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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
CAREY BILLUPS
Appellee No. 242 EDA 2016
Appeal from the Order Entered December 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0014851-2013
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 23, 2017
The Commonwealth appeals1 from the trial court’s December 31, 2015
order suppressing the alleged victim’s identification of Appellee, Carey
Billups. We reverse and remand.
Yvette Briggs alleges that, on August 14, 2014, at approximately
10:00 p.m., she was stopped at a traffic light at 41 st and Girard Street in
Philadelphia when Appellee reached through the partially open passenger
side window of her Chevrolet Uplander and stole her pocketbook from the
passenger seat. N.T. Motion, 3/13/15, at 6-8, 19. One of Mrs. Briggs’ credit
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth has certified, pursuant to Pa.R.A.P. 311(d), that the
trial court’s order will terminate the prosecution.
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cards was later used at a gas station at 39th and Girard. Id. at 9. Mrs.
Briggs stated the perpetrator looked directly into her face, and she had three
or four seconds to look at him. Id. at 11, 19. Mrs. Briggs pursued Appellee
but he escaped. Id. at 8, 11, 30. Mrs. Briggs then contacted police. Id. at
8.
At 3:45 a.m. on August 15, 2014, Lieutenant John Barker responded
to a report of three armed men standing near a white Infinity in the vicinity
of 39th and Girard. N.T. Motion, 12/31/15, at 5, 11. He observed three men
meeting the description in the radio report and called for backup. Id. at 6-
7. Police conducted pat down searches of all three men and recovered no
weapons. Id. at 7. Lieutenant Barker observed a fourth man near the
scene, and surmised correctly that he was the source of the radio report.
Id. at 7-8. Lieutenant Barker spoke to the fourth man, who turned out to be
Mrs. Briggs’ husband. Id. Mr. Briggs told Lieutenant Barker about the
robbery of Mrs. Briggs. Id. at 8. Lieutenant Barker told Mr. Briggs that Mrs.
Briggs would be needed to make an identification. Id. Mr. Briggs called
Mrs. Briggs, who arrived shortly thereafter. Id.
None of the three men were in handcuffs when Mrs. Briggs observed
them. Id. at 9. Mrs. Briggs identified Appellee, claiming she was 100%
sure he was the perpetrator. N.T. Motion, 3/31/15, at 14. Mrs. Briggs
stated that Appellee had changed shirts, but was wearing the same sneakers
and pants. Id. The record reveals, however, that Mrs. Briggs claimed the
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perpetrator was wearing cargo pants but Appellee was wearing sweatpants
when Mrs. Briggs identified him. Id. at 37. Mrs. Briggs also recognized
Appellee by his facial features and beard. Id. at 20. In her initial statement
to the police, Mrs. Briggs did not mention a beard. Id. at 23.
Appellee appeared for trial in Philadelphia Municipal Court on
December 2, 2013. He did not move to suppress any evidence prior to the
Municipal Court trial. The judge found Appellee guilty of theft by unlawful
taking.2 Appellee appealed for a trial de novo before the Philadelphia Court
of Common Pleas. After several defense continuances, the de novo trial was
scheduled to take place on March 31, 2015. On that date, however,
Appellee appeared and moved to suppress Mrs. Briggs’ identification
testimony. According to the Commonwealth’s Brief, the Commonwealth
objected to litigating a motion to suppress on the date scheduled for trial.
The transcript of the March 31, 2015 motion does not record the
Commonwealth’s objection or the trial court’s reasons for permitting
Appellee to litigate his suppression motion. After the March 31 and
December 31, 2015 hearings, the trial court granted Appellee’s motion.
December 31, 2015, was the trial judge’s last day on the bench. He
therefore did not file an opinion explaining his rationale. The December 31,
2015 transcript reflects the following:
____________________________________________
2
18 Pa.C.S.A. § 3921.
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Today I learned for the first time that the complainant
wasn’t called by the police. At 3:30 in the morning her husband
was out on the prowl looking for—and justifiably so. I’m not
saying there’s nothing [sic] wrong with that—but he was looking
for someone based on a vague description his wife gave him as
to who the person was because Lieutenant Barker testified that
when he want up to the man at the corner—
[…]
Lieutenant Barker testified when he saw the gentleman up
on the corner he thought he might have been the guy that called
in this ‘people with a gun.’ So he went up there and he
confirmed that was the guy that called it in so that tells me that
the husband intentionally called in an untrue police report to get
the police there—let me finish. And he said that he—that the
husband said he would call his wife and have her come down.
The police never called the complaining witness. The husband
called the complaining witness, which leaves me to believe why
would the complaining witness say the police called her. And
when the husband called her it’s more likely than not he
said, ‘Hey, the guy that robbed your purse is down here
and the police have him.’ It shines a light, not maybe
intentionally, but the complaining witness wasn’t being truthful
in how she got to the scene and what she was expecting when
she got there.
Based on that and her own testimony of the vagueness of
why she picked [Appellee] out and that she did expect [Appellee]
to be there and that it was her husband who called her and gave
her the information as to what to expect when she got there and
what was waiting there because the Lieutenant didn’t stay with
the husband when he called her, I find that her testimony was
skewed and it’s not believable from the point of view of making a
good identification and I grant the motion to suppress.
N.T. Motion, 12/31/15, at 45-48 (emphasis added).
The Commonwealth filed a timely appeal challenging the trial court’s
order. Before we address the merits, we consider the Commonwealth’s
argument that Appellee’s motion to suppress was procedurally improper. As
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the Commonwealth correctly notes, in most cases a defendant must file a
pretrial motion within 30 days of arraignment:
(A) Except as otherwise provided in these rules, the
omnibus pretrial motion for relief shall be filed and served within
30 days after arraignment, unless opportunity therefor did not
exist, or the defendant or defense attorney, or the attorney for
the Commonwealth, was not aware of the grounds for the
motion, or unless the time for filing has been extended by the
court for cause shown.
