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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DARNELL CARTER, :
:
Appellant : No. 999 WDA 2015
Appeal from the Judgment of Sentence May 15, 2015
In the Court of Common Pleas of Warren County
Criminal Division No(s).: CP-62-CR-0000245-2014
BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 16, 2016
Appellant, Darnell Carter, appeals from the judgment of sentence
entered in the Court of Common Pleas of Warren County following his jury
trial conviction for Possession of a Controlled Substance1 and three summary
traffic offenses.2 Upon careful review, we affirm.
A brief factual background is as follows: On July 5, 2015, Police
stopped Appellant at a DUI checkpoint and observed a small baggie that
contained a white powdery substance inside the car. N.T. Trial, 4/7/15, at
36, 38, 46-47, 50. Police obtained a search warrant for the car, and
discovered two additional baggies containing a white powdery substance.
N.T. Trial, 4/7/15, at 53-55. Police subsequently arrested Appellant, and the
1
35 P.S. § 780-113(a)(16).
2
75 Pa.C.S § 1543(a); 75 Pa.C.S. § 1301(a); 75 Pa.C.S. § 4703(a).
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case went to trial, after which the jury found the Appellant guilty. The trial
court sentenced the Appellant to one year of probation.
Appellant filed a timely notice of appeal and a timely Concise
Statement of the Matters Complained of on Appeal pursuant to Pa.R.A.P
1925(b). The trial court filed a Memorandum Opinion pursuant to Pa.R.A.P.
1925(a).
Appellant’s sole statement of the question presented is: “Did the trial
court abuse its discretion by denying the oral motion filed by defense
counsel to dismiss the complaint based on the Commonwealth’s failure to
submit the constitutional requirements under Tarbert/Blouse?”3
Appellant’s Brief at 4. In order to address this issue, we must first
determine the type of motion in question.
During trial, and after the Commonwealth’s case-in-chief, Appellant
made the following motion to the court: “I submit that the DUI checkpoint
was an unlawful checkpoint.” N.T. Trial, 4/7/15, at 113. However,
Appellant did not specify what he was asking the court to do. After brief
argument from each party, the trial court stated, “I am overruling that
objection with respect to the checkpoint.” Id. at 115.
At trial, Appellant contested the DUI checkpoint in terms of being
illegal. Id. at 113. In various filings, Appellant claimed that this objection
3
Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987);
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992) (establishing
constitutional guidelines for DUI checkpoints).
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was both a Motion to Dismiss the Complaint4 and a Motion for Judgment of
Acquittal.5 However, in its 1925(a) Opinion, the trial court classified the oral
motion as a Motion to Suppress, and this Court concurs. See Trial Court
Opinion, dated 6/26/15.
Appellant’s objection that the DUI checkpoint was “unlawful” was in
essence a request to suppress the evidence obtained from the search of the
car and this Court will treat it as such. See Commonwealth v. Garibay,
106 A.3d 136, 140 (Pa.Super. 2014), appeal denied, 123 A.3d 1060 (Pa.
2015) (concluding that where police do not comply with the guidelines in
establishing a checkpoint, the trial court should suppress evidence derived
from the stop).
Appellant, however, waived his right to file or argue a Motion to
Suppress. Pennsylvania Rule of Criminal Procedure 581 required Appellant
to file a Motion to Suppress in a timely Omnibus Pretrial Motion within 30
days of arraignment or the issues were waived: “[i]f timely motion is not
made hereunder, the issue of suppression of such evidence shall be
deemed to be waived.” Pa.R.Crim.P. 581(B) (emphasis added). The
Pennsylvania Supreme Court reiterates, “[t]his Court has consistently
affirmed the principle that [Appellant] waives the ground of suppressibility
4
Apellant’s Brief at 4.
5
Statement of Matters Complained of on Appeal at 1; Appellant’s Brief at 5,
8-9.
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as a basis for opposition to the Commonwealth's introduction of evidence
when he or she fails to file a suppression motion pursuant to our rules of
criminal procedure.” Commonwealth v. Baumhammers, 960 A.2d 59,
76-77 (Pa. 2008).
However, the Pennsylvania Rules of Criminal Procedure provide four
exceptions to the Omnibus Pretrial Motion filing deadline. Rule 579 allows
exceptions where: 1) opportunity therefore did not exist; 2) the defendant
or defense attorney, or the attorney for the Commonwealth was not aware
of the grounds for the motion; or 3) the time for filing has been extended
by the court for cause shown. Pa.R.Crim.P. 579(A). Rule 581 provides a
fourth exception: “where the interests of justice otherwise require.”
Pa.R.Crim.P. 581(B). Therefore, the trial court may permit a Defendant to
file an untimely Motion to Suppress if the trial court decides that one of the
four exceptions exists.
In the instant case, the trial court found that the oral motion was a
Motion to Suppress (even though the Appellant tried to categorize it
differently), found that the Motion to Suppress was untimely, found that no
timeliness exceptions applied, and therefore found any suppression issues to
be waived. The trial court made the following well-reasoned findings as to
why no exceptions applied:
[Appellant] did not file any pretrial motion, did not offer any
objection, or otherwise put the [Appellee] on notice that
[Appellant] planned to challenge the constitutionality of the DUI
checkpoint until after the close of the [Appellee]’s case-in-chief.
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It is inappropriate and contrary to the Pennsylvania Rules of
Criminal Procedure to allow a[n] [Appellant] to sandbag the
[Appellee] and offer a suppression motion based solely on the
[Appellee]’s case-in-chief. [Appellant]’s position is untenable
because it would require the [Appellee] to show that it
constitutionally obtained evidence before presenting every piece
of evidence at trial. [Appellant] offered no possible
circumstances that would permit the Court to entertain such an
untimely oral motion to suppress…Counsel was armed with the
case law regarding DUI checkpoints and began to argue the
specific criteria before the Court dismissed the motion as
untimely. This would certainly indicate that [Appellant] was
aware pretrial of the grounds for challenging the constitutionality
of the DUI checkpoint and chose to intentionally violate the
Rules of Criminal Procedure out of a misguided and improper
trial strategy.
Trial Court Opinion, dated 7/26/15, at 2-3.
We agree with the trial court.
Appellant failed to file a Motion to Suppress prior to trial despite
having knowledge that the charges involved evidence obtained from a DUI
checkpoint stop. Application for Search Warrant, dated July 11, 2014.
Appellant did not petition the court for any additional time to file the Motion
to Suppress, did not object to any evidence coming in during trial, and did
not offer any reason why Appellant was unable to file a timely motion to
suppress as required by Rule 579(A) and 581(B). Trial Court Opinion, dated
7/26/15, at 2-3; Pa.R.Crim.P. 579(A); Pa.R.Crim.P. 581(B). Finally, the trial
court made a reasonable finding that it was against the interests of justice
to allow an untimely motion to suppress and “sandbag” the Appellant. Trial
Court Opinion, dated 7/26/15, at 2-3.
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Since no exception applies, Rule 581(B) dictates: “the issue of
suppression of such evidence shall be deemed to be waived.”
Pa.R.Crim.P. 581(B) (emphasis added).
For the reasons stated above, the trial court did not abuse its
discretion when it denied the oral motion to suppress as untimely and the
suppression of any evidence that is the subject of that motion is deemed to
be waived.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/2016
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