P. 305, and a petition for a writ of habeas corpus. In the habeas petition, Scott alleged that the reports already filed by the Commonwealth’s own experts were sufficient to establish his insanity. In response, the court rescheduled the competency hearing for July 24, 1989, and directed that evidence on the habeas petition would be heard at the same time.

At the July 24 hearing, the court heard testimony from the Commonwealth’s three medical experts. Doctors Willis, Weiss, and Stefanatos all opined that Scott was competent to stand trial. Scott’s counsel also questioned Doctors Willis and Weiss in an attempt to prove that Scott was legally insane. Both psychiatrists stated that their examinations led them to conclude that Scott had been legally insane at the time of the offenses. See N.T. July 24, 1989 at 7, 23-24 (R.R. at 51a, 67a-68a). The doctors’ testimony in this regard was consistent with the findings contained in the reports they had filed with the court. See R.R. at 151a-52a (Dr. Willis), 153a-54a (Dr. Weiss). In an attempt to rebut the doctors’ conclusions on insanity, the Commonwealth introduced the testimony of Christine Metzler, Scott’s girlfriend at the time of the offenses. Ms. Metzler testified concerning Scott’s behavior shortly after the stabbings occurred. Her testimony suggested that Scott was aware that he had killed someone, that he knew it was wrong to do so, and that he was aware enough of the wrongfulness of his actions to attempt to destroy evidence, disguise his appearance, and flee. See N.T. July 24, 1989, at 44-49 (R.R. at 88a-93a). Finally, the Commonwealth introduced the notes of testimony from Scott’s preliminary hearing.

After hearing argument, the court directed the parties to file briefs. A review of these briefs indicates that, although appellant had raised the insanity issue in a habeas petition, both parties recognized that the court had the authority, under the Mental Health Procedures Act, see 50 Pa.Stat.Ann. § 7404(a), to make a pre-trial determination concerning Scott’s criminal responsibility. See “Commonwealth’s Brief in Opposition to Defendant’s Application for Habeas Corpus Relief Under the Mental Health Procedures Act” at 2-3; “Defendant’s Brief in Support of Petition for Writ of Habeas Corpus” at 3-5. On September 1, 1989, the hearing court issued an order in which, inter alia, it found that Scott was competent to stand trial, dismissed the charges of first degree murder and attempted criminal homicide, and denied Scott’s petition for a writ of habeas corpus. The Commonwealth and Scott filed these timely cross-appeals from that order.

In its opinion accompanying the September 1 order, the court explained the reasons for its disposition as follows. The court noted that the Commonwealth’s psychiatrists agreed that appellant was legally insane at the time of the offense. The court also noted, however, that the experts agreed that Scott’s mental incapacity resulted, in some part at least, from his “long time drug use.” See Trial Court Opinion at 8. This finding is important because the Crimes Code specifically provides that “neither voluntary intoxication nor voluntary drugged condition is a defense to a criminal charge, nor may evidence of such conditions be introduced to negative the element of intent of the offense....” 18 Pa.C.S.A. § 308. Instead, evidence of such a condition may be offered only “whenever it is relevant to reduce murder from a higher degree to a lower degree of murder.” Id. In light of these limitations, the court reasoned that:

Our Supreme Court has held that an actor should not be insulated from criminal liability for acts which result from a mental state that is voluntarily self-induced. See Commonwealth v. Hicks, 483 Pa. 305, 311, 396 A.2d 1183, 1186 (1979). However, our Supreme Court has never reached the question[ ] of the applicability of the defense of insanity where the mental disease is traceable to long term abuse of drugs. In the Hicks case, supra, the Court was concerned with an acute episode. Commonwealth v. Hicks, 483 Pa. 305, 311 n. 5, 396 A.2d 1183, 1186 n. 5 (1979).
We reject the proposition that in today’s society a mental illness resulting from long term drug abuse can exonerate someone from criminal responsibility. On the other hand, we find it unconscionable to submit the issue of First Degree Murder in this case to the jury where all of the experts hired by the Commonwealth unequivocally agree that the defendant did not have the mental capacity to form a specific intent to kill. Such specific intent is a requisite for the capital offense of first degree murder. 18 Pa.C.S.A. [§] 2502.
Since we find that the Defendant lacked the specific intent to commit first degree murder, this conclusion also mandates that the charge of Criminal Attempt to Commit Criminal Homicide be dismissed.

Trial Court Opinion at 20-21.

Both Scott and the Commonwealth take issue with the court’s decision below. The parties’ arguments are based on differing characterizations of the nature of the hearing below. The Commonwealth suggests that the court was sitting as a habeas corpus court, and thus had power only to determine whether the Commonwealth had presented a prima facie case. The Commonwealth then argues that the evidence it presented clearly was sufficient to establish a prima facie case and notes that Scott does not contest this fact. Scott suggests, however, that the court was sitting under authority of the Mental Health Procedures Act and was empowered, in its discretion, to make a pre-trial determination of Scott’s criminal responsibility. Scott contends that the court erred to the extent that it refused to acquit him on all charges on insanity grounds. Because our review of the propriety of the court’s decision depends preliminarily on a determination whether the court was sitting as a habeas court or under the Mental Health Procedures Act, we shall first review the court’s authority, and then discuss the merits of the claims.

I. PROCEDURES GOVERNING PRE-TRIAL CHALLENGES TO SUFFICIENCY AND CRIMINAL RESPONSIBILITY

A. Habeas Corpus

The Judicial Code, 42 Pa.C.S.A. § 101 et seq., provides that “[a]ny judge of a court of record may issue the writ of habeas corpus to inquire into the cause of detention of any person or for any other lawful purpose.” Id. § 6502(a). It is settled that a petition for a writ of habeas corpus is the proper means for testing a pre-trial finding that the Commonwealth has sufficient evidence to establish a prima facie case. Commonwealth v. Morman, 373 Pa.Super. 360, 363, 541 A.2d 356, 357 (1988); see also Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). A pre-trial petition for a writ of habeas corpus, therefore, is similar in purpose to a preliminary hearing. See Commonwealth v. Morman, supra, 373 Pa.Super. at 365, 541 A.2d at 359. “ ‘The primary reason for the preliminary hearing is to protect an individual’s right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection....’” Id. (citations omitted). Thus, the focus of a pre-trial habeas petition is on “whether sufficient Commonwealth evidence exists to require a defendant to be held in government ‘custody’ until he may be brought to trial.” Id., 373 Pa.Superior Ct. at 367, 541 A.2d at 360. In making this pre-trial determination, the habeas court is not limited to reviewing the evidence presented at the preliminary hearing; instead, “the Commonwealth may present additional evidence at the habeas corpus stage in its effort to establish at least prima facie that a crime has been committed and that the accused is the person who committed it.” Id., 373 Pa.Superior Ct. at 365-66, 541 A.2d at 359.

