J-S18019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANCIS CARR                               :
                                               :
                       Appellant               :   No. 1755 MDA 2018

       Appeal from the Judgment of Sentence Entered September 6, 2018
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                        No(s): CP-54-CR-0002263-2016


BEFORE:      BOWES, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.:                     FILED: MAY 22, 2019

        Appellant Francis Carr appeals from the judgment of sentence imposed

following his bench trial convictions for two counts of driving under the

influence of controlled substances (DUI) and one count of the summary vehicle

offense of general lighting requirements.1 Appellant argues that the trial court

erroneously dismissed his omnibus pretrial motion as untimely filed. We are

constrained to vacate the judgment of sentence and remand for a hearing on

Appellant’s omnibus pretrial motion.

        During the early morning hours of July 2, 2016, Officer William Curilla

observed Appellant driving a vehicle with an inoperative brake light. Officer

Curilla initiated a traffic stop, approached Appellant’s vehicle, and requested

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*   Former Justice specially assigned to the Superior Court.

1   75 Pa.C.S. §§ 3802(d)(1)(ii), (2), 4303(b), respectively.
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Appellant’s license, registration, and insurance.     Appellant, who appeared

nervous and fidgety, could only supply the insurance information.

       During their interaction, Officer Curilla noticed a faint odor of marijuana

and observed that Appellant’s eyes appeared to be bloodshot. Officer Curilla

asked Appellant if he would submit to field sobriety tests, which Appellant

agreed to perform. Appellant failed the field sobriety tests, and Officer Curilla

took him into custody on suspicion of DUI.           Officer Curilla transported

Appellant to a hospital for blood testing. Upon arriving at the hospital, Officer

Curilla provided implied consent warnings, and Appellant agreed to have his

blood drawn. Appellant subsequently tested positive for multiple controlled

substances.2

       The Commonwealth filed a criminal complaint on August 25, 2016, and

Appellant appeared for a preliminary hearing on November 15, 2016.

Although the court advised Appellant of his right to apply for assignment of

counsel, Appellant did not request a public defender and proceeded pro se.

See Criminal Docket, printed 11/16/16, at 1.          On March 13, 2017, the

Commonwealth filed a criminal information. That same day, the trial court


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2 The certified record includes Appellant’s toxicology report, which was
prepared by a private laboratory. The report, dated August 1, 2016,
confirmed the presence of amphetamine (6 ng/mL), methamphetamine (77
ng/mL), clonazepam (40 ng/mL), and 7-amino clonazepam (88 ng/mL) in
Appellant’s system. See Post-Trial Mot., 9/14/18, at Ex. A. The report also
stated, “[u]nless alternate arrangements are made by you, the remainder of
the submitted specimens will be discarded six (6) weeks from the date of this
report . . . .” Id.

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issued a notice that it had scheduled Appellant’s arraignment for March 23,

2017.

        The clerk of courts sent the notice, via U.S. mail, to Appellant at an

address in Drums, Pennsylvania. This was the same address listed on the

docket and the criminal complaint. See Criminal Complaint, 8/25/16, at 1;

Criminal Docket, printed 11/16/16, at 1.         The postal service, however,

returned the notice to the clerk of courts.      The envelope with the notice

included a label stating, “Return to Sender,” and “Carr, Francis Moved Left No

Address.”3

        On March 23, 2017, Appellant failed to appear for his arraignment. At

that time, the trial court announced that Appellant’s thirty-day period for filing

pretrial motions would begin, regardless of Appellant’s failure to appear. See

N.T. Arraignment, 3/23/17, at 2-3. On March 29, 2017, the court issued a

bench warrant for Appellant’s arrest.

        On June 12, 2017, the trial court entered an order lifting the bench

warrant and reinstating bail. The order stated, “1) [Appellant] shall reside at

B 149 Foster Ave., Freeland, PA 18224 and shall not relocate without prior

approval of [t]he [c]ourt. 2) [Appellant] shall notify the Clerk of Courts and

the District Attorney of any change of address.” Order, 6/12/17. The record

contains no further explanation regarding Appellant’s failure to appear at the



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3The clerk of courts docketed the returned arraignment notice and envelope
on May 4, 2017, and they are included in the certified record.

