J-A14033-17
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
STEWART ENOS,
Appellee 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 and SHOGAN, JJ.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 08, 2017
This is a Commonwealth appeal from the March 22, 2016 order
suppressing video evidence of a drug transaction between Appellee, Stewart
Enos, and a confidential informant (“CI”). After careful review, we reverse
and remand this case for trial.
The trial court summarized the pertinent facts, which are supported by
our independent review of the record, as follows:
Instantly, the CI arranged to purchase drugs from
someone named “Stew.” The CI was outfitted with a concealed
camera which did not record audio of the transaction. The CI
was searched and given premarked currency to purchase a
“dove” or twenty dollars’ worth of cocaine. While Sergeant
[Michael] Markovich [of the Pottstown Police Department]
observed, the CI then proceeded to a designated meeting area
where a white Toyota, driven by [Appellee,] pulled up. The CI
entered [Appellee’s] car and was driven about a half a block.
The CI exited the vehicle, returned to the location where Sgt.
Markovich dropped him off[,] and gave police a green bag
containing the alleged cocaine. During the controlled buy, law
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enforcement could not see into the tinted windows of the car
from their nearby vantage point. The vehicle was permitted to
leave the scene of the buy[,] and [Appellee] was not arrested
until a year later. Law enforcement was able to identify
[Appellee] from the video recorded by the CI.
Trial Court Opinion, 8/12/16, at unnumbered 5 (internal citations omitted).
An information was filed on January 23, 2015, charging Appellee with
violating 35 P.S. 780-113(a)(30), possession with intent to deliver a
controlled substance, 35 P.S. 780-113(a)(16), possession of a controlled
substance, and 35 P.S. 780-113(a)(32), possession of drug paraphernalia.
Over the course of the next year, the parties filed numerous motions
including, inter alia, a petition for writ of habeas corpus, waivers of
Pa.R.Crim.P. 600, motion to revoke bail, and a motion for recusal.
On March 21, 2016, Appellee filed a “Motion In Limine Concerning
Video Evidence” and “Defendant’s Motion to Reveal the Identity of the
Confidential Informant.” Following a hearing the same date, the trial court
denied both motions. The case proceeded to jury selection, and a jury was
selected and sworn. The next day, March 22, 2016, Appellee filed a “Motion
to Suppress” and “Defendant’s Motion In Limine Concerning the Defendant’s
Criminal Record.” The court held a hearing on the motion to suppress. At
the conclusion of the hearing, the trial court suppressed the video recording
based on our decision in Commonwealth v. Dunnavant, 63 A.3d 1252
(Pa. Super. 2013), affirmed by an equally divided court, 107 A.3d 29 (Pa.
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2014). In doing so, the trial court also declared a mistrial based on manifest
necessity, as follows:
The [c]ourt previously declared that [the suppression] motion
was out of time, meaning he did not demonstrate that he was
prohibited from determining this issue and particularly the case,
the Dunnavant case.
However, on the other one [sic] that commands this to the
[c]ourt’s discretion, the [c]ourt granted [Appellee] the out of
time filing of that motion and the hearing on that motion in the
interest of justice.
Following presentation of further evidence and the
argument of the parties, rebriefing of the parties, this [c]ourt
granted the motion and suppressed the video. The
Commonwealth sought a reconsideration of that and that was
denied.
It has all occurred in the span of approximately five hours,
and at this stage we are in the place to where, again, I am not
going ascribe it to the Commonwealth because the [c]ourt finds
that the Commonwealth has committed absolutely no
misconduct. Nothing that has occurred here has had anything to
do with the Commonwealth, how it’s presented its evidence,
what the Commonwealth has done. It has nothing to do
procedurally with anything.
So in any terms of exposing [Appellee] to double jeopardy
because the Commonwealth is now out of time intending to
pursue its right which is automatically guaranteed by the Rules
of Appellate Procedure to pursue an appeal of this [c]ourt’s
ruling, and therefore that is the manifest necessity the [c]ourt
sees.