B. Mental Health Procedures Act

The Mental Health Procedures Act provides a vehicle by which a trial court, in its discretion, may make a pre-trial determination of a defendant’s criminal responsibility. See Commonwealth v. Gainor, 289 Pa.Super. 190, 195, 432 A.2d 1116, 1119 (1981). See generally J.W. Oler, Pennsylvania Criminal Law: Defendant’s Mental State §§ 5.9—5.12 (1986). Such a determination may be made only in conjunction with a pre-trial competency examination and hearing. The Act is structured as follows. Section 7402 provides that an application for an incompetency examination “may be presented by an attorney for the Commonwealth, a person charged with a crime, his counsel, or the warden or other official in charge of the institution” where the person is detained. Id. § 7402(c). The court, after such application or on its own motion, “may order an incompetency examination at any stage in the proceedings and may do so without a hearing unless the examination is objected to by the person charged with a crime or by his counsel.” Id. § 7402(d). Section 7402(e) provides that, when the court directs an incompetency examination, it may also direct an inquiry into the defendant’s criminal responsibility:

(e) Conduct of Examination; Report.—When ordered by the court, an incompetency examination shall take place under the following conditions:
* * * * * *
(2) It shall be conducted by at least one psychiatrist and may relate both to competency to proceed and to criminal responsibility for the crime charged.
* * * * * *
(4) A report shall be submitted to the court and to counsel and shall contain a description of the examination, which shall include:
(i) diagnosis of the person’s mental condition;
(ii) an opinion as to his capacity to understand the nature and object of the criminal proceedings against him and to assist in his defense;
(iii) when so requested, an opinion as to his mental condition in relation to the standards for criminal responsibility as then provided by law if it appears that the facts concerning his mental condition may also be relevant to the question of legal responsibility; and
(iv) when so requested, an opinion as to whether he had the capacity to have a particular state of mind, where such state of mind is a required element of the criminal charge.

Id. (emphasis supplied). The Act further provides that, when a court conducts a subsequent hearing on incompetency, see id. § 7403, the court “may, in its discretion, also hear evidence on whether the person was criminally responsible for the commission of the crime charged.” Id. § 7404(a). This pre-trial determination of responsibility is to be made by the court “in accordance with the rules governing the consideration and determination of the same issue at criminal trial.” Id. If the court finds the defendant “to have lacked criminal responsibility, an acquittal shall be entered.” Id. If the defendant is not acquitted, the defense still may be raised at the subsequent trial. Id.

In summary, it is clear that, in the pre-trial setting, the Mental Health Procedures Act and habeas corpus play very different roles. A habeas corpus inquiry is limited to a prima facie evaluation of the sufficiency of the Commonwealth’s case, and the court sits, in effect, in a review capacity. Conversely, the Mental Health Procedures Act authorizes a trial court to make a broad inquiry into a defendant’s criminal responsibility, and to make a pretrial factual determination concerning a defendant’s criminal responsibility.

II. THE COMMONWEALTH’S APPEAL

The Commonwealth’s entire argument is premised upon its characterization of the order below as granting habeas corpus relief. If the Commonwealth is correct that the court was sitting only as a habeas court, there is no question that we would have to sustain the Commonwealth’s position. It is settled that the trier of fact is not required to accept psychiatric testimony on the question of a defendant’s sanity, see, e.g., Commonwealth v. Tempest, 496 Pa. 436, 441, 437 A.2d 952, 954 (1981), or the question of a defendant’s mental capacity to form a specific intent to kill. See id., 496 Pa. at 441, 437 A.2d at 955; Commonwealth v. Davis, 331 Pa.Super. 59, 65, 479 A.2d 1077, 1080 (1984). Instead, the defendant’s criminal responsibility can be established by his own conduct and statements at or near the time of the offense, or by the testimony of lay witnesses. Id., 496 Pa. at 440, 437 A.2d at 954. Here, the Commonwealth introduced the preliminary hearing testimony of the surviving victim, Keith Knecht, as well as the testimony of Scott’s girlfriend, Christine Metzler, at the July 24, 1989 hearing. This evidence clearly was sufficient, as a prima facie matter, to rebut Scott’s insanity defense.

The difficulty with the Commonwealth’s position is that a review of the record and the court’s opinion indicates that the court did not grant relief on habeas corpus grounds. It is true that the question of Scott’s sanity was first raised in a habeas petition. However, that petition was filed while the court already was in the process of conducting an incompetency examination under the Mental Health Procedures Act. The court and the parties recognized that the Act authorized the court to make a pre-trial determination concerning Scott’s criminal responsibility. The court in fact did direct the doctors to present opinions on both Scott’s competency and his criminal responsibility. In addition, at the July 14 hearing, the court entertained psychiatric testimony on both competency and criminal responsibility, and the parties’ briefs were devoted to the question of criminal responsibility. Thus, the question of Scott’s responsibility was squarely before the court.

The court’s order and opinion confirm that its disposition was not under habeas corpus. Although the court at one point cited to habeas corpus standards, its analysis did not proceed in terms of the sufficiency of the Commonwealth’s prima facie case, but instead focused on the evidence regarding insanity and mental capacity, and the interrelationship between the Mental Health Procedures Act and the Crimes Code provisions concerning criminal responsibility. Moreover, the court’s conclusions—i.e., that Scott was not entitled to habeas corpus relief and could not be “exonerate[d] from criminal responsibility,” but still did not have the mental capacity to form a specific intent—indicates that the determination clearly was made pursuant to the Act. Accordingly, the Commonwealth’s argument that the court’s decision was erroneous because it was an improper exercise of the court’s habeas corpus power is meritless. The question that should arise at this point is whether the court’s determination is supportable under the Act. The Commonwealth, however, has made no argument in this regard; therefore, there is no basis for us to disturb the court’s decision to dismiss the charges of first degree murder and attempted criminal homicide.

—B—

We should emphasize that our finding that the Commonwealth has failed to demonstrate error should not be construed as an opinion on the merits of the determination below. The questions presented to the court below were of a complex nature, involving the interplay of the Act and principles of criminal responsibility found both in the Crimes Code and the common law, and, as a result, it appears that the parties may not have appreciated the precise nature of the court’s finding. In its opinion, the court clearly indicated that it refused to find Scott insane under the M’Naghten rule because his mental disease was traceable to “the habitual long term abuse of drugs.” See Trial Court Opinion at 20. Instead, the specific reason the court dismissed the first degree murder and attempted criminal homicide charges was its finding that appellant lacked the mental capacity to form a specific intent to kill. See id. at 21. Although the court does not state it as such, this conclusion, which speaks in terms of the “defendant’s capacity to form a specific intent to kill”, was tantamount to a finding of diminished capacity. See, e.g., Commonwealth v. Walzack, 468 Pa. at 218, 220-21, 360 A.2d at 918, 919-20 (“diminished capacity” defense recognized for first time: held, defendant may introduce psychiatric evidence in attempt to show that he does not possess sufficient mental capacity to form specific intent to kill necessary to support first degree murder conviction). Despite this finding, the Commonwealth and Scott limit their discussions to habeas corpus and the M’Naghten insanity defense, respectively. If the parties had recognized that the court’s decision was based on “diminished capacity”, rather than on habeas corpus or a finding of legal insanity, different considerations may well have governed this appeal.

III. DEFENDANT SCOTT’S APPEAL

Defendant Scott contends that the court’s order was erroneous to the extent that the court refused to enter an acquittal on all charges. Scott apparently suggests that the testimony of the Commonwealth’s own psychiatrists requires a finding that he was legally insane. For the reasons that follow, we must quash Scott’s appeal.

In his notice of appeal, Scott states only that the appeal is from “the order entered in this matter on the first day of September, 1989.” Scott was aggrieved by that order only to the extent that it denied his petition for habeas corpus relief. It is settled, however, that the defendant cannot appeal from the denial of a pre-trial application for habeas corpus relief. See, e.g., Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth ex rel. Gordy v. Lyons, 434 Pa. 165, 252 A.2d 197 (1969).

