JEFFREY MILLER & another vs. DARRYL FICKETT & others

ALPHONSO COWELL VS. COMMONWEALTH

432 Mass. 1028

November 28, 2000

Esther M. Bixler, Assistant District Attorney, for the Commonwealth.

Alphonso Cowell purports to appeal from an order of a single justice of this court denying his application for leave to appeal from certain rulings by judges in the Superior Court concerning a motion to suppress. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996) [Note 1]. The Commonwealth has filed a motion to dismiss.

This case is not properly before us. Neither the Commonwealth nor a defendant may appeal to the full court from a single justice's denial of an application for leave to pursue an interlocutory appeal. The same considerations that make an appeal by the Commonwealth improper also render an appeal by a defendant improper. See Commonwealth v. Rivera, 424 Mass. 1007 , 1008 (1997), and cases cited.

We express no view on the merits of the rulings by the Superior Court judges, or on Cowell's claim that he was denied an opportunity before trial to seek leave to pursue an interlocutory appeal. Cowell may pursue those points in a direct appeal from any convictions. We hold only that the limited matter before us - his purported appeal from the single justice's denial of leave to appeal - is not properly here [Note 2].

Appeal dismissed.

FOOTNOTES

[Note 1] While this matter has been pending, Cowell sought from the single justice a stay of further proceedings in the Superior Court. The single justice denied the motion.

[Note 2] We also decline to grant relief from the single justice's decision pursuant to G. L. c. 211, s. 3.