And I don’t want to get hung up on the Commonwealth
making the motion because at this stage they’ve said to the
[c]ourt we want to appeal your ruling. And they have every
right to do so. And all they are required to do is under
[Pa.R.A.P.] 311(d) make a declaration to the Superior Court that
their case cannot go forward.
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They may take an appeal right from an order that does not
end the entire case where the Commonwealth will certify in its
Notice of Appeal that the order will terminate or substantially
handicap the prosecution. They intend to tell the Superior Court
in their notice of certification that my order will handicap their
case.
And what occurs with that is then left to the appellate
courts, but clearly it is of no doing of the Commonwealth other
than simply pursuing a right guaranteed by the Rules of
Appellate Procedure and also the Rules of Criminal Procedure
should this arise.
Therefore, the [c]ourt is declaring a mistrial for manifest
necessity indicating that there was nothing that was done at all
by the Commonwealth that in any way provoked this. And in
fact, it occurred solely due to the error of defense counsel.
N.T., 3/22/16, at 60–62 (emphasis added). The Commonwealth appealed.1
Both the Commonwealth and the trial court complied with Pa.R.A.P. 1925.
The Commonwealth presents the following two issues on appeal:
I. Did the trial court err when it extended Commonwealth v.
Dunnavant, 63 A.3d 1252 (Pa. Super. 2013), aff’d by an
equally divided court, 107 A.3d 29 (Pa. 2014), to suppress
a video of a drug transaction in [Appellee’s] car, where he
had a diminished expectation of privacy?
____________________________________________
1 The trial court noted that the “Commonwealth’s April 12, 2016 Notice of
Appeal did not contain the required certification pursuant to Pa.R.A.P.
311(d); however, an amended Notice of Appeal with the necessary language
was filed on April 14, 2016.” Trial Court Opinion, 8/12/16, at unnumbered 2
n.1. The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order terminates or substantially handicaps the prosecution.
Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017);
Pa.R.A.P. 311(d). Thus the appeal is properly before us. Commonwealth
v. Haines, ___ A.3d ___, 2017 PA Super 252, *1 n.1 (Pa. Super. filed
August 2, 2017).
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II. Did the trial court abuse its discretion when it heard
[Appellee’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.
Our standard of review of a trial court’s order granting a defendant’s
motion to suppress evidence is well established:
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. Commonwealth v. Miller, 56 A.3d 1276, 1278–1279
(Pa. Super. 2012) (citations omitted). “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.”
Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
(2010) (citation omitted).
Petty, 157 A.3d at 955 (quoting Commonwealth v. Korn, 139 A.3d 249,
252–253 (Pa. Super. 2016)).
The Commonwealth first contends that the trial court erroneously
suppressed the drug-transaction video recording and improperly extended
Commonwealth v. Dunnavant, 63 A.3d 1252 (Pa. Super. 2013)
(“Dunnavant I”). In Dunnavant I, this Court held that the warrantless
covert video recording inside a defendant’s home violated Article I,
Section 8 of the Pennsylvania Constitution. The Commonwealth asserts that
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the trial court’s extension of that holding outside of a defendant’s home “is
inconsistent with prior Pennsylvania Supreme Court precedent,” the long-
recognized “diminished expectation of privacy in [a] car,” and
“Dunnavant’s foundational precedent.” Commonwealth’s Brief at 10. The
Commonwealth maintains that Dunnavant I is merely the application of an
exception to the general rule, established in Commonwealth v. Blystone,
549 A.2d 81 (Pa. 1988), aff’d sub nom. Blystone v. Pennsylvania, 494
U.S. 299 (1990), that a defendant “lacks a reasonable expectation of privacy
in things he voluntarily discloses to someone else.” Commonwealth’s Brief
at 12. Thus, the Commonwealth contends the trial court improperly
extended Dunnavant I to apply to the recording in Appellee’s vehicle.