We recognize that Scott’s argument, both in the court below and on appeal, focuses on the propriety of the court’s decision under the Mental Health Procedures Act. However, even if the appeal is construed as from an order entered under the Act, it still is interlocutory. Although the Act is silent on the question of appealability, “[t]he general rule in criminal cases is that a defendant may appeal only from a final judgment of sentence, and an appeal from any prior order or judgment will be quashed.” Commonwealth v. Kurilla, 391 Pa.Super. 241, 243, 570 A.2d 1073, 1073 (1990); see also Commonwealth v. Reagan, 330 Pa.Super. 417, 418, 479 A.2d 621, 622 (1984). The purpose of the rule is to “prevent[] undue delay and avoid[ ] the disruption of criminal cases by piecemeal appellate review.” Commonwealth v. Bolden, 472 Pa. 602, 610, 373 A.2d 90, 93 (1977) (plurality opinion); see also Commonwealth v. Hunter, 294 Pa.Super. 52, 55, 439 A.2d 745, 747 (1982), allocatur denied (June 11, 1982). The rule, however, “is neither absolute nor inflexible.” Commonwealth v. Bolden, supra; see also Commonwealth v. Kurilla, supra. Thus, an appeal before final judgment may be permitted in those exceptional circumstances “when the need for immediate review outweighs the purposes of the final judgment rule.” Commonwealth v. Bolden, supra, 472 Pa. at 610, 373 A.2d at 93-94; see also Commonwealth v. Hunter, supra, 294 Pa.Super. at 56, 439 A.2d at 747. Exceptional circumstances exist,

... (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.

Commonwealth v. Bolden, supra, 472 Pa. at 611, 373 A.2d at 94 (citations omitted); see also Commonwealth v. Reagan, supra, 330 Pa.Super. at 418-19, 479 A.2d at 622; Commonwealth v. Hunter, supra.

Here, we find nothing in the record to suggest that “exceptional circumstances” exist that would allow an interlocutory appeal in this case. The Mental Health Procedures Act specifically provides that even if the court refuses to enter a pre-trial acquittal based on a lack of criminal responsibility, the defendant still “may raise the defense at such time as he may be tried.” See 50 Pa.Stat.Ann. § 7404(a). Thus, the precise issue that Scott seeks to have reviewed at this time—i.e., whether he was legally insane at the time he committed these offenses and thus should be acquitted on all charges—can be presented to the fact-finder at his upcoming trial. If the jury rejects Scott’s insanity defense, he still will be free to challenge that finding on a direct appeal. Cf. Commonwealth v. Tempest, supra. On the other hand, if the fact-finder accepts Scott’s argument and acquits him of all charges, it would obviate the necessity for any appeal relating to criminal responsibility. On this record, we see no exceptional circumstances, such as a potential for a “great injustice,” an issue of “basic human rights,” or an issue of “great importance” that would warrant our allowing this case to proceed in a piecemeal fashion. See Commonwealth v. Bolden, supra; Commonwealth v. Reagan, supra; Commonwealth v. Hunter, supra. Accordingly, we must quash Scott’s appeal.

For the foregoing reasons, we quash the appeal of defendant Scott, and we affirm the order below.

Defendant Scott’s appeal quashed. Order below affirmed.

      . Section 7402(d) provides that a court, on application or on its own motion, may order a competency examination at any stage in the proceedings. Id.

      . In this regard, the court's orders mirrored the language of § 315(b) of the Crimes Code. According to § 315(b),
      the phrase “legally insane" means that, at the time of the commission of the offense, the actor was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if the actor did know the quality of the act, that he did not know that what he was doing was wrong.

        Id. This definition is a virtually verbatim enactment of the common law M'Naghten rule. Compare, e.g., Commonwealth v. Roberts, 496 Pa. 428, 434, 437 A.2d 948, 951 (1981) (quoting Commonwealth v.

        Woodhouse, 401 Pa. 242, 249-50, 164 A.2d 98, 103 (1960); Regina v. M’Naghten, 10 Cl. & Fin. 200, 8 Eng.Rep. 718 (1843)).

      . The Mental Health Procedures Act specifically authorizes the court to direct inquiry into these areas. See 50 Pa.Stat.Ann. § 7402(e)(4)(ii)-(iv).

      . The doctors’ reports had been filed before the hearing.

      . Under the Crimes Code, the defendant has the burden of establishing legal insanity by a preponderance of the evidence. See 18 Pa.C.S.A. § 315(a).

      . In his report, Doctor Willis also stated “I do not believe that Mr. Scott had the mental capacity to have specific intent to kill another human being.” This opinion is relevant to the question of diminished capacity.

      . The briefs are included in the certified record on appeal.

      . Section 7404(a) provides in relevant part that, when a court conducts a hearing on competence (pursuant to § 7403), “the court may, in its discretion, also hear evidence on whether the person was criminally responsible for the commission of the crime charged.” Id. If the court finds the person “to have lacked criminal responsibility, an acquittal shall be entered.” Id.

      . Scott does not dispute the competency determination.

      . The court characterized the psychiatric testimony as follows: Psychiatrist Willis’ opinion is that at the time of the offense, the Defendant “lacked substantial capacity either to appreciate the wrongfulness of his alleged conduct or to conform his conduct to the requirements of the law and was operating under such defect of reason from disease of the mind as not to know the nature and quality of the act he was doing. I do not believe Mr. Scott had the mental capacity to have specific intent to kill another human being.” Psychiatrist Weiss testified that the Defendant "Because of his mental disease at the time of the offense, he [sic] lacked substantial capacity to appreciate the wrongfulness of his behavior and to conform his conduct to the requirements of the law. Because of his mental disease at the time of the offense, he was laboring under a defect of reason, such that, although he may have known the nature and quality of his acts, he did not know that what he was doing was wrong.”
      Trial Court Opinion at 6-7.

      . Scott’s argument in this regard focuses on his disagreement with what he perceives to be the court’s finding that his mental disease resulted from voluntary intoxication.

      . The Act also provides a procedure by which the court can separate the question of responsibility from other issues in the case:
      (c) Bifurcation of Issues or Trial.—Upon trial, the court, in the interest of justice, may direct that the issue of criminal responsibility be heard and determined separately from the other issues in the case and, in a trial by jury, that the issue of criminal responsibility be submitted to a separate jury. Upon a request for bifurcation, the court shall consider the substantiality of the defense of lack of responsibility and its effect upon other defenses, and the probability of a fair trial.

        Id. § 7404(c).

      . An acquittal does not necessarily mean that the defendant will go free. Section 7406 provides that "the attorney for the Commonwealth, on his own or acting at the direction of the court, the defendant, his counsel, the county administrator, or any other interested party may petition the same court for an order directing involuntary treatment....” Id.

      . Specifically, Knecht’s testimony suggested that Scott purposefully committed the criminal acts in a secluded spot, and purposefully fled from the scene when a car approached. See N.T. May 11, 1983, at 10-11, 16 (R.R. at 119a-20a, 125a). Christine Metzler’s testimony suggested that Scott was aware that he killed someone, and that it was wrong to do so. See N.T. July 24, 1989, at 44 (R.R. at 88a). Her testimony also suggested that Scott was aware enough of the wrongfulness of his actions to attempt to destroy evidence, disguise his appearance, and flee. Id. at 45-49 (R.R. at 89a-93a).
      We should note that it is unclear whether pre-trial habeas corpus relief should ever be available upon a claim of legal insanity or diminished capacity. The Crimes Code places the burden upon the defendant to establish insanity by a preponderance of the evidence. 18 Pa.C.S.A. § 315(a). Because the defendant has this affirmative burden, it is difficult to imagine how a claim of insanity would lead to a ruling, as a matter of law, that the Commonwealth failed to establish a prima facie case. Similarly, it would be inappropriate to grant pre-trial habeas corpus relief based on a diminished capacity claim because the defense of diminished capacity is said to concede general criminal liability. See, e.g., Commonwealth v. Walzack, 468 Pa. 210, 221, 360 A.2d 914, 920 (1976).

