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2025 PA Super 292
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHASTATY LA DEAN AILEY : No. 793 MDA 2025
Appeal from the Order Entered May 19, 2025
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0001533-2021
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.
OPINION BY LAZARUS, P.J.: FILED: DECEMBER 31, 2025
The Commonwealth of Pennsylvania appeals from the order, entered in
the Court of Common Pleas of Berks County, granting Defendant Chastaty La
Dean Ailey’s motion to suppress. After careful review, we grant Ailey’s
application to quash and quash this appeal.
In light of our disposition, a recitation of the facts is unnecessary. On
January 28, 2021, Ailey was charged with several drug-related offenses as a
result of a vehicle stop. After significant delays due to discovery requests and
pre-trial conferences, on August 2, 2024, Ailey filed an omnibus suppression
motion.
On October 15, 2024, and December 4, 2024, the trial court conducted
a bifurcated suppression hearing, after which it permitted the parties to
request transcripts and submit additional memoranda in support of their
respective positions. On May 19, 2025, after receiving the parties’
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memoranda, the trial court granted Ailey’s motion to suppress. See Order
and Opinion, 5/19/25, at 1-13.
On June 12, 2025, the Commonwealth filed a timely notice of appeal in
which it stated that it was appealing the dismissal of the criminal complaint.1
See Notice of Appeal, 6/12/25. However, the Commonwealth failed to include
the requisite Pa.R.A.P. 311(d) certification. See Pa.R.A.P. 311(d) (“In a
criminal case, under the circumstances provided by law, the Commonwealth
may take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.”).
On June 23, 2025, the Commonwealth, having realized its errors, filed,
in the trial court, a request for leave to amend its notice of appeal nunc pro
tunc. See Motion for Leave to File Amended Notice of Appeal Nunc Pro Tunc,
6/23/25, at 1-2 (Commonwealth requesting nunc pro tunc relief to correct
defective notice of appeal and asserting assistant district attorney was on
vacation as basis for failure to timely correct defect). On June 25, 2025, the
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1 In its notice of appeal, the Commonwealth mistakenly stated that it appealed
from “the trial court’s [o]rder dated the 19th day of May 2025, which granted
the dismissal of the Criminal Complaint.” See Notice of Appeal, 6/12/25, at
1. However, the Commonwealth attached a copy of the trial court’s order
granting suppression to the notice of appeal. See id. at 3. In the record
before this Court there is no order dismissing the criminal complaint entered
on May 19, 2025. Nevertheless, in light of our disposition and the
Commonwealth’s failure to include the requisite Rule 311(d) certification, we
decline to remand for the Commonwealth to address this error. See
Commonwealth v. Young, 265 A.3d 462, 475 (Pa. 2021) (permitting
appellate courts to remand, pursuant to Pa.R.A.P. 902, for correction of non-jurisdictional defects in notice of appeal).
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trial court granted the Commonwealth’s request and, on June 30, 2025, the
Commonwealth filed an amended notice of appeal nunc pro tunc. See
Amended Notice of Appeal, 6/30/25. The amended notice of appeal states
that the Commonwealth appeals from the order granting suppression and
includes the requisite Rule 311(d) certification. See id.
On July 29, 2025, Ailey filed an application to quash the
Commonwealth’s appeal. See Application to Quash, 7/29/25, at 1-4
(unpaginated). Ailey argues that Rule 311(d) is a jurisdictional requirement
that the Commonwealth must satisfy. See id. at 2-3 (unpaginated). Ailey
asserts that, where the Commonwealth fails to include the requisite Rule
311(d) certification, the Commonwealth’s appeal must be quashed, pursuant
to Commonwealth v. Dugger, 486 A.2d 382 (Pa. 1985). See Application to
Quash, 7/29/25, at 2-3 (unpaginated). Ailey acknowledges that the
Commonwealth’s first notice of appeal was timely filed but contends that the
Commonwealth’s failure to include the Rule 311(d) jurisdictional requirement
is a fatal flaw that cannot be remedied by subsequent filings. See
id. (citing
Commonwealth v. Malinowski,
671 A.2d 674 (Pa. 1996)).
On August 2, 2025, the Commonwealth filed an answer in which it
concedes, as it must, that its original, timely June 12, 2025 notice of appeal
did not include the required Rule 311(d) certification. See Answer to
Application to Quash, 8/2/25, at 1-3. However, the Commonwealth asserts
that it remedied this defect in its nunc pro tunc amended notice of appeal.