Pa.R.Crim.P.579(A). Rule 581(B) provides that a motion to suppress
evidence shall be part of the omnibus pretrial motion provided for in Rule
579. Pa.R.Crim.P. 581(B). Rule 581 also provides that an untimely motion
results in waiver. Id. The Commonwealth also cites Commonwealth v.
Harmon, 366 A.2d 895 (Pa. 1976) for the proposition that a defendant may
not file a suppression motion in between a Municipal Court trial and a de
novo trial in the Court of Common Pleas. In Harmon, the Supreme Court
considered whether the Pennsylvania Constitution entitles a defendant to
relitigate a suppression motion before a de novo trial in the court of
Common Pleas. Id. at 896. The Supreme Court concluded a defendant was
not entitled to relitigate a suppression motion before the Court of Common
Pleas. Id. at 899. Likewise, in Commonwealth v. Johnson, 146 A.3d
1271 (Pa. Super. 2016), appeal denied, 2016 WL5947287 (Pa. October 13,
2016), this Court wrote that “a defendant [can] not relitigate at the trial de
novo issues raised, or which could have been raised, at the Municipal Court
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suppression hearing.” Id. at 1274 (quoting Commonwealth v. Dobson,
405 A.2d 910, 914 (Pa. 1979)).
In this case, Harmon and Johnson do not answer the question before
us. Here, the question is whether the trial court appropriately permitted
Appellee to litigate a suppression motion filed after the Municipal Court trial.
Rule 579 does not foreclose the filing of a pretrial motion beyond the 30-day
time limit. Rather, the Rule permits an untimely motion where a prior
opportunity did not exist, where counsel was unaware of the grounds for the
motion, or where the trial court finds good cause. In this case, the certified
record does not reveal the basis for the trial court’s decision. The only
recorded reference to the motion’s timeliness came at the end of the
December 31, 2015 hearing:
Your Honor, I know that the Court ruled on procedural
objections, but just to preserve the record just in case this case
ends up in the Superior or the Supreme Court, for the record the
Commonwealth is objecting.
First of all, this motion should be denied without a hearing
because it was most importantly waived when it was not brought
in Municipal Court. As the Pennsylvania Rules of Criminal
Procedure clearly states [sic] that any pretrial motions,
specifically a motion to suppress that is not brought in Municipal
Court is waived on appeal. Second of all, this motion is moot
because it was not brought before—it was brought after the
complainant had already identified [Appellee] at trial when he
was convicted of all charges. Third, it was not filed in writing
and four, it was untimely. I know that Your Honor has already
denied the procedural objections, but I just had to put them on
the record.
N.T. Motion, 12/31/15, at 36-37.
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The Commonwealth cites no other portion of the record in support of
its procedural argument (Commonwealth’s Brief at 6), and we have found
none. As the appellant, the Commonwealth was responsible for ensuring
that this Court received a complete record for review. Commonwealth v.
Bongiorno, 905 A.2d 998 (Pa. Super. 2006) (en banc), appeal denied, 917
A.2d 844 (Pa. 2007). The Commonwealth claims it objected before the
March 31, 2015 hearing and the trial court permitted Appellee to litigate his
suppression motion. The basis for the trial court’s ruling was not transcribed
or otherwise made a part of the record. We therefore cannot determine
whether the trial court’s decision was appropriate, and we are constrained to
conclude the Commonwealth failed to preserve this issue for review.
We now turn to the merits. The following standard governs our
review:
When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
consider only the evidence from the defendant’s witnesses
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. The
suppression court’s findings of fact bind an appellate court if the
record supports those findings. The suppression court’s
conclusions of law, however, are not binding on an appellate
court, whose duty is to determine if the suppression court
properly applied the law to the facts.
Our standard of review is restricted to establishing whether
the record supports the suppression court’s factual findings;
however, we maintain de novo review over the suppression
court’s legal conclusions.
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Commonwealth v. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016)
(internal citations and quotation marks omitted), appeal denied, 2016 WL
6107660 (Pa. October 18, 2016).
The trial court’s rationale for granting Appellee’s suppression motion,
quoted above, contains a critical finding that the record does not support.
Specifically, the trial court surmised that Mr. Briggs told Mrs. Briggs that the
police had the guy who robbed her. N.T. Motion, 12/31/15, at 47. Thus, the
trial court reasoned that Mrs. Briggs arrived at the scene expecting to see
the perpetrator. For that reason, her identification of Appellee was tainted.
The trial court reasoned that Mr. Briggs call to Mrs. Briggs “shines a light,
not maybe intentionally, but the complaining witness wasn’t being truthful in
how she got to the scene and what she was expecting when she got there.”
Id. at 47-48. The trial court also found that Mrs. Briggs’ testimony was
“skewed.” Id. at 48.
Mr. Briggs did not testify at the suppression hearing, and there is
nothing in the record to support the trial court’s finding of what Mr. Briggs
said to Mrs. Briggs. The record contains no evidence of the substance of
their conversation. We recognize that the trial court characterized Mrs.
Briggs’ testimony as vague. Id. at 48. Nonetheless, the trial court’s
unsupported finding clearly played a significant role in the court’s rejection
of Mrs. Briggs’ credibility and its decision to suppress her identification of
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Appellee. Under these circumstances, we reverse the trial court’s order and
remand for further proceedings.
Order reversed. Case remanded. Jurisdiction relinquished.
Judge Platt joins this memorandum.
Judge Shogan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2017
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