J-S28039-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EARL JOHNSON,
Appellant No. 2001 EDA 2015
Appeal from the Judgment of Sentence November 10, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0009452-2011
BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 24, 2016
Appellant, Earl Johnson, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas (CCP) following
his conviction, after a trial de novo, of possession of a small amount of
marijuana.1 On appeal, Appellant challenges the denial of his motion to
suppress evidence by the Municipal Court of Philadelphia (Municipal Court).
After careful review, we conclude that Appellant has waived his issue and
affirm the judgment of sentence.
We take the following relevant facts and procedural history from the
CCP’s June 24, 2015 opinion and our independent review of the certified
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. § 780-113(a)(31).
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record. On September 3, 2009, at approximately 11:15 a.m., Philadelphia
Police Officer Michael Haas and his partner, Officer Sliner,2 were directed
over police radio to respond to an incident at an apartment building. Upon
arrival at the scene, while waiting for an elevator in the lobby, the officers
encountered Appellant, whom Officer Haas recognized from a previous
arrest. Without provocation, Appellant began yelling and cursing at the
officers. In response, Officer Haas asked Appellant if he lived in the building
and requested that he produce identification. Appellant removed a large
bundle of mail from his pants pocket; the bundle included one small bag of
marijuana. The officers arrested him for the marijuana possession.
On July 28, 2011, Appellant was tried in the Municipal Court.3 Prior to
trial, Appellant submitted a motion to suppress evidence, which the
Municipal Court denied.4 The Municipal Court convicted Appellant of
possession of a small amount of marijuana, and sentenced him to thirty
days’ probation.
____________________________________________
2
Officer Sliner’s first name is not apparent from the record.
3
The record of the proceedings that took place in the Municipal Court is not
included in the certified record transmitted to this Court on appeal.
4
Philadelphia Court Criminal Division Rule 630 governs pre-trial applications
to suppress evidence in municipal court cases. See Phila. Co. Crim. Div.
Rule 630. Section D of the Rule provides that in such cases, pre-trial
applications to suppress shall be heard on the same day set for trial, and the
judge hearing the application “will hear the same as a Common Pleas Court
Judge.” Id. at (D).
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On August 17, 2011, Appellant filed a de novo appeal to the CCP. At
the conclusion of Appellant’s November 10, 2014 de novo bench trial, the
court found him guilty of the above-stated offense. It sentenced him to time
served. Appellant did not file any post-trial or post-sentence motions. On
November 20, 2014, he filed the instant, timely appeal.5
Appellant raises one question for our review: “Did not the [Municipal]
[C]ourt err in failing to suppress the physical evidence where [A]ppellant
was subjected to an investigative detention that was not supported by
reasonable suspicion?” (Appellant’s Brief, at 3).
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and
may reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the suppression
court turns on allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate court, whose
duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
____________________________________________
5
Pursuant to the CCP’s order, Appellant filed a timely concise statement of
errors complained of on appeal on June 4, 2015. See Pa.R.A.P. 1925(b).
The court entered an opinion on June 24, 2015, in which it stated its
determination that Appellant’s issue on appeal is waived. See Pa.R.A.P.
1925(a); (see also Trial Court Opinion, 6/24/15, at 6).
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Commonwealth v. Best, 120 A.3d 329, 346 (Pa. Super. 2015) (citations
omitted).
Before we may address the merits of Appellant’s claim, we must
determine whether he has properly preserved it for appellate review. For
the following reasons, we agree with the CCP that he has not. (See Trial Ct.
Op., at 3, 6).
An appellant convicted in Philadelphia’s Municipal Court
has two appellate options.
Pennsylvania Rule of Criminal Procedure
1006(1)(a) provides that a defendant convicted in
Philadelphia Municipal Court has the right to request
either a trial de novo or file a petition for a writ of
certiorari with the Philadelphia Court of Common
Pleas. This Court has held that when a defendant
files a petition for a writ of certiorari, the Philadelphia
Court of Common Pleas sits as an appellate court.
Commonwealth v. Coleman, 19 A.3d 1111, 1118–19 (Pa.
Super. 2011) (citations omitted). “A trial de novo gives the
defendant a new trial without reference to the Municipal
Court record; a petition for writ of certiorari asks the Common
Pleas Court to review the record made in the Municipal Court.”
Commonwealth v. Menezes, 871 A.2d 204, 207 n.2 (Pa.
Super. 2005). These options are mutually exclusive.
Pa.R.Crim.P. 1008(A) (“The notice [of appeal from a Municipal
Court ruling] shall state which method of review is being sought
in the court of common pleas by indicating whether it is a notice
of appeal or notice of a petition for a writ of certiorari.”).
Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015)
(emphasis added).
“A trial de novo is generally limited to a relitigation of guilt or
innocence only,” and a defendant is not entitled to relitigate pre-trial
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motions. Commonwealth v. Douglass, 701 A.2d 1376, 1379 (Pa. Super.
1997) (citation omitted). Therefore, “a defendant [can] not relitigate at the
trial de novo issues raised, or which could have been raised, at the Municipal
Court suppression hearing.” Commonwealth v. Dobson, 405 A.2d 910,
914 (Pa. 1979).
This bar on relitigation of pre-trial suppression motions at trials de
novo is codified in Philadelphia Court Criminal Division Rule 630(G), which
provides:
Unless specially allowed in accordance with subsection (d) of this
Rule, the trial de novo shall not include relitigation of the
application to suppress. A defendant may seek a review of the
record of the suppression hearing heard on the day set for
Municipal Court trial as part of a Writ of Certiorari.
Phila. Co. Crim. Div. Rule 630(G).
Here, instead of petitioning for a writ of certiorari following his
Municipal Court conviction, which would have permitted CCP review of the
suppression motion, Appellant pursued a trial de novo, thereby precluding
relitigation of the suppression issue at trial. See id.; see also Dobson,
supra at 914; Douglass, supra at 1379. However, as the CCP explained,
Appellant was not deprived entirely of a means of trial court review of his
suppression motion by seeking a trial de novo. (See Trial Ct. Op., at 5-6).
Specifically, Philadelphia Court Criminal Division Rule 630(H) provides a
mechanism for such review after the trial de novo. The rule states:
In the event a defendant is convicted after appeal and trial de
novo in the Common Pleas Court, a defendant may raise in an
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application for a Motion for a New Trial the admissibility of the
evidence introduced at trial. If the evidence so challenged
was the subject of an application to suppress heard prior
to Municipal Court trial, the Court shall review the
transcript and decision of the suppression hearing as part
of the Common Pleas Court record.
Phila. Co. Crim. Div. Rule 630(H) (emphasis added).
Therefore, in the instant case, following his trial de novo and
conviction in the CCP, Appellant could have sought the CCP’s review of the
Municipal Court’s suppression ruling by filing a motion for a new trial. See
id. However, because Appellant did not file a motion for a new trial, the CCP
never “review[ed] the transcript and decision of the suppression hearing as
part of the Common Pleas Court record.” Id. Thus, there is no record on
the suppression issue in the CCP for this Court to review.
Based on the foregoing, in light of Appellant’s failure to adhere to
procedural rules regarding pre-trial suppression motions and the consequent
absence of a record and determination on the suppression issue in the CCP,
we conclude that Appellant has failed to preserve his suppression claim for
appellate review. Accordingly, because Appellant waived his sole issue on
appeal, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judge Lazarus joins the Memorandum.
Judge Bowes files a Concurring Memorandum in which Judge Lazarus
joins.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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Com. v. Johnson, E.
Combined Opinion