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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
KALVIN WILLIAMS, : No. 362 EDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, January 12, 2015,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0004791-2014
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED FEBRUARY 03, 2016
Kalvin Williams appeals the January 12, 2015 judgment of sentence
resulting from his convictions for DUI: controlled substance or metabolite
first offense.1 We affirm.
The trial court provided the following facts and procedural history:
This case was originally tried in Philadelphia
Municipal Court. Prior to the municipal court trial,
Appellant moved to Suppress Physical Evidence. At
the suppression hearing, Appellant argued that he
was stopped, seized, and searched without
reasonable suspicion or probable cause and as a
result of that, anything that he said, any physical
evidence, any observations of him, should be
suppressed as fruit of the poisonous tree. Appellant
sought to preclude the admission of the officer’s
observations of his physical appearance and smell
emitting from his vehicle, as well as the results of
the seizure analysis and blood tests that were taken.
1
75 Pa.C.S.A. § 3802(d)(1).
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The evidence presented at the Suppression
Hearing established that on July 29, 2011 a DUI
checkpoint was set up at 401 E. Allegheny Avenue
because statistics gathered and used by the police
department showed that from 2007 to 2009 this
location was number one in the City of Philadelphia
for DUI incidents. In response to the vast number of
DUI incidents, on July 29, 2011, neon signs
measuring approximately six feet by eight feet were
erected on Allegheny Avenue, alerting civilians of the
upcoming checkpoint. If a driver wanted to avoid
the checkpoint, they had the option to turn North on
Third Street or North on Fifth Street without
repercussion.
At approximately 11:00 p.m., Police Officer
John Zirilli and his partner, Officer Jeffrey Hannan,
while working the checkpoint, observed Appellant
drive his maroon 1999 Nissan Ultima [sic] up to the
checkpoint and stop when told to stop. Officer Zirilli,
who was posted on the driver’s side of the vehicle,
had a brief conversation with Appellant. Officer Zirilli
noticed that the Appellant had blood shot eyes,
smelled of marijuana (like burnt marijuana on his
clothing), and saw what he thought was a burnt
blunt in the ashtray. Officer Zirilli testified that [he]
knew Appellant was under the influence of marijuana
because when he was asked to step out of his
vehicle, Officer Zirilli observed Appellant to have a
sway (unsteady balance) to his walk. Officer Zirilli
had made approximately several hundred DUI
arrests in the past and was familiar with the smell of
marijuana. He is SFST certified and A-ROD,
recognition of drugs and alcohol certifi[ed].
Police Officer Jeffrey Hannan testified that he
was on the passenger side of the vehicles stopped at
the checkpoint. Officer Zirilli signaled to him that he
was taking Appellant out of his vehicle for a field
sobriety test so Officer Hannan moved around to the
driver’s side of the vehicle to park the vehicle.
Officer Hannan smelled marijuana in the vehicle as
he was parking it. Once he parked the vehicle, he
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went over to where Appellant was and administered
three tests: (1) a “walk and turn” test which
Appellant failed, (2) a “one-leg stand” test which
Appellant failed, and (3) a “horizontal gage and
stagger” test which he also failed.
In summary, the Suppression Court found []
the testimony of the police officers credible. In light
of the testimony presented, the DUI checkpoint
complied with the necessary procedural
requirements to render it constitutional. Moreover,
there was reasonable suspicion to conduct a field
sobriety test when the officer smelled burnt
marijuana and observed Appellant’s bloodshot eyes.
The Suppression Court denied the Motion to
Suppress. Thereafter, on December 20, 2013,
Appellant proceeded to trial before the Honorable
James DeLeon and was found guilty of DUI. On
April 24, 2014, Appellant was sentenced to a term of
72 hours to six (6) months of incarceration and a
consecutive six month term of probation. Appellant
filed an appeal in the Court of Common Pleas
seeking a trial de novo . . . .
Trial court opinion, amended 6/10/15 at 2-4.
A waiver trial was conducted before this court
on November 11, 2014. At the conclusion of trial,
the Defendant was found guilty of DUI: Controlled
Substance or Metabolite 1st Offense. He was found
not guilty of DUI: Controlled Substance Impaired
Ability - 1st Offense. Prior to sentencing, a Court
Reporting Network (CRN) Evaluation was ordered.
On January 12, 2015, the Defendant was
sentenced to a mandatory 72 hours followed by a
concurrent term of six (6) months of probation. The
Defendant filed a Notice of Appeal that same day.
Post-sentence motions were not filed. On
February 18, 201[5], after receiving the notes of
testimony, a Statement of Matters Complained of on
Appeal pursuant to Pa.R.A.P. 1925(b) was ordered
by this court. A Statement of Errors Complained of
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on Appeal was filed on March 11, 2015. Counsel also
filed a request for an extension of time to
supplement the statement due to missing notes of
testimony.
On March 30, 2015, this court granted
counsel’s request and a second Statement of Matters
Complained of on Appeal pursuant to Pa.R.A.P.
Rule 1925(b) was ordered. A Supplemental
Statement of Errors Complained of on Appeal was
filed on behalf of the Defendant on April 13, 2015.
Id. at 1-2.
Appellant raises the following issue for our review:
Should not the evidence against appellant have been
suppressed where appellant was illegally stopped at
a DUI checkpoint that did not comply with
constitutional standards because neither the specific
location nor the time selected for the checkpoint was
supported by any data on DUI related arrests or
accidents at that location, and the location was not
chosen because it was likely to be traveled by
intoxicated drivers?
Appellant’s brief at 3.
Appellant’s sole issue for our review addresses the validity of the DUI
checkpoint established by the Philadelphia Police, and whether any evidence
gathered as a result of that checkpoint should be suppressed. The
Commonwealth avers that the issue is waived because appellant failed to
litigate the issue before the trial court. (See Commonwealth’s brief at 6-7.)
We agree with the Commonwealth and find that appellant has waived the
issue for appeal.
The Pennsylvania Rules of Appellate Procedure state the following:
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(a) General rule. Issues not raised in the lower
court are waived and cannot be raised for the
first time on appeal.
Pa.R.A.P. 302(a). The Rules also require an appellant to state in his or her
statement of the case, “[t]he state of the proceedings in the court of first
instance . . . at which, and in the manner at which, the questions sought to
be reviewed were raised.” Pa.R.A.P. 2117(c)(1). See also
Pa.R.A.P. 2119(e) (requiring the same be included in the argument section
of an appellant’s brief either directly or by cross-reference to the statement
of the case). This court has held that failure to comply with these rules will
result in the waiver of an appellant’s issue. Commonwealth v. Williams,
980 A.2d 667, 671 (Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa.
2010).
Here, much like the defendant in Williams, appellant has failed to
include in his statement of the case a citation to the record indicating where
his issue was first raised in the trial court below. Appellant only refers to the
fact that a motion to suppress was heard before the Honorable
Joyce Eubanks of the Philadelphia Municipal Court. (Appellant’s brief at 4.)
Moreover, appellant did not raise the validity of the DUI checkpoint as an
issue during the suppression hearing. A review of the suppression hearing
transcript indicates that appellant’s motion to suppress evidence was limited
to whether, “pursuant to the Pennsylvania Constitution, [appellant] was
stopped and seized and searched without reasonable suspicion or probable
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cause.” (Notes of testimony, 5/7/13 at 4.) A review of the trial transcript
also indicates that appellant failed to question the validity of the DUI
checkpoint at trial.
Therefore, we find that appellant’s issue for appeal is waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/3/2016
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