      . The Commonwealth concedes this point in its brief: “Although not specifically mentioned in the Petition for Writ of Habeas Corpus by the defendant, the Court, properly, presumed the defendant to be invoking the protections of 50 Pa.C.S.A. § 7404 which, unlike habeas corpus relief, allows a pretrial acquittal on the basis of insanity.” Brief for Appellant at 15 (emphasis supplied). Despite this concession, the Commonwealth addresses only the habeas corpus question, and makes no argument concerning the propriety of the court’s decision under the Act.

      . As we have noted above, the Act authorizes the court to direct an incompetency examination to include “an opinion as to whether [the defendant] had the capacity to have a particular state of mind, where such state of mind is a required element of the criminal charge." 50 Pa.Stat.Ann. § 7402(e)(4)(iv). This section is an apparent reference to a “diminished capacity” defense. Cf. Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976).

      . The nearest the Commonwealth comes to making any argument concerning the Mental Health Procedures Act is the suggestion in its brief that “[t]he court appears to base its decision on a reluctance to acquit the defendant based solely on expert testimony, which is within its power [under the Act], and on a misplaced moral indignation over the fact that the Commonwealth would file a Notice of Aggravating Circumstances in Support of the Death Penalty....” Brief of Appellant at 18 (emphasis supplied).

      . As a general matter, a finding of diminished capacity provides much more limited relief than a finding of legal insanity. Cf. Commonwealth v. Zettlemoyer, 500 Pa. 16, 28, 454 A.2d 937, 943 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Diminished capacity, if established, operates only to negate premeditation and thereby reduce a first degree murder charge to a lesser degree of murder. See Commonwealth v. Terry, 513 Pa. 381, 390, 393, 521 A.2d 398, 402-03, 404 (1987), cert. denied sub nom. Terry v. Pennsylvania, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987). The limited nature of the defense was stressed in Commonwealth v. Weinstein, 499 Pa. 106, 451 A.2d 1344 (1982), where the Court stated:

        Walzack stands for the proposition that psychiatric testimony relevant to the cognitive functions of deliberation and premeditation is competent on the issue of specific intent to kill. Thus psychiatric testimony is competent in Pennsylvania on the issue of specific intent to kill if it speaks to mental disorders affecting the cognitive functions necessary to formulate a specific intent.

        Id., 499 Pa. at 114, 451 A.2d at 1347; see also Commonwealth v. Terry, supra; Commonwealth v. Zettlemoyer, supra.

      Legal insanity (i.e., M’Naghten insanity), on the other hand, may be a defense to any “charged offense.” 18 Pa.C.S.A. § 315(a). We should note, however, that, under the Crimes Code, if an actor’s legal insanity results from voluntary intoxication, the insanity defense has the same ultimate effect as a finding of diminished capacity, i.e., evidence of such a condition may be offered only "whenever it is relevant to reduce murder from a higher degree to a lower degree of murder." Id. § 308.
      In light of the limited nature of the diminished capacity defense, it is questionable whether the court’s authority to determine "criminal responsibility” under § 7404(a) of the Act includes the power to make a finding of diminished capacity. Cf. Commonwealth v. Walzack, supra, 468 Pa. at 213-14, 360 A.2d at 916 ("today’s decision in no way affects the vitality of the M’Naghten test as the sole standard in this Commonwealth for determining criminal responsibility where the actor alleges mental illness or defect.”) (footnote omitted) (emphasis supplied). Accord Commonwealth v. Weinstein, supra, 499 Pa. at 115, 451 A.2d at 1348.
      A second potential difficulty involves the dismissal of the charge of attempted criminal homicide. Our Supreme Court has indicated that the diminished capacity defense operates only to negate the specific intent required forfirst degree murder, and is not available for other specific intent crimes. See, e.g., Commonwealth v. Terry, 513 Pa. at 393, 521 A.2d at 404; see also id. at 394, 521 A.2d at 404 (diminished capacity only relevant if "the mental illness involved affects cognitive functions to an extent which precludes deliberation and premeditation.") (emphasis supplied); Commonwealth v. Swartz, 335 Pa.Super. 457, 484 A.2d 793 (1984) (in light of Supreme Court language suggesting that diminished capacity defense is limited to first degree murder, defense unavailable in robbery prosecution), allocatur denied (May 7, 1985). Cf. Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984).
      It would appear that the only basis to acquit a defendant on a charge other than first degree murder on criminal responsibility grounds would be a finding of legal insanity pursuant to the M’Naghten rule and 18 Pa.C.S.A. § 315. However, the court specifically refused to find Scott insane under M’Naghten because it determined that Scott's mental disease was traceable to “the habitual long term abuse of drugs.” See Trial Court Opinion at 20. Moreover, even if the court had found Scott to be legally insane, its finding that his "mental disease” resulted in part from voluntary drug intoxication would result, at best, only in a reduction of the first degree murder charge to a lesser degree. See 18 Pa.C.S.A. § 308.


author: KELLY, Judge: JOHNSON, Judge,

text:
    578 A.2d 942
    COMMONWEALTH of Pennsylvania, Appellant, v. Drew De MARCO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Blair De MARCO, Appellee.
    Superior Court of Pennsylvania.
    Submitted Jan. 18, 1990.
    Filed July 26, 1990.

      Catherine Marshall, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Dennis J. Cogan, Philadelphia, for appellees.
    Before OLSZEWSKI, KELLY and JOHNSON, JJ.
   KELLY, Judge:

In this case we are called upon to determine whether the trial court improperly suppressed an answering machine tape upon which incriminating information was recorded, based upon a conclusion that it was subject to statutory exclusion as the fruits of an unlawful interception under the Wiretapping and Electronic Surveillance Control Act. We are also asked to determine if the failure to include a certification of impairment in the notice of appeal is a fatal defect, or whether such an omission may be cured by submission of a separate certification statement.

We find that the separate certification statement filed by the Commonwealth fulfilled the certification requirement. We also find that the trial court erred in suppressing the answering machine tape. Consequently, we reverse the suppression order.

Facts and Procedural History

The facts and procedural history are not in dispute. They may be briefly summarized as follows.

Following a two month investigation, the Philadelphia police applied for, and were granted, a warrant to search appellee’s home at 9582-A James Street in Philadelphia. The probable cause affidavit demonstrated probable cause to believe that a substantial bookmaking operation was being conducted on the premises. The search warrant specifically authorized the police to seize telephones, recorders and tapes, among various other items specifically listed. The search produced significant incriminating evidence, including an answering machine tape on which inculpatory statements regarding the gambling operation were recorded. Appellees were arrested and charged with pool-selling and bookmaking offenses.

Prior to trial in the Philadelphia Municipal Court, appellees moved to suppress the answering machine tape because it was made in alleged violation of the Wiretapping and Electronic Surveillance Control Act and was therefore subject to suppression. Philadelphia Municipal Court Judge Morton Erase agreed, and ordered the tape suppressed.