The Commonwealth further avers that Appellee forfeited his decreased
reasonable expectation of privacy when he invited the CI into his car.
Commonwealth’s Brief at 13. The Commonwealth urges that once Appellee
opened his car to the CI, “he risked that the informant might record
everything that occurred inside the car and give that recording to the
police.” Id. The Commonwealth acknowledges that a defendant retains a
“modicum of a reasonable expectation of privacy in his car,” but “far less
than in his home.” Id. at 19.
Appellee counters that this case involves three precepts: 1) there is a
reasonable expectation of privacy in a vehicle, citing Commonwealth v.
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Caban, 60 A.3d 120 (Pa. Super. 2012);2 2) “but for” a few exceptions, a
warrantless search is per se unreasonable, citing Commonwealth v. Blair,
575 A.2d 593 (Pa. Super. 1990); and 3) “the warrantless use of a concealed
video camera in a residence is per se unreasonable,” citing Dunnavant I.
Appellee’s Brief at 7 (emphasis added). Appellee underscores that the CI
was reliable and known to Sergeant Markovich for nine years, and Sergeant
Markovich testified that he had time to secure a warrant. Appellee’s Brief at
8.
We begin our analysis by examining the underpinnings of Dunnavant
I. In that case, this Court affirmed a trial court’s suppression of a silent
video recording worn by a confidential informant obtained inside the
defendant’s residence. The question before us was “whether the defendant
has a privacy interest in not being videotaped secretly in his own home.”
Dunnavant I, 63 A.3d at 1256. We further noted that because the
government conducted the video recording, “the question [became] one of
constitutional proportion.” Id.
In that case, the intended meeting place between the informant and
the defendant originally was a street corner, but when the defendant
arrived, he transported the informant in his car to the defendant’s residence,
____________________________________________
2 We noted in Commonwealth v. Coleman, 130 A.3d 38 (Pa. Super.
2015), that the Caban Court relied “on a since overruled standard for
reviewing suppression claims.” Coleman, 130 A.3d at 42 n.1.
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where the informant was invited inside and the drug-buy transpired.
Dunnavant I, 63 A.3d at 1253–1254. The camera recorded, among other
things, the informant’s ride in the defendant’s car and the drug purchase
inside of the home. It is noteworthy that the trial court suppressed only the
“depict[ion of] the interior of the [d]efendant’s residence”; it did not
suppress the footage of the informant in the defendant’s vehicle. Id. at
1254.
The Dunnavant I Court relied upon Commonwealth v. Kean, 556
A.2d 374 (Pa. Super. 1989), as controlling authority. Dunnavant I, 63
A.3d at 1256 (“Kean remains controlling law on the subject of a defendant’s
‘legitimate expectation of privacy not only in their home, but also in the
reflection of their home that a videotape captures and preserves.’”). We
stated therein that “the dweller of a residence does not expect that an
invitee would videotape events occurring inside his or her residence without
his or her consent.” Dunnavant I, 63 A.3d at 1256.
On appeal, our Supreme Court was equally divided,3 thus resulting in a
decision of affirmance. Commonwealth v. Dunnavant, 107 A.3d 29 (Pa.
2014) (“Dunnavant II”). The opinions in Dunnavant II suggest
agreement with the Commonwealth’s position in this appeal. Now Chief
____________________________________________
3 Now Chief Justice Saylor was joined by Justices Baer and Todd in support
of affirmance; Former Chief Justice Castille was joined by former Justices
Eakin and Stevens in support of reversal.
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Justice Saylor, writing in support of affirmance, stressed that unlike in
Blystone, the conversations in Dunnavant II occurred “in the sanctity of
one’s home,” where of all the places that exist, an individual “must feel
secure in his ability to hold a private conversation . . . .” Dunnavant II,
107 A.3d at 30. Similarly, Justice Todd, also writing in support of
affirmance, opined that the place in which the warrantless intrusion and
secret video were made by the CI, inside the defendant’s home, “was the
critical factor in rendering this conduct a constitutional violation.” Id. at 31.