See id. at 3-4. The Commonwealth argues that this procedural misstep is
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no different than when a trial court reinstates direct appellate
rights[,] which is a common occurrence. Further, this instance is
also similar to an amendment of a concise statement of matters
complained of on appeal, where the trial court[,] at [its]
discretion, can allow amendment as long as the request is made
prior to the trial court record being forwarded to the Superior
Court and before the [t]rial [c]ourt opinion is rendered.
Id. at 3. The Commonwealth contends that Malinowski is distinguishable
because, here, it is not engaged in gamesmanship and has attempted to cure
the Rule 311(d) defect in its initial filing. See Answer to Application to Quash,
8/2/25, at 4.
This Court has previously explained our jurisdiction over interlocutory
appeals from orders granting suppression motions:
The jurisdiction of this Court is generally confined to appeals from
final orders of the courts of common pleas. Commonwealth v.
Matis, [] 710 A.2d 12, 17 ([Pa.] 1998) (citing 42 Pa.C.S.A. §
742). An order is final if it effectively puts a litigant out of court;
thus, pretrial orders are ordinarily considered interlocutory and
not appealable[.] However, an exception to the final order rule
exists in orders of the trial court suppressing evidence the
Commonwealth seeks to admit in a criminal trial. A
Commonwealth appeal in a criminal case is governed by [Rule]
311, which permits the Commonwealth to take an interlocutory
appeal as of right from a pretrial suppression order when the
Commonwealth certifies that the order will “terminate or
substantially handicap the prosecution.” Pa.R.A.P. 311(d); []
Dugger, [] 486 A.2d [at] 382[.]
Commonwealth v. Knoeppel, 788 A.2d 404, 406 (Pa. Super. 2001) (some
citations omitted). Importantly, Pa.R.A.P. 904(e), related to the required
content of notices of appeal, states that when the Commonwealth appeals
pursuant to Rule 311(d), the notice “shall include a certification by counsel
that the order will terminate or substantially handicap the prosecution.”
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Pa.R.A.P. 904(e) (emphasis added). Our Supreme Court has stated, “By
definition, ‘shall’ is mandatory.” Oberneder v. Link Computer Corp., 696
A.2d 148, 150 (Pa. 1997).
Typically, Rule 311(d) is “invoked in appeals addressing the
admission or exclusion of evidence.” Commonwealth v.
Woodard, 136 A.3d 1003, 1005 (Pa. Super. 2016) (citation
omitted); see also Commonwealth v. Jones, 69 A.3d 180, 185
(Pa. 2013) (Commonwealth’s appeal of suppression order proper
where Commonwealth certifies in good faith that order
substantially handicaps prosecution). Additionally, appellate
courts have recognized the right of the Commonwealth to appeal
several types of non-evidentiary pre-trial orders under Rule 311.
See Woodard, supra; see also [Commonwealth v.] Jones,
826 A.2d [900,] 906 [(Pa. Super. 2003)] (“If the Commonwealth
has no opportunity to obtain appellate review of an adverse pre-trial interlocutory order implicating double jeopardy concerns,
such review will never occur because the Commonwealth cannot
try a defendant for a second time if the first prosecution results in
an acquittal.”); [Commonwealth v.] Buonopane, [599 A.2d
681 (Pa. Super. 1991)] (order precluding Commonwealth from
seeking death penalty appealable under Rule 311);
Commonwealth v. Johnson, 669 A.2d 315 (Pa. 1995) (order
transferring case from criminal to juvenile court appealable under
Rule 311).
Commonwealth v. Zieglar, 322 A.3d 256, 262-63 (Pa. Super. 2024)
(footnote and emphasis omitted).
Our Supreme Court has held that “failure to comply with the Dugger
certification renders the suppression order unappealable.” Malinowski, 671
A.2d at 678 (emphasis added). The Supreme Court explained:
While it is true that an appeal by the Commonwealth of a
suppression court ruling is appealable as a matter of right, it is so
only if the Commonwealth certifies that the ruling
terminates or substantially handicaps the prosecution. We
have not required the Commonwealth to prove that burden;
rather, we have held that it is the certification that precipitates
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and authorizes the appeal. Without the certification, the
Commonwealth has no right to appeal.
Id. (citations omitted, emphasis added). Thus, the Supreme Court made clear
that the Commonwealth shall include the Rule 311(d) certification in its notice
of appeal in order to perfect its right to appeal a suppression ruling. See
id.