The Commonwealth filed timely notice of appeal of the suppression order to the Philadelphia Common Pleas Court. Appellees, however, filed a motion to quash based upon the absence of the required certification of impairment. Some months later, the Commonwealth filed a supplemental statement certifying impairment. A short time after that, the common pleas court granted the motion to quash specifically dismissing the supplemental certification as untimely. The common pleas court also noted that it agreed with the municipal court suppression order on the merits. This timely appeal followed.

Certification

In Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985), our Supreme Court held that when the Commonwealth certified that the suppression of evidence substantially handicaps the prosecution, “that certification is not contestable,” and “in and of itself precipitates and authorizes the appeal.” 486 A.2d at 386. See also Commonwealth v. Smith, 518 Pa. 524, 544 A.2d 943 (1988) (plurality). In Dugger, our Supreme Court explained: 486 A.2d at 385-86, quoting Commonwealth v. Bosurgi, 411 Pa. 56, 63, 190 A.2d 304, 308 (1963). (Emphasis added).

From the point of view of the Commonwealth, two possible situations may arise: (a) the order of suppression will result in a termination and conclusion of the prosecution or (b) while the order of suppression will not result in a termination or conclusion of the prosecution, it will result in a prosecution wherein the Commonwealth is substantially handicapped because it cannot present all its available evidence. In the first situation, the element of finality inherent in the order of the suppression is apparent and sufficient to render the order appeal-able. In the second situation, although the element of finality in the order is not so apparent it is nevertheless present.
Without a right of appeal in the Commonwealth in the second situation, the Commonwealth is completely deprived of any opportunity to secure an appellate court evaluation of the validity of the order of suppression which forces the Commonwealth to trial without all of its evidence. The evidence suppressed may well mark the difference between success and failure in the prosecution; to deny the Commonwealth its only opportunity of securing an appellate review to determine whether the evidence was properly suppressed is highly unfair to the Commonwealth and the interests of society which it represents.

When our Supreme Court spoke to the Commonwealth going to trial “without all of its evidence” (emphasis in original) it referred to the situation where any relevant evidence is suppressed, and not merely where all relevant evidence is suppressed. Our Supreme Court explained the reason for avoiding any fine balancing of the degrees of handicap resulting from various suppression orders as follows:

To require that a suppression record be cluttered with questions of ultimate relevance is senseless. A suppression record ought not, and properly handled does not, disclose the ultimate relevance of a piece of evidence or why a prosecution could not go forth if that evidence is suppressed.
The relevancy of a piece of evidence can rarely be seen outside the context of the case, even then, not always clearly. Most often considerable thought and argument must be supplied before a piece of evidence is clearly discerned as relevant. All relevant evidence may not be necessary to a prosecution, but one piece of suppressed evidence may make all other evidence irrelevant. It is an argument all its own and certainly must be an argument dehors the record of a suppression court.

486 A.2d at 386.

Moreover, under our system of law the slenderest of reeds may sustain a reasonable doubt. Consequently, whenever possible, the prosecution in discharging its responsibility to the community advisably presents multiple proofs of the various elements of an offense to ensure that a strained doubt as to an individual proof does not become the reed by which an acquittal is sustained. When a jury weighs all the evidence in its balance, the absence of a single item of relevant evidence may be the subtle difference which tips the balance. For defendants there are post-verdict appeals to question whether evidence was improperly kept from the scales; for the Commonwealth there are none. Thus it is, that interests of justice generally favor interlocutory review of Commonwealth appeals from suppression orders. See Commonwealth v. Dugger, supra, 486 A.2d at 386; id., 486 A.2d at 387 (Hutchinson, J., concurring). Of course, the general prohibitions and sanctions against frivolous and dilatory appeals apply to these as well as all other appeals. Id.

Commonwealth certification of substantial hardship has been characterized as a prerequisite to appellate review. Commonwealth v. Dugger, supra, 486 A.2d at 387. Moreover, this Court has held that the absence of a proper certification renders a Commonwealth appeal from a suppression order subject to a motion to quash. See Commonwealth v. Slovikosky, 374 Pa.Super. 441, 543 A.2d 553 (1988). As certification was made prior to the order to quash in this case, however, neither Dugger nor Slovikosky can be deemed controlling, or particularly supportive of the quashal order in this case.

Rather, the instant case presents an issue of first impression as to the manner and timing of the certification required when the Commonwealth appeals a suppression order. The notice of appeal submitted by the Commonwealth did not contain the required certification. Appellee filed a motion to quash. While the motion was still pending, though several months after the motion to quash was filed, the Commonwealth filed with the common pleas court a separate certification statement. Shortly after that, the trial court quashed the appeal, dismissing the supplemental certification as untimely.

Neither the parties nor the trial court have cited to this Court any specific case precedent or formal rule (local or general) dictating the manner and timing of the Commonwealth’s required certification. Thus, while inclusion of certification in the notice of appeal may certainly be permissible or even preferable, there is as yet no affirmative requirement that the certification be presented at that time, or in that manner. Thus, it is far from clear that the certification was required to be included in the notice of appeal as suggested by appellee and the common pleas court.

Moreover, rules of Appellate Procedure and Rules of Criminal Procedure are to be construed liberally so as to secure and facilitate the just, speedy, and inexpensive administration of justice in this Commonwealth. See Pa.R.A.P. 105; Pa.R.A.P. 107; Pa.R.A.P. 2101; Pa.R.Crim.P. 2; Pa.R.Crim.P. 90; Pa.R.Crim.P. 150. Even if there had been a formally promulgated rule regarding the timing and manner of the required hardship certification, the common pleas court would still have been required to construe it liberally rather than mechanistically. The fact that the time and manner for providing the certification of hardship required for appeals from suppression orders has not been specifically set forth in a procedural rule provides all the more reason for liberality in this respect. Hence, we conclude that formal certification filed anytime prior to the granting of a motion to quash based upon the absence of the certification constitutes sufficient compliance with the certification requirement set forth in Dugger.

Even assuming, arguendo, that our Supreme Court intended certification to be provided in the notice of appeal, it would not follow that the failure to include a certification in the notice of appeal would be a fatal and incurable defect. To the contrary, settled case law in closely analogous cases compels a conclusion that such a defect would be in fact curable.

Procedurally speaking, certification of substantial hardship by the Commonwealth in appeals from suppression orders is closely analogous to the inclusion Pa.R.A.P. 2119(f) statements in briefs seeking to appeal from the discretionary aspects of sentence. In both cases, the absence of the required statement precludes appellate review, as the statement is deemed a procedural prerequisite to appellate review.