Justice Todd concluded that the warrantless video recording made inside of
the defendant’s home should be suppressed in accordance with
Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), which established that
“a person does not forfeit the strong privacy interest he or she has in [his]
home or residence just by allowing an individual to come inside.” Id. at 32.
In support of reversal, then Chief Justice Castille, joined by Justices
Eakin and Stevens,4 focused upon Kean’s reliance on Blystone, 549 A.2d
81, “a case that considered the constitutionality of Pennsylvania’s Wiretap
Act (18 Pa.C.S. §§ 5701–5782) when a suspect is audio-recorded by a CI
____________________________________________
4 The justices who would have reversed Dunnavant I are no longer on the
High Court; furthermore, as they did not find a controlling privacy interest in
Dunnavant II, which occurred inside a residence, it is doubtful they would
find such interest in a motor vehicle.
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wearing a recording device.”5 Dunnavant II, 107 A.3d at 36. The opinion
in support of reversal concluded that “given the exigent circumstances, and
given that there was no underlying unlawful governmental conduct, such as
‘sending’ a CI into a citizen’s home for the purpose of recording a
conversation, no constitutional violation occurred.” Dunnavant II, 107
A.3d at 51.
In the present case, the trial court’s explanation in support of its
decision to suppress the video is very brief, without analysis of any relevant
case law; indeed, the court only minimally referenced Dunnavant I. It
further determined that the window tint of Appellee’s vehicle, in combination
with the holding in Dunnavant I, compelled suppression of the video in this
case. Trial Court Opinion, 8/12/16, at unnumbered 4–5. Also as noted by
the trial court, Appellee did not present any evidence, such that the
Commonwealth’s evidence was uncontradicted. Trial Court Opinion, 8/12/16,
at unnumbered 4. Without citing support and merely noting Appellee’s
reliance on Dunnavant I, the trial court determined that the CI’s actions at
the behest of the government, in light of the concealment of the transaction
by the car’s window tint, constituted an unreasonable search. It concluded
that Appellee had an expectation of privacy in his vehicle. Id. at 5.
____________________________________________
5 The applicability of Blystone to the instant case is premised upon our
Supreme Court’s acknowledgment in Brion that “[i]mplicit in any discussion
of an expectation that a communication will not be recorded, is a discussion
of the right to privacy.” Brion, 652 A.2d at 288.
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We have examined the law and the arguments of the parties in light of
the record. We conclude that the issue is controlled by Blystone, not
Dunnavant. As our Supreme Court explained in Blystone:
It has been held that the protection provided by Article I, §
8 of the Pennsylvania Constitution extends to those zones where
one has a reasonable expectation of privacy, Commonwealth
v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) cert. denied, 444
U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); and that
Article I, § 8 creates an implicit right to privacy in this
Commonwealth. Commonwealth v. Platou, 455 Pa. 258, 312
A.2d 29 (1973) cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41
L.Ed.2d 1146 (1974). To determine whether one’s activities fall
within the right of privacy, we must examine: first, whether
appellant has exhibited an expectation of privacy; and second,
whether that expectation is one that society is prepared to
recognize as reasonable. Commonwealth v. Sell, supra; Katz
v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19
L.Ed.2d 576 (1967) (Concurring Opinion, Harlan, J.);
Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983).
Blystone, 549 A.2d at 87.
The issues in Blystone involved a defendant’s constitutional challenge
to the Pennsylvania Wiretap Act, 18 Pa.C.S. §§ 5701–5782, and an
individual’s lack of privacy interest in information voluntarily disclosed to an
informant. The Blystone court reinforced that a defendant lacks a
reasonable expectation of privacy in things he voluntarily exposes to
someone else. Blystone, 549 A.2d at 87.
Herein, Appellee forfeited his decreased reasonable expectation of
privacy in his automobile when he invited the CI into it. Once he opened his
car to the CI, he relinquished any reasonable expectation of privacy and the
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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.
