J-A14033-17
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
STEWART ENOS
No. 1131 EDA 2016
Appeal from the Order March 22, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0008798-2014
BEFORE: BENDER, P.J.E., BOWES, J., AND SHOGAN, J.
CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:
FILED DECEMBER 08, 2017
I agree with Judge Bender’s concurring memorandum that the Majority’s
disposition of the Commonwealth’s second issue renders its analysis of the
first issue obiter dictum. I also write to voice my disagreement with the
Majority’s determination of the second issue that the trial court abused its
discretion in ruling on the merits of Stewart Enos’s untimely motion to
suppress. I believe that the trial court was within its discretion to determine
that this issue implicated the interests of justice, such that it could assess the
merits of Enos’s belated motion to suppress. Although I believe it was within
the court’s purview to entertain the belated motion, I disagree with the
learned trial judge’s decision to suppress.
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This matter centers upon a controlled drug buy conducted on July 7,
2014, in Pottstown, Montgomery County. At that time, the lead investigator,
Sergeant Michael Markovich of the Pottstown Police Department, solicited the
aid of a confidential informant (“CI”), in order to make contact with, and
purchase narcotics from, a suspected drug dealer in the area. After ensuring
that the CI was not in possession of drugs, money, or drug paraphernalia,
Sergeant Markovich provided him with twenty dollars in prerecorded money,
and outfitted the CI with a covert video-recording device. That device did not
record sound, and it did not transmit an audio/video feed. The CI contacted
the suspect, whom he knew as “Stew,” and established a time and place to
transact the drug sale.
The CI proceeded to the agreed upon location on foot. Sergeant
Markovich followed the CI in his police vehicle from a short distance. When
the CI arrived at the meeting point, a white Toyota pick-up truck with tinted
windows stopped nearby. The CI entered the truck, which proceeded
approximately one-half block eastward, at which point it stopped and the CI
exited. The concealed video device recorded the interior of the vehicle during
this short trip, and captured Enos providing the CI with crack cocaine in
exchange for the prerecorded money.
Enos was subsequently arrested and charged with possession with intent
to deliver a controlled substance, possession of a controlled substance, and
possession of drug paraphernalia. On March 21, 2016, Enos filed a pre-trial
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motion that sought the disclosure of the identity of the confidential informant.
He also filed a pre-trial motion in limine, in which he claimed that the video
recording of the alleged drug transaction was unreliable and could not be
authenticated without the testimony of the confidential informant. After a
hearing on the matter, the trial court denied both motions. Immediately
thereafter, the trial court conducted voir dire, and the jury was empaneled.
On March 22, 2016, the day trial was scheduled to commence, Enos filed
an untimely motion to suppress the videotaped evidence. Defense counsel
premised the motion on this Court’s ruling in Commonwealth v. Dunnavant,
63 A.3d 1252 (Pa.Super. 2013), aff’d by an equally divided court, 107 A.3d
29 (Pa. 2014), that the concealed recording of the interior of a suspect’s home
during a controlled drug transaction violated that suspect’s constitutional
rights, and thus, warranted suppression of the video recording. The trial court
found that, pursuant to Pa.R.Crim.P. 581(B), the opportunity to present the
suppression issue clearly existed prior to trial since the Dunnavant decision
had been filed in 2013.1 Nevertheless, the court found that it was in the
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1 The Crimes Code governs motions to suppress evidence, and reads, in
pertinent part:
(B) Unless the opportunity did not previously exist, or the
interests of justice otherwise require, such motion shall be
made only after a case has been returned to court and shall
be contained in the omnibus pretrial motion set forth in Rule
578. If timely motion is not made hereunder, the issue of
suppression of such evidence shall be deemed waived.
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interests of justice to ignore defense counsel’s procedural miscue, and held a
hearing on Enos’s suppression motion.
Following the hearing, the trial court granted Enos’s motion to suppress
and, sua sponte, declared a mistrial based on manifest necessity. The
Commonwealth filed a timely notice of appeal and certified that the trial court’s
ruling terminated or substantially handicapped the prosecution. The
Commonwealth complied with the trial court’s order to file a Rule 1925(b)
concise statement of errors complained of on appeal, and the trial court
authored its Rule 1925(a) opinion. This matter is now ready for our review.