In Commonwealth v. Gambal, 522 Pa. 280, 561 A.2d 710 (1989), our Supreme Court held that a panel of this Court had abused its discretion in denying an appellant’s prompt application for reconsideration, and for leave to file a supplement to the brief to supply an omitted Pa.R.A.P. 2119(f) statement. In Commonwealth v. Douglass, 370 Pa.Super. 104, 535 A.2d 1172 (1988), a panel of this Court noted that it had exercised its discretion to permit counsel to file a post-argument supplement to cure the omission of a Pa.R.A.P. 2119(f) statement from the appellate brief which had been filed several months earlier. 535 A.2d at 1173; id., 535 A.2d at 1174 (Kelly, J., concurring). Finally, in Commonwealth v. Zeitlen, 366 Pa.Super. 78, 530 A.2d 900 (1987), a panel of this Court exercised its discretion sua sponte to direct counsel to file a supplemental Pa.R.A.P. 2119(f) statement to correct the omission of the required statement from the brief filed on appellant’s behalf. In a concurring opinion in Zeitlen, this author explained:

... this Court has generally exercised great forbearance in exercising its discretionary powers under Pa.R.A.P. 902 and Pa.R.A.P. 2101 to quash briefs and dismiss appeals. Only on a few occasions, in extreme cases, and with great reluctance has this Court ordered criminal appeals quashed because of counsel’s failure to comply with rules of appellate procedure.
In Commonwealth v. Taylor, 306 Pa.Super. 1, 451 A.2d 1360 (1982), we explained:
The Court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions which are correctable through less drastic means. However, where gross deviations from the appellate rules, which substantially impair our ability to exercise the power of review, are present, we will not hesitate to suppress the party’s brief and quash the appeal.
451 A.2d at 1361. (Emphasis added). Clearly, the omission in the instant case is “correctable through less drastic means.”
Furthermore, it is important to note that the question of whether to quash, dismiss, or deny allowance of a criminal appeal based upon counsel’s procedural errors involves constitutional questions which may not lightly be dismissed, and policy considerations which cannot be ignored. When this Court exercises its discretionary authority to quash, dismiss, or deny allowance of appeal based upon procedural defects, it places the entire burden of counsel’s errors upon the appellant rather than the offending counsel. In appeals by the Commonwealth, the government’s right to challenge an allegedly inappropriate sentence is irretrievably lost. In appeals by a defendant, such an order delays review and merely paves the way for the defendant to file a PCHA petition on the basis of counsel’s ineffectiveness with respect to the procedural errors. These are results which should be avoided when possible.
Certainly, this Court must enforce the Pennsylvania Rules of Appellate Procedure. In Commonwealth v. Stoppie, 337 Pa.Super. 235, 236-37, 486 A.2d 994, 995 (1984), this Court noted “a trend in which appellate counsel ignore our appellate rules concerning the preparation of briefs.” If this Court merely issues toothless admonitions to counsel, this Court will no doubt continue to suffer more such violations in the years to come.
However, the extreme sanctions of quashing, dismissing, or denying allowance of appeal are not the only responses available to this Court. In Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985), the United States Supreme Court noted the existence of appropriate alternative responses when it stated:
To the extent that a State believes its procedural rules are in jeopardy, numerous courses remain open. For example, a State may certainly enforce a vital procedural rule by imposing sanctions against the attorney rather than against the client. Such a course may well be more effective than the alternative of refusing to decide the merits of an appeal and will reduce the possibility that a defendant who was powerless to obey the rules will serve a term in jail on an unlawful conviction [or sentence].
469 U.S. at 399, 105 S.Ct. at 837. I agree; when feasible, the offending counsel rather than the powerless client should bear any penalty for counsel’s violation of procedural rules.
I would affirm our statement in Commonwealth v. Taylor, supra, that “the Court will not meticulously examine each brief which comes before us with the express intent of suppressing those which contain minor defects or omissions....” Where defects are in fact minor, no action by this Court is necessary.
When a brief contains substantial defects which command the attention of the Court, but which may be corrected by less drastic means than quashing, dismissing or denying allowance of appeal, the Court may enter appropriate orders directing counsel to bring the brief into compliance with the rules. Such orders may, of course, be enforced by the Court’s general contempt powers.
When a brief .submitted to the Court is at such variance with the rules as to substantially impair the Court’s power of review, and where reasonable, less drastic measures do not exist to correct the defects, the brief will be quashed and the appeal dismissed. Though the burden on appellant is regrettable, this Court cannot act as both court and counsel.

530 A.2d at 903-04 (citations omitted, emphasis added).

Embracing and expanding upon this basic reasoning, both our Supreme Court and a subsequent panel of this Court have found that even when a brief submitted in a criminal appeal is so defective as to require that it be quashed or struck, the appeal itself would not be quashed; rather, new counsel would be appointed and directed to file a conforming brief. See Commonwealth v. Albert, 522 Pa. 331, 335-37, 561 A.2d 736, 738-39 (1989); Commonwealth v. Ely, 381 Pa.Super. 510, 554 A.2d 118 (1988).

Based upon the foregoing, we conclude that while under Albert, Ely and Zeitlen it is apparent that the trial court had discretion as to whether to direct the Commonwealth to correct the defect, nonetheless, under Gambal it would not be necessarily an abuse of discretion to decline to exercise that direction and instead quash an appeal based upon a substantial procedural defect. Commonwealth v. Gambal, supra 561 A.2d at 714; Commonwealth v. Albert, supra, 561 A.2d at 738-39; Commonwealth v. Ely, supra, 554 A.2d at 119; Commonwealth v. Zeitlen, supra, 530 A.2d at 901. However, if before or promptly after an appeal is quashed on such procedural grounds, the appellant (Commonwealth or defendant) seeks allowance to cure the procedural defect, it would be an abuse of discretion to deny allowance to cure the defect. Commonwealth v. Gambal, supra, 561 A.2d at 714.

Neither appellee nor the trial court has advanced any persuasive explanation of how quashing this appeal would advance the interests of justice. If delay was potentially prejudicial in this matter, the trial court could have quashed the appeal promptly thereby triggering a requirement that the Commonwealth seek to cure the procedural defect promptly. (Cf. Commonwealth v. Gambal); or, the trial court could have simply directed the Commonwealth to file the required certification or withdraw the appeal. Cf. Commonwealth v. Albert; Commonwealth v. Ely; Commonwealth v. Zeitlen. While the Commonwealth’s delay in seeking to correct its omission is disapproved, we do not find that delay could have warranted the quashing of this appeal. No actual prejudice from the delay was pled or proven.

Consequently, we find that the Commonwealth’s supplemental certification of substantial impairment was sufficient to perfect jurisdiction in the common pleas court on the appeal from the municipal court suppression order, notwithstanding the fact that the certification was not contained in the notice of appeal, and despite the fact that a motion to quash based upon the absence of the certification statement had been pending several months before the supplemental certification statement was filed. Even assuming an initial defect, we find that the common pleas court abused its discretion in quashing the Commonwealth’s appeal after the supplement curing the defect had been filed.

Ordinarily, the appropriate step to take at this juncture would be to remand to the court of common pleas for review of the suppression order on its merits. In this case, however, remand is unnecessary, as the common pleas court went on to indicate its agreement with the municipal court on the merits of the suppression order, notwithstanding the fact that it quashed the appeal. We deem the common pleas court’s expression of its views on the merits to have been an alternate ruling obviating the need for remand which would only further delay ultimate resolution of the suppression issue.

Suppression/Answering Machine Tape

The municipal court held that the answering machine tape must be suppressed because the Commonwealth failed to establish that the persons leaving messages on appellant’s answering machine consented to the recording so as to bring the tape within the mutual consent exception to the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5704(4). The common pleas court agreed. We do not.

Heretofore, evidence derived from answering machine tapes have been admitted into evidence without objection on the above grounds in a variety of cases. See Matter of Sylvester, 521 Pa. 300, 307, 555 A.2d 1202, 1205 (1989); Commonwealth v. Hart, 384 Pa.Super. 573, 578-79, 559 A.2d 584, 585 (1989); Commonwealth v. Kozinn, 381 Pa.Super. 64, 552 A.2d 1096 (1989); Commonwealth v. Rozanski, 289 Pa.Super. 531, 537, 433 A.2d 1382, 1385 (1981). The municipal court, nonetheless, concluded that Commonwealth v. Jung, 366 Pa.Super. 438, 531 A.2d 498 (1987), compelled suppression. We do not find Jung controlling.