As the Commonwealth points out, however, the Blystone doctrine has
its limits. See, e.g., Kean, 556 A.2d 374, and Brion, 652 A.2d 287;
Commonwealth’s Brief at 13. One year following Blystone, this Court held
that it did not apply to video recordings of private activities within someone’s
bedroom. Kean, 556 A.2d at 381–382 (distinguishing Blystone and
observing that under Article I, Section 8 of the Pennsylvania Constitution, a
Pennsylvania citizen “may maintain a legitimate expectation of privacy in the
home notwithstanding the fact that the interior of the home is secretly
videotaped by a guest.”). In Kean, this Court distinguished Blystone on
the basis that video recording persons in their own home—indeed, in their
own bed while engaging in sexual relations—was “uniquely invasive.” Id. at
382.
Subsequently, in Brion, our Supreme Court, noting the issue before it
was “whether the Blystone rationale extends to cases involving the
surreptitious recording of a conversation in a private residence,” held that
“an individual can reasonably expect that his right to privacy will not be
violated in his home through the use of any electronic surveillance.” Brion,
652 A.2d at 289 and n.2. Thus, the Brion Court determined that Blystone
did not apply within a defendant’s home. Clearly, a defendant’s elevated
expectation of privacy within his home is fundamental to the limitations in
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both Kean and Brion. Kean, 556 A.2d at 380 (“Upon closing the door of
one’s home to the outside world, a person may legitimately expect the
highest degree of privacy known to our society.”); Brion, 652 A.2d at 287
(“[T]he right to privacy in one’s domain is sacrosanct. . . .”). Thus, the
Blystone doctrine yields to a defendant’s paramount privacy interest in his
home.
Here, the limitations discussed supra do not apply. The silent video
recording, which took place in Appellee’s automobile, does not present the
same privacy concerns. “[E]ven though privacy protections are implicated
under Article I, § 8, the heightened privacy concerns involved in a seizure
from an individual’s person are not present where an object is seized from a
vehicle.” Commonwealth v. McCree, 924 A.2d 621, 630 (Pa. 2007); see
also Commonwealth v. Holzer, 389 A.2d 101, 106 (Pa. 1978)
(expectation of privacy in one’s vehicle significantly less than in one’s home
or office); Commonwealth v. Bosworth, 456 A.2d 661, 663–664 (Pa.
Super. 1983) (“It is by now well settled that a person’s expectation of
privacy with respect to an automobile is significantly less than with respect
to his or her home or office.”). Automobiles are accorded a diminished
expectation of privacy because of their “open construction, their function,
and their subjection to a myriad of state regulations.” Commonwealth v.
Timko, 417 A.2d 620, 623 (Pa. 1980).
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Thus, we conclude that Blystone compels the conclusion that
suppression of the video recording in this case was an abuse of discretion.
Appellee met with the CI for the purpose of selling him drugs and voluntarily
invited him into the car. The entire transaction occurred inside that vehicle.
In line with Blystone, once Appellee opened his automobile to the CI, he
risked that everything occurring inside the car would be recorded and given
to the police. Appellee therefore relinquished his reasonable expectation of
privacy and the protections of the Fourth Amendment and Article I, Section
8. Accordingly, the trial court erred in suppressing the video recording of
the drug transaction.
The Commonwealth alleges in its second issue that the trial court
abused its discretion when it entertained Appellee’s untimely suppression
motion after the jury had been sworn, asserting that the merits of the
motion were not so apparent that the interests of justice demanded hearing
it. To the contrary, the Commonwealth contends that
[t]he interests of justice did not support hearing [Appellee’s]
midtrial motion to suppress the video of him selling drugs
because it was unsupported by existing law. There is no case
supporting the proposition that a defendant has a reasonable
expectation that he will not be video recorded after inviting a
person into his car.