Similarly, in Knoeppel, this Court determined that a subsequent
presentation of a Rule 311(d) certification does not cure a defective, but timely
filed, notice of appeal. See Knoeppel, 788 A.2d at 407. There, we stated:
In the present case, the Commonwealth failed to include the
requisite certification in its notice of appeal. Under Malinowski,
this defect is fatal; “[w]ithout certification, the Commonwealth
has no right to appeal.” Malinowski, 671 A.2d at 678. The
inclusion of the certification in the Criminal Docketing Statement
or in the Commonwealth’s appellate brief does not cure the defect.
Id.2
Additionally, in Commonwealth v. Chism, 216 A.3d 1133, 1137 (Pa.
Super. 2019), this Court addressed a procedural snafu similar to the instant
case. In Chism, the Commonwealth filed a timely notice of appeal from an
order granting suppression but failed to include the requisite Rule 311(d)
certification. See
id. at 1135. However, the Commonwealth filed a
subsequent untimely amended notice of appeal, which included a Rule 311(d)
certification. See
id. Nevertheless, this Court concluded that the original,
timely, notice of appeal was defective for failure to include the requisite
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2 We note that Dugger has been superseded by Rule 311(d).
See Pa.R.A.P.
311(d) cmt.; Commonwealth v. Dixon, 907 A.2d 468,471 n.8 (Pa. 2006).
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certification under Dugger and Malinowski. See Chism, 216 A.3d at 1136-
37. We addressed the untimely amended notice of appeal as follows:
Moreover, we cannot conclude that the subsequent inclusion of a
Rule 311(d) certification in the amended notice of appeal that the
Commonwealth filed with this Court cured the defect of the lack
of certification in the original notice of appeal. See Knoeppel,
788 A.2d at 407 (explaining that subsequent inclusion of the
certification does not cure the defect). Even if it could serve as a
cure to the defective original notice of appeal, the record does not
indicate that the Commonwealth ever filed the amended notice of
appeal with the trial court and[,] in any event, the Commonwealth
filed it with this Court on February 19, 2019, well after the 30-day
period.
…
In short, because the Commonwealth’s original notice of appeal
lacked Rule 311(d) certification, the notice of appeal was
defective, and the Commonwealth’s untimely amended notice of
appeal did not cure this defect.
Id. at 1137 (some citations omitted).3
Instantly, the procedural posture of this case is nearly identical to that
in Chism. Here, the Commonwealth filed a timely notice of appeal on June
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3 We observe that the Commonwealth, in its answer to the application to
quash, asserts that the holding in Chism urged it to seek nunc pro tunc relief
and to file the amended notice of appeal in the trial court first. See Answer
to Application to Quash, 8/2/25, at 5. We disagree with this characterization
of the holding in Chism. In our view, this Court, in Chism, noted that two of
the many issues with the amended notice of appeal were its untimeliness and
improper filing. See Chism, 216 A.3d at 1137. Further, this Court clearly did
not rule on whether an amended untimely notice of appeal, with nunc pro tunc
relief or not, could even cure the Rule 311(d) defect under Knoeppel. See
Chism,
216 A.3d at 1137 (this Court stating “Even if [the amended notice of
appeal] could serve as a cure to the defective original notice of appeal . . .”)
(emphasis added). It is clear that the Chism Court was merely highlighting
the numerous procedural pitfalls before it. Thus, any inference the
Commonwealth may have intuited from Chism is erroneous and misplaced.
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12, 2025, but failed to include the requisite Rule 311(d) certification. As such,
this original notice of appeal was defective and the Commonwealth had no
right to appeal. See Dugger, supra;
Malinowski, supra; see also
Pa.R.A.P. 311(d).
Nevertheless, we are cognizant that, here, the Commonwealth sought
nunc pro tunc relief, which the trial court granted, and the Commonwealth
filed a nunc pro tunc amended notice of appeal with the trial court that
purported to cure the Rule 311(d) defect in its original notice of appeal. In
particular, the Commonwealth sought nunc pro tunc relief to correct its
defective notice of appeal because the assistant district attorney was on
vacation and, as a result, failed to correct the defective filing prior to the
expiration of the 30-day appeal window, which resulted in a loss of the
Commonwealth’s right to appeal. See Answer to Application to Quash,
8/2/25, at 1 (explaining assistant district attorney was on vacation and could
not timely have corrected defective June 12, 2025 notice of appeal).