First, the portion of Jung purporting to address the merits of the Wiretapping and Electronic Surveillance Control Act issues, was (as our learned colleague Judge Johnson observed at the time) entirely dicta, without precedential authority. In Jung, once this Court found that the trial court had acquitted the defendant, all further consideration of the case was superfluous dicta. Commonwealth v. Jung, supra, 531 A.2d at 501-02; id., 531 A.2d at 504 (Johnson, J., concurring).

Second, Jung is materially distinguishable. In Jung, the defendant surreptitiously taped a conversation between himself and another participant in a live phone conversation. In the instant case, appellant set up a phone answering machine and callers left messages on the answering machine tape. While in Jung there was every reason to believe the other party to the conversation might not have known the conversation was being taped, we take judicial notice of the irrefutable fact that any reasonably intelligent person leaving a message on an ordinary answering machine would have to be aware of, and consented by conduct to, the recording of the message on the answering machine tape. Absent some special showing of unique attributes of a particular answering machine cloaking its identity as an answering machine (not suggested here), we cannot imagine how one could not know and intend that the message placed upon the answering machine tape be taped, and by the very act of leaving a message, expressly consent by conduct to the taping of that message. Thus, we find, as a matter of law, that ordinary answering machine tapes fall within the mutual consent provision of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5704(4), are not unlawful interceptions, and are not subject to the statutory exclusionary rule, 18 Pa.C.S.A. § 5721.

Moreover, we do not find that appellant was a “person aggrieved” as that term is defined in 18 Pa.C.S.A. § 5702 and incorporated in 18 Pa.C.S.A. § 5721. Specifically, we find that the legislature could not have intended those provisions to be construed to permit a defendant to seek exclusion of tapes unlawfully made by the defendant which are offered in evidence against the defendant because of inculpatory information contained on the tapes.

Assuming, arguendo, that there was not mutual consent, suppression would be governed by the following statutory provision:

§ 5721. Suppression of contents of intercepted communication or derivative evidence
(a) Motion to suppress.—Any aggrieved person in any trial, hearing, or other adversary proceeding in or before any court or other authority of this Commonwealth may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:
(1) The communication was unlawfully intercepted.

18 Pa.C.S.A. § 5721. (Emphasis added). “Aggrieved person is defined as follows:

§ 5702. Definitions
As used in this chapter, the following words and phrases shall have the meanings given to them in this section unless the context clearly indicates otherwise: “Aggrieved person.” A person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed.

18 Pa.C.S.A. § 5702. (Emphasis added).

Granted, appellant was unquestionably “a party to” the interception, and thus plausibly falls within the letter of the definition of an “aggrieved person.” How, though, could appellant be said to be “aggrieved ” in any real sense of that term?

The focus and purpose of the Wiretapping and Electronic Surveillance Control Act is the protection of privacy. With that focus in mind, any construction of the term “aggrieved person” to include the individual responsible for the invasion of privacy involved in an unlawful interception must be rejected as absurd and unreasonable (1 Pa.C.S.A. § 1922(1)), and as being contrary to what “the context clearly indicates otherwise.” 18 Pa.C.S.A. § 5702.

The absurdity of such a construction is manifest. If the person who made an unlawful interception could have the interception and all its derivative fruits suppressed, then criminal and civil remedies for violation of the act would be rendered practically impossible to execute. See 18 Pa.C.S.A. § 5703, 5728, 5747. If the interception and its fruits are to be suppressed upon motion of the person who caused the unlawful interception to be made, how is the fact of an unlawful interception to be proved? Are not the tapes of such interceptions or derivative evidence of those tapes commonly the primary evidence of such violations? The legislature could not have intended that such evidence be suppressable at the defendant’s request.

The instant case is but a short step removed from the above concededly extreme, reductio ad adsurdum, example. Here, the party setting up the allegedly unlawful interception claims aggrievement from his own illegal act. To do so, however, appellant must shift our focus from the privacy interests which the Wiretapping and Surveillance Control Act is designed to protect, to the tactical prejudice he anticipates from the inculpatory information contained on ¿the answering machine tapes. Therein lies the fallacy.

“Aggrievement” under the Wiretapping and Electronic Surveillance Control Act refers implicitly and unquestionably to the violation of privacy which an unlawful interception involves. In authorizing the suppression of unlawful interceptions and their fruits, the act is intended to mitigate the invasion of privacy involved in the unlawful interception by preventing its use against the person whose privacy was violated in any administrative, civil, or criminal proceeding. Though the price of privacy thus purchased is often steep, it is readily apparent that our legislature weighed society’s interests in the personal privacy of individuals against society’s interests in having all relevant evidence thus obtained presented in administrative, civil, and criminal proceedings, and found that the balance favored the personal privacy interests of individuals. The wisdom of the balance struck regarding the statutory exclusionary rule is, of course, a question for legislators and voters, rather than judges.

No such opposing interests are presented, however, when it is the person who made the unlawful interception who seeks the statutory suppression. Rather, society’s interests in the personal privacy of individuals and society’s interests in having all relevant evidence admitted in administrative, civil, and criminal proceedings correspond in favor of denying suppression. Succinctly, if the perpetrator of an unlawful interception is permitted to seek suppression, the Wiretapping and Electronic Surveillance Control Act would provide an inducement, rather than a deterrent, to such unlawful interceptions. On the other hand, if statutory suppression is denied to a person making or causing an unlawful interception to be made, the deterrent to such misconduct would be enhanced, at the same time the interest of justice were enhanced by the availability of the inculpatory evidence derived from the unlawful interception.

Thus, we conclude that a person responsible for, or a party to, the making of an unlawful interception may not be deemed to be an “aggrieved person” entitled to seek statutory suppression under the Wiretapping and Electronic Surveillance Control Act, as no privacy interest of that person was aggrieved by the unlawful interception. Hence, for this reason too, suppression was improper in this case.

Conclusion

Based upon the foregoing, the order quashing the Commonwealth’s appeal is Vacated, and the alternate ruling affirming the Municipal Court’s suppression order is Reversed. The Municipal Court’s suppression order is Reversed. The case is Remanded to the Municipal Court for further proceedings consistent with this Opinion. Jurisdiction is Relinquished.

JOHNSON, J., filed a dissenting opinion.

JOHNSON, Judge,

dissenting.

The only issue properly before this court is the appealability of a Municipal Court suppression order to the Court of Common Pleas of Philadelphia County. That latter court had quashed the Commonwealth’s appeal due to its failure to file a timely certification of substantial impairment. I find no abuse of discretion by the Court of Common Pleas. Accordingly, I dissent.

Philadelphia police officers executed a search warrant on the home of Drew and Blair De Marco. The officers seized four telephones, three football pools, three sheets of rice paper listing mid-October 1987 football schedules, numerous NFL schedules, numerous pens, two telephone bills, one water bill, one business card listing numerous football bets, a telephone answering machine and a cassette tape taken from inside the telephone answering machine. The De Marcos were arrested and charged with illegal pool selling and bookmaking.