Commonwealth’s Brief at 27. Furthermore, it points out that defense
counsel admitted that the grounds for the motion previously existed. Id. at
22–23. However, despite observing that the tardy presentation of the
motion “occurred solely due to the error of defense counsel” in failing to
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diligently research its case, N.T., 3/22/16, at 62, and recognizing the novelty
of Appellee’s argument, the trial court opined that the interests of justice
required it to hear the untimely suppression motion so as to avoid a later
Post Conviction Relief Act6 (“PCRA”) proceeding. Id. at 60; Trial Court
Opinion, 8/12/16, at unnumbered 2.
The Commonwealth notes Appellee’s procedural missteps, as follows:
On the day before trial, March 21, 2015, Appellee filed a motion in limine
seeking to preclude the Commonwealth’s admission of the video of the drug
transaction recorded by the CI. The trial court held a hearing on the issue,
following which it denied the motion. The parties then selected a jury that
was seated and sworn. The next day, defense counsel submitted a
suppression motion. Counsel told the court that he had “just discovered”
Dunnavant I, a case from 2013, that he believed would dissuade the court
from its previous ruling. N.T., 3/22/16, at 5. The trial court cited the waiver
provision of Pa.R.Crim.P. 581 and expressed incredulity that defense counsel
appeared to be invoking the exception of Rule 581, that the opportunity to
locate the case “did not previously exist.” Pa.R.Crim.P. 581(B).7 Defense
____________________________________________
6 42 Pa.C.S. §§ 9541–9546.
7 Pa.R.Crim.P. 581 provides, in pertinent part:
(A) The defendant’s attorney, or the defendant if unrepresented,
may make a motion to the court to suppress any evidence
(Footnote Continued Next Page)
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counsel admitted, “The opportunity did previously exist.” N.T., 3/22/16, at
5. The trial court then protested as follows:
Here’s the dilemma the [c]ourt is put into, meaning that, you
know, at this stage if I am to, you know, strictly enforce Rule
581, this issue is deemed waived. And if it is deemed waived—
and now you’ve placed on the record that you simply did not
do the research necessary in a timely fashion to comply
with the rules, you would have discovered this case. But you
didn’t.
The interest of justice for this [c]ourt has taken on a whole new
view. The interest of justice is the question of whether does it
get approached now or does it get approached only if this
defendant was convicted and was to file a Post Conviction Relief
Act [(“PCRA”) petition] against you for clearly not following this
rule.
* * *
At this stage I am going to permit the untimely filing of this
Motion to Suppress Video Evidence.
(Footnote Continued) _______________________
alleged to have been obtained in violation of the defendant’s
rights.
(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 to be waived.
* * *
Comment:
* * *
It should be noted that failure to file the motion
within the appropriate time limit constitutes a waiver
of the right to suppress.
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N.T., 3/22/16, at 8–9 (emphasis added); Trial Court Opinion, 8/12/16, at
unnumbered 3.
In defending its decision to entertain the untimely suppression motion,
the trial court observed in its Pa.R.A.P. 1925(a) opinion that the
Commonwealth did not request a continuance. Trial Court Opinion, 8/12/16,
at unnumbered 3. It further concluded that “the potential for a meritorious
[PCRA] claim based on counsel’s deficient performance in failing to
research and file a timely suppression motion required [the c]ourt, in
the interests of justice, to permit the untimely filing of a Motion to Suppress
Video Evidence.” Id. at unnumbered 3–4 (emphasis added).
In supporting its position that the trial court abused its discretion in
entertaining, and ultimately granting, Appellee’s untimely suppression
motion, the Commonwealth cites Pa.R.Crim.P. 578, which provides that a
defendant must file a single omnibus pretrial motion. The Commonwealth
also refers us to Pa.R.Crim.P. 579(A), which requires that such motion be
filed within thirty days after arraignment unless, inter alia, the opportunity
did not previously exist or counsel was not aware of the grounds for the
motion. The Commonwealth’s position is that the “interests of justice did
not support hearing defendant’s midtrial motion to suppress the video of him
selling drugs because it was unsupported by existing law.” Commonwealth’s
Brief at 27. The Commonwealth decries the trial court’s decision to
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“abandon[] the Rules of Criminal Procedure based on the ‘potential for a
meritorious PCRA claim’ . . . .” Id. at 28.