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March 23, 2017 arraignment or the circumstances surrounding the court’s

decision to lift the bench warrant.

      Thereafter, the trial court scheduled trial for the August 2017 term. On

August 14, 2017, Appellant filed a pro se motion for continuance, claiming he

needed additional time to obtain counsel.      The court granted Appellant’s

motion and continued the matter until November 3, 2017. On October 30,

2017, trial counsel entered his appearance on Appellant’s behalf. That same

day, Appellant filed a counseled motion for continuance to obtain and review

discovery. The court granted Appellant’s continuance motion.

      On January 29, 2018, Appellant filed an omnibus pretrial motion.

Appellant’s filing included a petition for a writ of habeas corpus. Appellant

also included a motion to suppress all evidence relating to the blood tests.

Specifically, Appellant claimed that the Commonwealth failed to preserve his

blood samples, thereby depriving him of the opportunity to examine the

Commonwealth’s evidence. On January 31, 2018, the trial court dismissed

Appellant’s omnibus pretrial motion as untimely filed.

      On July 16, 2018, Appellant filed another omnibus pretrial motion,

including a discussion of the timeliness requirements of Pa.R.Crim.P. 579.

Appellant asked the trial court to treat the omnibus pretrial motion as timely

filed, because “the prescribed time for filing said motions expired when

[Appellant] was representing himself and not aware of what defenses were

available. In addition, new facts regarding the status of the blood evidence in

this case did not become known until more recently.” Omnibus Pretrial Mot.,

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7/16/18, at 3 (unpaginated). The trial court declined to consider the re-filed

omnibus pretrial motion.4

       Following a bench trial, the trial court found Appellant guilty of two

counts of DUI and the summary vehicle offense of no rear lighting.            On

September 6, 2018, the court sentenced Appellant to seventy-two hours to

six months’ imprisonment. The court also granted Appellant immediate parole

upon completion of the minimum sentence.

       Appellant timely filed post-sentence motions on September 14, 2018.

Among other things, Appellant again argued that the trial court should have

addressed the merits of his omnibus pretrial motion. The trial court denied

Appellant’s post-sentence motion on September 24, 2018.

       Appellant timely filed a notice of appeal, and the trial court ordered him

to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Appellant did not comply with the Rule 1925(b) order, but the court

still filed a Rule 1925(a) opinion to address the claims raised in Appellant’s

post-sentence motions. Regarding Appellant’s omnibus pretrial motion, the

court emphasized that “[n]othing in [Appellant’s] motion reflects that the

opportunity to file the motion within the required time did not exist, or the



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4 We note that one jurist entered the January 31, 2018 order dismissing
Appellant’s omnibus pretrial motion as untimely filed, and a second jurist
presided over Appellant’s bench trial and declined to consider the re-filed
omnibus pretrial motion.



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interest of justice would require [the trial c]ourt to accept the untimely

[pretrial] motion.”5 Trial Ct. Op., 12/20/18, at 4.

       Appellant now raises one issue for our review:

       Whether this trial court erred in denying Appellant’s pretrial
       motion(s) as untimely when they clearly fell within an . . .
       exception to the applicable rule?

Appellant’s Brief at 5.

       Appellant contends he proceeded pro se during the initial portion of his

case, including the thirty-day period following his arraignment.       Id. at 15.

Appellant asserts that he is a layman in the law, who was unaware of the

defenses and grounds for relief that he could have raised in an omnibus

pretrial motion.     Id.   Assuming he should have been aware of such legal

arguments, Appellant claims “sufficient facts necessary to raise [the]

arguments did not become available until after trial counsel was retained . . .

.” Id. Based upon the foregoing, Appellant concludes the trial court should

have addressed the merits of the issues raised in his omnibus pretrial motion.

Id. at 16.