The Commonwealth presents two questions for our review:
I. Did the trial court err when it extended Commonwealth v.
Dunnavant, [supra], to suppress a video of a drug
transaction in [Mr. Enos’s] car, where he had a diminished
expectation of privacy?
II. Did the trial court abuse its discretion when it heard [Mr.
Enos’s] untimely suppression motion after swearing the jury
when defense counsel admitted that the grounds for that
motion previously existed and the interests of justice did not
require it?
Commonwealth’s brief at 4.
At the outset, I note that, although the Majority fully considered the
merits of the Commonwealth’s first issue, its disposition as to the second issue
renders this discussion merely dicta. The second procedural issue should have
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Pa.R.Crim.P. 581(B).
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been addressed first in order to determine whether the first issue was properly
before this Court.
Turning to the Majority’s handling of the Commonwealth’s second issue,
it found that the trial court abused its discretion when it ruled on Enos’s
untimely motion to suppress. In this vein, the Majority observed that the trial
court considered Enos’s motion in the “interests of justice,” Pa.R.Crim.P.
581(B), because it recognized the novelty of his argument, and that failing to
hear it would almost certainly result in a meritorious PCRA claim contesting
defense counsel’s stewardship.
The Majority determined that the trial court erred in utilizing this
reasoning. First, it noted that, pursuant to Pa.R.Crim.P. 579, a motion to
suppress must be filed as part of an omnibus pretrial motion within thirty days
of arraignment, unless the opportunity to do so did not exist, the defendant
or defense counsel was unaware of the grounds for the motion, or the time of
filing was extended by the court for good cause shown. The Majority
concluded that none of those exceptions was applicable herein, and
highlighted that Enos filed a pretrial motion in limine, as detailed above, which
dealt with the exact same video evidence, yet he did not move to suppress it
at that time. As Pa.R.Crim.P. 579 delineates the exceptions to the timeliness
of a pre-trial omnibus motion, I find the Majority’s analysis in this regard
misses the mark since it is undisputed that Enos did not file his motion prior
to the commencement of trial. Rather, Pa.R.Crim.P. 581(B), which the trial
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court expressly relied upon, provides the means by which a trial court may
consider an untimely motion to suppress which was not included in a pre-trial
omnibus motion, and hence, our analysis should concentrate on that Rule
alone.
The Majority sets forth the appropriate standard of review regarding
untimely motions to suppress under Pa.R.Crim.P 581(B), which reads, in
relevant part, as follows:
A defendant may file supplemental motions to suppress, but only
“unless the opportunity did not previously exist, or the interests
of justice otherwise require.” Pa.R.Crim.P. 581(B);
Commonwealth v. Micklos, 448 Pa.Super. 560, 672 A.2d 796,
802 (1996). “The ‘interest of justice’ exception provides a trial
judge with discretion to excuse a party’s tardy presentation of a
suppression motion.” Id. We review the court’s decision on these
matters for an abuse of discretion. Id. An abuse of discretion is
not a mere error of judgment. Rather, it exists where the judge
acts manifestly unreasonably, misapplies the law, or acts with
partiality, bias, or ill will. Id. at 803.
Majority Memorandum at 18 (citing Commonwealth v. Johonoson, 844
A.2d 556, 560-561 (Pa.Super. 2004) (footnote omitted)).
Essentially, the Commonwealth argues that the trial court abused its
discretion by misapplying the law enunciated in Dunnavant, supra, which
did not squarely apply to the clandestine recordings of a drug transaction
occurring within a vehicle. Further, it contends that by basing its
determination on a potentially meritorious PCRA claim in a subsequent
proceeding, the trial court deprived the Commonwealth of an opportunity to
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fully litigate that issue in the proper setting, and under the proper
jurisprudential backdrop.
The Majority found this reasoning persuasive, and, in addition, noted
that defense counsel’s errors were especially egregious since jeopardy had
attached to the proceedings, and he could provide no justification for why he
had not brought this issue before the court prior to trial, other than his own
negligence. In my view, respectfully, the Majority should have ended its
analysis here and ordered reversal on that basis. Nevertheless, it proceeded
to address the merits of the decision to suppress and concluded that the trial
court abused its discretion in suppressing the video evidence obtained by the
Commonwealth.