The Commonwealth’s arguments are compelling. We do not condone
the late consideration of Appellee’s suppression motion, and we are
constrained to find that the trial court erred in entertaining it.
Under Pa.R.Crim.P. 581(B), the defendant shall file suppression
issues within an omnibus pretrial motion. “The motion shall
state specifically and with particularity the evidence sought to be
suppressed, the grounds for suppression, and the facts and
events in support thereof.” Pa.R.Crim.P. 581(D). Thus, “the
rule is designed to provide one single procedure for the
suppression of evidence.” Rule 581, official comment. 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 ‘interests 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.
Commonwealth v. Johonoson, 844 A.2d 556, 560–561 (Pa. Super. 2004)
(footnote omitted).
Furthermore, under Pa.R.Crim.P. 579, an omnibus pretrial motion
must be filed within thirty days of arraignment. The only exceptions to this
rule are: (1) the opportunity to do so did not exist, (2) the defendant or
defense counsel was unaware of the grounds for the motion, or (3) the time
for filing was extended by the court for good cause shown. Pa.R.Crim.P.
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579(A); Commonwealth v. Borovichka, 18 A.3d 1242, 1248 (Pa. Super.
2011).
Examining the exceptions of Pa.R.Crim.P. 579(A), it is clear that none
is applicable. Appellee had the opportunity to file, and indeed, did file
multiple and various pretrial motions. N.T., 3/22/16, at 5 (“[T]he [c]ourt
would note that you have done extensive research in this case and have
presented various motions to this [c]ourt which we did hear pretrial.”). Most
recently, counsel had filed the aforementioned motion in limine. Thus, the
opportunity to file the motion did exist; significantly, counsel has not averred
a lack of opportunity to do so. Regarding a lack of awareness of the grounds
for the motion, portions of the record highlighted supra reveal the incredulity
of the trial court regarding counsel’s failure to present a timely suppression
motion, especially in light of counsel’s presentation of the earlier motion in
limine that dealt with the exact evidence. Counsel, instead, proclaimed he
had done “a little bit of extra research and found this case[, Dunnavant I,
63 A.3d 1252,] which I was not aware of before.” N.T., 3/22/16, at 6. Now,
on appeal, counsel8 explains, “It was a mistake, nothing more, nothing less.
Mistakes happen . . . .” Appellee’s Brief at 4. Counsel’s “mistake,” however,
does not equate to a defendable “lack of awareness” as encompassed by
Rule 579(A). Finally, regarding the third exception, there has been no
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8 New counsel represents Appellee on appeal.
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assertion, and the record does not reveal, that the trial court extended the
time for filing an omnibus pretrial motion.
The trial court’s sole reason for addressing the untimely suppression
motion was its observation “that the potential for a meritorious [PCRA] claim
based on counsel’s deficient performance in failing to research and
file a timely suppression motion required this [c]ourt, in the interests of
justice, to permit the untimely filing . . . .” Trial Court Opinion, 8/12/16, at
unnumbered 3–4 (emphasis added). While such reason appeals to this
Court’s ongoing concern regarding the interests of judicial economy, we do
not find that it meets the criminal procedural rule’s concern for the interest
of justice.