       The standard of review for a trial court’s dismissal of a petition for writ

of habeas corpus or a motion to suppress as untimely is abuse of discretion.
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5  “If an appellant in a criminal case was ordered to file a [Rule 1925(b)]
Statement and failed to do so, . . . the appellate court shall remand for the
filing of a Statement nunc pro tunc and for the preparation and filing of an
opinion by the judge.” Pa.R.A.P. 1925(c)(3). Here, trial counsel failed to
comply with the order directing the filing of a Rule 1925(b) statement.
Nevertheless, we decline to remand the matter in light of the trial court’s filing
of a Rule 1925(a) opinion that addresses the issue Appellant raises on appeal.
See Commonwealth v. Thompson, 39 A.3d 335, 340 (Pa. Super. 2012).

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See Rivera v. Pa. Dept. of Corrections, 837 A.2d 525, 528 (Pa. Super.

2003) (providing the standard of review for an order denying a petition for

writ of habeas corpus); Commonwealth v. Long, 753 A.2d 272, 279 (Pa.

Super. 2000) (explaining that a defendant must file a suppression motion prior

to trial, unless the opportunity did not previously exist or the interests of

justice otherwise require; whether the opportunity did not previously exist or

the interests of justice otherwise require are matters for the discretion of the

trial judge).

      “Unless otherwise required in the interests of justice, all pretrial

requests for relief shall be included in one omnibus motion.” Pa.R.Crim.P.

578. Rule 579 sets forth the timeliness requirements for omnibus pretrial

motions as follows:

      Rule 579. Time for Omnibus Pretrial Motion and Service

      (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.

                                  *    *    *

      Comment: Contemplated within the concept of cause shown is a
      finding by the court that discovery has not been completed, or a
      bill of particulars has not been furnished, or that contested
      motions for discovery or for a bill of particulars are pending.
      “Arraignment” for purposes of this rule also means any proceeding
      held in lieu of arraignment in accordance with local rule, as
      permitted under Rule 571. This rule is not intended to preclude
      the filing by any party of a motion prior to arraignment when

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      circumstances necessitate such a motion and when otherwise not
      precluded by rule or by law.

Pa.R.Crim.P. 579(A).    See also Commonwealth v. Borovichka, 18 A.3d

1242, 1248 (Pa. Super. 2011) (explaining that the defendant’s untimely

presentation of a suppression claim, relating to the destruction of blood

samples, resulted in waiver where defense counsel did not offer any reason

why the claim was not raised in a timely fashion and none of the Rule 579(A)

exceptions applied).

      Instantly, the trial court dismissed Appellant’s omnibus pretrial motion

as untimely, emphasizing that Appellant “was a fugitive from justice for three

months after he failed to attend court for his arraignment on March 23, 2017,

and therefore [Appellant] should not be allowed to file an untimely [pretrial]

motion.”   Trial Ct. Op. at 4.   Significantly, the court ignored the fact that

Appellant may not have actually received notice of the arraignment date,

because the notice was returned to the clerk of courts as described herein.

Additionally, the record contains no further explanation regarding Appellant’s

failure to appear at the March 23, 2017 arraignment or the circumstances

surrounding the court’s decision to lift the bench warrant.

      We conclude that Appellant’s failure to receive notice of the arraignment

date constitutes a breakdown in court operations. See Commonwealth v.

Parks, 768 A.2d 1168, 1172 (Pa. Super. 2001) (reiterating that “adequate

and timely notice to the accused of court proceedings is fundamental to the

constitutionally guaranteed right to a fair trial”). Such a breakdown amounts

to “cause shown” for an extension of the deadline for filing an omnibus pretrial

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motion. See Pa.R.Crim.P. 579(A). Under these circumstances, we conclude

that the interests of justice required that the trial court consider the merits of

Appellant’s omnibus pretrial motion, and the dismissal of the motion as

untimely was an abuse of the court’s discretion. See Rivera, 837 A.2d at

528; Long, 753 A.2d at 279.

      Accordingly, we vacate the judgment of sentence and remand the case

for the trial court to conduct a hearing limited to the issues presented in

Appellant’s omnibus pretrial motions filed on January 29, 2018 and re-filed on

July 16, 2018. If the trial court determines that the omnibus pretrial motions

raise meritorious issues, it may grant additional relief. If the court determines

that the omnibus pretrial motions are meritless, the court may re-impose the

original judgment of sentence.

      Judgment of sentence vacated.         Case remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2019




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