We conclude that the trial court’s grant of nunc pro tunc relief is a legal
nullity. Our appellate rules generally prohibit a trial court from taking action
after an appeal is taken. See Pa.R.A.P. 1701(a) (“[e]xcept as otherwise
prescribed by these rules, after an appeal is taken . . . the trial court . . . may
no longer proceed further in the matter”); see also id. at (b) (setting forth
exceptions). “[U]nder [our a]pellate [r]ules . . . a trial court has no jurisdiction
over a case until an appellate court returns the record to it with instructions
for the trial court to proceed. Otherwise . . ., the trial court risks following an
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appellate decision that may not ultimately be the final law of the case.”
Commonwealth v. Harris, 230 A.3d 1124, 1127 (Pa. Super. 2020). This
Court has also held that “Rule 1701 provides no exceptions that would have
permitted the trial court to enter a valid order granting leave to appeal nunc
pro tunc” after a party filed its first notice of appeal with this Court and before
the record was remanded to the trial court. Bell v. Kater,
839 A.2d 356, 358
(Pa. Super. 2003) (emphasis added). Thus, the trial court lacked the authority
to grant nunc pro tunc relief in this case and, therefore, the order granting the
Commonwealth nunc pro tunc relief to file an amended notice of appeal with
a corrective Rule 311(d) certification is a legal nullity. See Pa.R.A.P. 1701(a);
Bell, supra.4
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4 Furthermore, even if nunc pro tunc relief could be granted under these
circumstances, which it cannot, such relief is inappropriate based upon the
facts in this case. Generally, nunc pro tunc relief is reserved to “vindicate the
right to an appeal where that right has been lost due to certain extraordinary
circumstances.” Commonwealth v. Stock,
679 A.2d 760, 764 (Pa. 1996).
Instantly, there is nothing about these circumstances that is extraordinary and
we note that Rule 311(d) is not a new rule and does not impose any hardship
upon the Commonwealth. See
Malinowski, supra (Commonwealth not
required to prove termination or substantial handicap; mere certification
is sufficient). Additionally, there is nothing in the record before us that would
demonstrate a breakdown in the operation of the court such that nunc pro
tunc relief would be warranted. See Commonwealth v. Williams,
893 A.2d
147, 150 (Pa. Super. 2006) (trial court abused discretion in granting
Commonwealth nunc pro tunc relief to file notice of appeal where no
extraordinary circumstances or breakdown in court operations existed).
Therefore, even if the trial court could have granted nunc pro tunc relief, we
would conclude that the trial court abused its discretion in doing so. Under
either approach, the trial court’s order granting nunc pro tunc relief is a legal
nullity.
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Moreover, as set forth above, our case law mandates that the
Commonwealth cannot remedy a defective original notice of appeal, in the
case of a Rule 311(d) certification, with a subsequent filing. See Chism,
supra. Indeed, in line with our decisions in Knoeppel and Chism, the
Commonwealth cannot cure a Rule 311(d) defect with a subsequent filing.5
Therefore, the Commonwealth’s untimely amended notice of appeal does not
and cannot cure the Rule 311(d) defect. See
Knoeppel, supra;
Chism,
supra. Accordingly, we grant Ailey’s application to quash and quash this
appeal.6
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5 We are cognizant of our Supreme Court’s discussion in Young, on whether
appellate courts have authority to correct defective notices of appeal. See
Young 265 A.3d at 475-78. In particular, we note that our Supreme Court
explained, “we should clarify that, under [Pa.R.A.P.] 902, appellate courts
have discretion to remand a timely-filed notice of appeal to the lower court to
remedy a non-jurisdictional defect.” Id. at 475 (emphasis added). As
explained above, a Rule 311(d) defect is a jurisdictional defect which we
are without authority to remand for correction. See id. Therefore, we are
unable to remand a Commonwealth notice of appeal to cure a Rule 311(d)
defect. Thus, Young further leads us to the conclusion that Rule 311(d) may
not be corrected by subsequent filings, even if that filing is an amended notice
of appeal.
6 In reaching this conclusion, we emphasize that, at this time, we make no
determination on whether a timely notice of appeal with a Rule 311(d) defect,
followed by a timely filed amended notice of appeal purporting the cure the
Rule 311(d) defect, could still comport with the requirements of 311(d). Our
case law makes clear that the Commonwealth may not cure a Rule 311(d)
defect with subsequent filings. See
Knoeppel, supra;
Chism, supra. We
note that the subsequent filings in Knoeppel were not amended notices of
appeal and the subsequent filings in Chism were untimely filed outside of the
30-day appeal window set forth in Rule 903(a). However, that procedural
posture is not before this Court.
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Application to quash granted. Appeal quashed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/31/2025
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