We agree with the Commonwealth that the trial court’s departure from
the rules of criminal procedure based on “the potential for a meritorious
[PCRA] claim” deprived the Commonwealth of its ability to address such
claims in the “proper setting under the established ineffectiveness
standards.” Trial Court Opinion, 8/12/16, at unnumbered 3;
Commonwealth’s Brief at 28. In the context of the PCRA, a petitioner must
prove more than merely the arguable merit of an unfiled suppression claim
when seeking collateral relief. Commonwealth’s Brief at 28; see, e.g.,
Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa. Super. 2016) (To
attain relief from ineffective assistance of counsel, PCRA petitioner must
demonstrate that: “(1) the underlying substantive claim has arguable merit;
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(2) counsel whose effectiveness is being challenged did not have a
reasonable basis for his or her actions or failure to act; and (3) the petitioner
suffered prejudice as a result of counsel’s deficient performance”), appeal
denied, 2017 WL 2538785, 69 MAL 2017 (Pa. filed June 12, 2017).
Moreover, as the Commonwealth suggests, the trial court’s action absolved
Appellee of the applicable burdens of proof and persuasion that are born in
the PCRA context. See, e.g., Commonwealth v. Jones, 596 A.2d 885,
888–889 (Pa. Super. 1991) (“[T]he reasonableness of trial counsel’s actions
is a prong of the ineffective assistance of counsel claim which must be
proven and not merely rebutted.”). We endorse the Commonwealth’s
contention that this Court will not permit defense counsel to “use the PCRA
as a shield from [his] admitted negligence.” Commonwealth’s Brief at 30.
Furthermore, and significantly, this case does not involve only an
untimely motion to suppress. It encompasses a motion to suppress filed
after a jury has been sworn and double jeopardy has attached.
Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (“In
Pennsylvania, jeopardy does not attach and the constitutional prohibition
against double jeopardy has no application until a defendant stands before a
tribunal where guilt or innocence will be determined. In a criminal jury trial,
jeopardy attaches when the jury is sworn.”) (citation omitted). As such, the
grant of suppression impaired the Commonwealth’s right to appeal the order
in that a manifest necessity had to be found by the trial court. Thus, the
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suppression motion risked the Commonwealth’s right to appeal. While the
trial court instantly found a manifest necessity for a mistrial, that decision
was discretionary. Commonwealth v. Walker, 954 A.2d 1249, 1254 (Pa.
Super. 2008) (It is within a trial judge’s discretion to declare a mistrial sua
sponte upon the showing of manifest necessity, and appellate court will not
disturb the decision absent an abuse of that discretion).
There was no legitimate and compelling reason why Appellee could not
have located and proffered Dunnavant I at the pretrial hearing addressing
his motion in limine. See Johonoson, 844 A.2d at 561 (explaining that
because the circumstances were known to the appellant, he could have
proffered the basis for his untimely supplemental suppression motion at the
time of his original pretrial suppression motion; therefore the trial court
properly denied the supplemental motion as untimely). We therefore
conclude that the trial court abused its discretion in failing to deny the
suppression motion as untimely. Furthermore, and relevant to a showing of
prejudice within the context of an ineffectiveness claim, Dunnavant I is not
directly on point. In fact, we concluded that the trial court’s extension of
Dunnavant I cannot stand. Thus, because Appellee sought extension of
the current law, the merits of the suppression motion were not so apparent
as to require the motion to be heard. See Commonwealth v. Williams,
323 A.2d 862, 866 (Pa. Super. 1974) (discretion to excuse the defendant’s
failure to file pretrial suppression motion should be exercised where “the
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merits of counsel’s oral motion were so apparent that justice required that it
be heard.”). Indeed, Appellee’s argument was that the trial court should
change the existing law, which the trial court clearly recognized, as
evidenced by its initial reaction to the late motion. N.T., 3/22/16, at 7–9.
As argued by the Commonwealth, “the merits of a theory unsupported by
existing law could not be so facially meritorious as to warrant in immediate
hearing.” Commonwealth’s Brief at 28 (emphasis added). The suppression
court’s sole basis for its decision—the avoidance of a potential collateral
claim—did not warrant abandonment of the time requirement of
Pa.R.Crim.P. 578, especially because double jeopardy had attached.
Order reversed; case remanded to the common pleas court;
jurisdiction relinquished.
P.J.E. Bender files a Concurring Memorandum.
Judge Bowes files a Concurring & Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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