I would not find that the trial court abused its discretion in considering
Enos’s untimely motion to suppress. Rule 581(B) sets forth two exceptions
when a trial court may consider such an untimely motion: when the
opportunity did not previously exist, or when the interests of justice otherwise
require. Pa.R.Crim.P. 581(B). As outlined above, the “interests of justice”
exception provides the trial judge with discretion to hear such untimely
motions. Johonoson, supra. When considering that Enos’s untimely
motion to suppress falls squarely within the auspices of Rule 581(B), and the
trial court expressly resolved its decision on the interests of justice, I would
limit my analysis to those facts and considerations relevant to that
determination. Hence, the Majority’s reliance on defense counsel’s admitted
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missteps, which are germane to the first exception under Rule 581(B), seems
particularly out-of-place when evaluating whether the court abused its
discretion in considering the untimely motion in the “interests of justice.”
I acknowledge that this Court has previously held that the trial court
should exercise its discretion to hear an untimely suppression motion “where
the merits of counsel’s [motion] were so apparent that justice required it be
heard.” Commonwealth v. Long, 753 A.2d 272, 280 (Pa.Super. 2000)
(citing Commonwealth v. Hubbard, 372 A.2d 687, 693 (Pa. 1977)).
Nevertheless, I would not limit this principle as narrowly as the
Commonwealth advocates, that is, only to situations where the law “clearly
supported the defendant’s motion[.]” Commonwealth’s brief at 26.
In my mind, if we permit the trial court to consider an untimely motion
to suppress only where the law “clearly supports” that decision, then we leave
no room for the court to exercise its discretion. Such an outcome-
determinative analysis transmutes the exercise of discretion into a mere
administration of mandated law. This reading alters our analysis from one of
“apparent merit” to one of “actual merit.” Further, doing so limits the reach
of zealous advocacy, and stifles, as was the case here, robust discussion of an
otherwise significant constitutional question.
Here, Enos presented a motion to suppress seeking to extend
Dunnavant’s holding to the interior of an individual’s personal vehicle. He
presented a reasonable position with arguable merit. After considering the
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facial rationality of that motion, the trial court determined that justice would
be best served by permitting a hearing on the topic.2 The trial court further
supported this decision by noting that defense counsel’s failings likely
constituted a meritorious claim for ineffective assistance of counsel during
collateral review. Therefore, it concluded that it would be a waste of judicial
resources to withhold argument on the matter until a later proceeding.
In my mind, such a ruling is a quintessential exercise of trial court
discretion, and we need not, nor should we, rely upon our resolution of Enos’s
first claim in arriving at that conclusion. Rather, we should review the trial
court’s exercise of discretion from its perspective at the time Enos submitted
his untimely motion, without the benefit of hindsight. The trial court was
persuaded by defense counsel’s position, wrought through zealous advocacy.
We should not quarrel with the trial court’s exercise of its discretion after the
fact simply because, on appellate review, we would not be similarly swayed.
From the face of the untimely motion to suppress, Enos’s position had
apparent merit, and thus, the trial court did not abuse its discretion in
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2 It bears stating that I believe that the evaluation of the apparent merit of
Enos’s motion to suppress was alone sufficient to support the trial court’s
finding that it was in the interests of justice to hold a hearing. The trial court’s
estimation of the merits of a subsequent PCRA claim are not relevant to this
determination. Nonetheless, considerations of judicial economy certainly play
some role when evaluating the interests of justice in this context, however, I
am not persuaded by the trial court’s reasoning in this regard herein.
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considering it. Accordingly, I would reach the merits of the Commonwealth’s
initial challenge.
With regard to the Commonwealth’s first contention, the Majority
reasoned that the issue was controlled by Commonwealth v. Blystone, 549
A.2d 81 (Pa. 1988), and that Enos “forfeited his decreased reasonable
expectation of privacy in his automobile when he invited the CI into it.”
Majority Memorandum at 11. It observed that, “[o]nce he opened his car to
the CI, he relinquished any reasonable expectation of privacy and the
protections of the Fourth Amendment and Article I, Section 8, and he risked
that the entire transaction could be recorded and given to the police.” Id. at
11-12. Hence, the Majority concluded that the trial court abused its discretion
in extending the Dunnavant case to the surreptitious video recording of a
controlled drug buy within a suspect’s car. Insofar as this analysis is
concerned, I agree with the Majority’s legal reasoning and application of
Blystone, supra, to the facts at hand. As such, in light of the above, I offer
this concurring and dissenting memorandum.
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