After a hearing, the Municipal Court granted the De Marcos’ motion to suppress the audio contents of the seized cassette tape. Nothing else, including the tape itself, was suppressed. On March 23, 1988, the Commonwealth appealed the suppression ruling to the Court of Common Pleas. The appeal papers were neither preceded nor accompanied by a certification from the Commonwealth that the suppression order substantially impaired the prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

On July 27, 1988, the De Marcos filed a motion to quash the appeal along with a brief addressing the merits. The motion to quash averred, in pertinent part:

3. The appeal is defective on its face, in that the Court of Common Pleas does not have general jurisdiction to review all orders issued in Municipal Court. Rather, jurisdiction in Common Pleas Court, following a grant of a motion to suppress, is limited to circumstances where the Commonwealth certifies that its case is either terminated or substantially impaired as a result of the trial court’s suppression order.
4. The failure of the Commonwealth to certify that its case is, at least, substantially impaired as a result of the suppression order divests this court of proper jurisdiction.

Defendants’ Motion to Quash The Appeal, filed July 27, 1988, (Emphasis in the original.)

Although the Motion to Quash clearly set forth the basis of the prayer for relief, the Commonwealth took no steps to respond to the motion until March 1, 1989. Then, nearly a full year after the appeal had been taken, and more than seven months after the De Marcos formally raised the issue, the Commonwealth filed its Certificate of Substantial Impairment. The following Monday, the Commonwealth mailed a copy of the certificate to the trial judge and to counsel for the De Marcos.

The majority acknowledges that the certification of substantial hardship is a prerequisite to appellate review under Commonwealth v. Dugger, supra, 506 Pa. at 547, 486 A.2d at 387. The majority also recognizes that this court has followed that rule, and has determined that, if certification is absent, the attempted appeal is subject to being quashed. Commonwealth v. Slovikosky, 374 Pa.Super. 441, 444, 543 A.2d 553, 554 (1988). In addition, the majority necessarily recognizes that quashing an appeal can be an appropriate response if there is a substantial procedural defect. Commonwealth v. Gambal, 522 Pa. 280, 286, 561 A.2d 710, 714 (1989).

In seeking to justify the Commonwealth’s dereliction in this matter, the majority would first introduce an element of “prejudice” and “delay” into the analysis. It would then determine that the Commonwealth’s “delay” in filing a certification of substantial hardship did not result in any “actual prejudice” and then conclude that the trial court abused its discretion by quashing the Commonwealth’s appeal “after the supplement curing the defect had been filed.” Majority slip opinion, pages 11-12. I cannot agree with this distortion of the rule set forth in Dugger.

Our Supreme Court declared that the certification of substantial handicap, “in and of itself, precipitates and authorizes the appeal.” Dugger, supra, 506 Pa. at 545, 486 A.2d at 386. I understand this to mean that there can be no valid appeal until the certification is filed. In the case now before us, the Commonwealth does not, and could not, contend that it was unaware of the Dugger requirement on March 23, 1988 when it filed its Notice of Commonwealth Appeal. Four months later, the De Marcos made it crystal clear that they intended to have the matter settled, based upon the Commonwealth’s failure to comply with the Dugger rule. From the record, I can only conclude that the Commonwealth was content to rest upon a defective notice for nearly a full year after the appeal and more than seven months after the issue was expressly raised.

The Honorable Anthony J. DeFino properly ruled that to recognize such an untimely certification would circumvent its function as a condition precedent to the invocation of appellate jurisdiction. Although not central to the decision of this case, we should not lose sight of the fact that the trial court had only suppressed the audio contents of the seized cassette tape, leaving undisturbed the quantity of other evidence seized by the arresting officers. Remaining undisturbed also are the results of the pen registers attached to the two telephone lines utilized by the De Marcos at the residence here involved.

Did Judge DeFino abuse his discretion by granting the De Marco’s unopposed motion to quash the appeal, where the certification of hardship was submitted only after the trial court had indicated it would rule on the motion to suppress and where the Commonwealth relied on caselaw which was inapposite to the matter under review? I conclude that he did not.

The only cases that the Commonwealth cited to Judge DeFino to support the its year-late filing of its certificate were Commonwealth v. Fioretti, 371 Pa.Super. 535, 538 A.2d 570 (1988) and Commonwealth v. Conway, 368 Pa.Super. 488, 534 A.2d 541 (1987). Letter dated March 6, 1989 forwarding Certificate of Substantial Impairment to Judge DeFino. R.R. 14a. Neither of these cases are helpful in resolving the issue presented here. In both cases, our most distinguished colleague, the Honorable Frank J. Montemuro, Jr., found “that the Commonwealth has an absolute right of appeal to this Court to challenge the validity of the.... suppression order[s].” Fioretti, 371 Pa.Super. at 538, 538 A.2d at 571; Conway, 368 Pa.Super. at 490, 534 A.2d at 542. In both cases, this court was reviewing suppression orders entered in the Court of Common Pleas. In both cases, the Commonwealth had filed their certification in this court contemporaneous with taking the appeal. In both cases, we did nothing more than restate the law laid down in Dugger.

This appeal, however, raises the issue of why the Commonwealth failed, within a reasonable time, to certify a substantial handicap in the face of a motion to suppress based upon such failure. For reasons not explained, the Commonwealth chose to submit this appeal on briefs rather than undergo examination by this court at oral argument. Absent the tender of any plausible explanation or excuse for the Commonwealth’s one year delay in filing the certificate, I refuse to fault the trial court for granting the motion to quash. I therefore must vigorously dissent from so much of the majority opinion as would find an abuse of discretion by the trial court’s grant of the motion to quash.

I would also dissent from so much of the majority opinion that would attempt to review the action of the Municipal Court in suppressing the audio content of the cassette tape. Without citation to authority, the majority finds “the common pleas court’s expression of its views on the merits to have been an alternate ruling obviating the need for remand.” Majority slip opinion, page 12. I find this implausible.

The order from which this appeal has been taken sets forth in its entirety:

ORDER

AND NOW, this 11th day of April 1989, it is the order of this Court that the appeal of the Commonwealth is quashed due to its failure to file a timely certification of substantial impairment.
By virtue of its ruling, the Court did not have to concern itself with the issue concerning the suppression of the audio tape. However, the Court perused this issue and is in accord with the opinion filed by Judge Erase supporting his basis for the granting of the order.
BY THE COURT:

After the Commonwealth perfected its appeal to this Court, Judge DeFino prepared and filed his Opinion pursuant to Pa.R.A.P. 1925. That opinion limits itself to the reasons for the order quashing the appeal. The opinion is silent on all of the issues relating to the suppression of the audio tape. This is consistent with the trial court’s recognition that the only issue ripe for review in this court was the order quashing the appeal from the Municipal Court.

The Commonwealth seemingly concedes this. I agree with the Commonwealth’s characterization of the trial court’s endorsement of the Municipal Court’s suppression order as gratuitous. It was not required for disposition of the appeal before Judge DeFino. I would not seek to resolve this issue without the benefit of both the trial court’s considered opinion and briefs from the parties directed towards acknowledged issues on appeal arising from clearly determined claims. I feel that we are called upon here only to decide whether the trial court abused its discretion in quashing the appeal from Municipal Court. I would simply hold that it did not. Commonwealth v. Conway, supra, Kelly, J. concurring, 368 Pa.Super. at 501-02, 534 A.2d at 548.

      . That the price of such privacy may be quite high is illustrated in the following scenario. A young woman agrees to go on a date with a young man. The young man forcibly rapes the young woman, confident that she will either not report the rape or that if reported his false claim of consent will raise the required reasonable doubt. The next day, he calls his victim and makes incriminating remarks over the phone. Under the current statute, if the victim had the means and the presence of mind to tape the remarks, the tape of the rapist’s inculpatory remarks would be suppressed and she could be charged with a third degree felony.