J-A17016-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA


                     v.

ERNEST WILLIAMS,

                          Appellant.                 No. 1569 WDA 2016


            Appeal from the Judgment of Sentence, July 5, 2016,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0016085-2013.


BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

CONCURRING AND DISSENTING MEMORANDUM BY KUNSELMAN, J.:

FILED: January 31, 2019

      This case is a procedural train wreck. The first suppression judge heard

testimony from the officers, but did not see the video that purported to give

them probable cause to stop Williams, because the video was inoperable.

Then, that judge refused to re-open the record to watch the video and see

whether it contradicted the officers’ testimony.    Later, that judge recused

from the case.

      Upon a motion to open the record presented to another judge, that

judge looked at the video, but did not have the benefit of hearing the officers’

testimony first-hand and observing their demeanor on the stand. Moreover,

counsel for Williams never got to cross-examine the officers about the video.

Instead, the new judge, bound by the coordinate jurisdiction rule, made a
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determination    that   he   could   not   overrule   the   first   judge.   See

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (noting that under

the law of the case doctrine, a court involved in later phases of litigated matter

should not reopen questions decided by another judge of that same court or

by higher court in earlier phases of the matter).      From my reading of the

record and the trial court opinion in this case, it did not appear to me that the

second judge performed a de novo review of this issue. Under these facts, I

believe the first suppression judge erred and the error was not cured by the

second judge merely watching the video.      I don’t believe the video, as it was

“introduced” in this case, is even properly part of the record from the

suppression hearing for this Court to view as part of its appellate review to

the suppression court’s ruling. As such, I believe Williams is entitled to a new

suppression hearing, and I dissent from the Majority decision on this issue.

       I would remand this case to the court below with directions to conduct

a new suppression hearing. If, after a new hearing, the suppression judge

determines that the evidence concerned should not be suppressed, then the

judgment of sentence should stand affirmed.           If, on the other hand, it

determines that the evidence concerned or a part of it should be suppressed,

then the judgment of sentence should be vacated and a new trial be granted.

Commonwealth v. Ryan, 419 A.2d 762, 763 (Pa. Super. 1980).

      As for whether probable cause existed to arrest Williams without a

warrant, if the court relied only on the officer’s testimony, without the video

evidence, then probable cause existed to arrest Williams. However, the real

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issue is whether the officers’ testimony was credible.         Because I believe

Williams did not get a full opportunity to question the officers’ credibility at

the suppression hearing because the video was inoperable, again, I believe a

remand for a new suppression hearing is warranted.

         As for Williams’ final claim regarding the failure to dismiss a juror who

saw him in the courthouse hallway, I concur with the Majority decision on that

issue.




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