J-S28039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EARL JOHNSON,

                            Appellant                No. 2001 EDA 2015


          Appeal from the Judgment of Sentence November 10, 2014
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No.: CP-51-CR-0009452-2011


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 24, 2016

        Appellant, Earl Johnson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas (CCP) following

his conviction, after a trial de novo, of possession of a small amount of

marijuana.1     On appeal, Appellant challenges the denial of his motion to

suppress evidence by the Municipal Court of Philadelphia (Municipal Court).

After careful review, we conclude that Appellant has waived his issue and

affirm the judgment of sentence.

        We take the following relevant facts and procedural history from the

CCP’s June 24, 2015 opinion and our independent review of the certified

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(31).
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record. On September 3, 2009, at approximately 11:15 a.m., Philadelphia

Police Officer Michael Haas and his partner, Officer Sliner,2 were directed

over police radio to respond to an incident at an apartment building. Upon

arrival at the scene, while waiting for an elevator in the lobby, the officers

encountered Appellant, whom Officer Haas recognized from a previous

arrest.    Without provocation, Appellant began yelling and cursing at the

officers. In response, Officer Haas asked Appellant if he lived in the building

and requested that he produce identification.        Appellant removed a large

bundle of mail from his pants pocket; the bundle included one small bag of

marijuana. The officers arrested him for the marijuana possession.

        On July 28, 2011, Appellant was tried in the Municipal Court.3 Prior to

trial, Appellant submitted a motion to suppress evidence, which the

Municipal Court denied.4           The Municipal Court convicted Appellant of

possession of a small amount of marijuana, and sentenced him to thirty

days’ probation.

____________________________________________


2
    Officer Sliner’s first name is not apparent from the record.
3
  The record of the proceedings that took place in the Municipal Court is not
included in the certified record transmitted to this Court on appeal.
4
  Philadelphia Court Criminal Division Rule 630 governs pre-trial applications
to suppress evidence in municipal court cases. See Phila. Co. Crim. Div.
Rule 630. Section D of the Rule provides that in such cases, pre-trial
applications to suppress shall be heard on the same day set for trial, and the
judge hearing the application “will hear the same as a Common Pleas Court
Judge.” Id. at (D).



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       On August 17, 2011, Appellant filed a de novo appeal to the CCP. At

the conclusion of Appellant’s November 10, 2014 de novo bench trial, the

court found him guilty of the above-stated offense. It sentenced him to time

served. Appellant did not file any post-trial or post-sentence motions. On

November 20, 2014, he filed the instant, timely appeal.5

       Appellant raises one question for our review: “Did not the [Municipal]

[C]ourt err in failing to suppress the physical evidence where [A]ppellant

was subjected to an investigative detention that was not supported by

reasonable suspicion?” (Appellant’s Brief, at 3).

             Our standard of review in addressing a challenge to the
       denial of a suppression motion is limited to determining whether
       the suppression court’s factual findings are supported by the
       record and whether the legal conclusions drawn from those facts
       are correct. Because the Commonwealth prevailed before the
       suppression court, we may consider only the evidence of the
       Commonwealth and so much of the evidence for the defense as
       remains uncontradicted when read in the context of the record
       as a whole. Where the suppression court’s factual findings are
       supported by the record, we are bound by these findings and
       may reverse only if the court’s legal conclusions are erroneous.
       Where . . . the appeal of the determination of the suppression
       court turns on allegations of legal error, the suppression court’s
       legal conclusions are not binding on an appellate court, whose
       duty it is to determine if the suppression court properly applied
       the law to the facts. Thus, the conclusions of law of the courts
       below are subject to our plenary review.

____________________________________________


5
  Pursuant to the CCP’s order, Appellant filed a timely concise statement of
errors complained of on appeal on June 4, 2015. See Pa.R.A.P. 1925(b).
The court entered an opinion on June 24, 2015, in which it stated its
determination that Appellant’s issue on appeal is waived. See Pa.R.A.P.
1925(a); (see also Trial Court Opinion, 6/24/15, at 6).



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Commonwealth v. Best, 120 A.3d 329, 346 (Pa. Super. 2015) (citations

omitted).

      Before we may address the merits of Appellant’s claim, we must

determine whether he has properly preserved it for appellate review.      For

the following reasons, we agree with the CCP that he has not. (See Trial Ct.

Op., at 3, 6).

            An appellant convicted in Philadelphia’s Municipal Court
      has two appellate options.

                   Pennsylvania Rule of Criminal Procedure
            1006(1)(a) provides that a defendant convicted in
            Philadelphia Municipal Court has the right to request
            either a trial de novo or file a petition for a writ of
            certiorari with the Philadelphia Court of Common
            Pleas. This Court has held that when a defendant
            files a petition for a writ of certiorari, the Philadelphia
            Court of Common Pleas sits as an appellate court.

      Commonwealth v. Coleman, 19 A.3d 1111, 1118–19 (Pa.
      Super. 2011) (citations omitted). “A trial de novo gives the
      defendant a new trial without reference to the Municipal
      Court record; a petition for writ of certiorari asks the Common
      Pleas Court to review the record made in the Municipal Court.”
      Commonwealth v. Menezes, 871 A.2d 204, 207 n.2 (Pa.
      Super. 2005). These options are mutually exclusive.
      Pa.R.Crim.P. 1008(A) (“The notice [of appeal from a Municipal
      Court ruling] shall state which method of review is being sought
      in the court of common pleas by indicating whether it is a notice
      of appeal or notice of a petition for a writ of certiorari.”).

Commonwealth v. Beaufort, 112 A.3d 1267, 1269 (Pa. Super. 2015)

(emphasis added).

      “A trial de novo is generally limited to a relitigation of guilt or

innocence only,” and a defendant is not entitled to relitigate pre-trial


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motions. Commonwealth v. Douglass, 701 A.2d 1376, 1379 (Pa. Super.

1997) (citation omitted). Therefore, “a defendant [can] not relitigate at the

trial de novo issues raised, or which could have been raised, at the Municipal

Court suppression hearing.”    Commonwealth v. Dobson, 405 A.2d 910,

914 (Pa. 1979).

      This bar on relitigation of pre-trial suppression motions at trials de

novo is codified in Philadelphia Court Criminal Division Rule 630(G), which

provides:

      Unless specially allowed in accordance with subsection (d) of this
      Rule, the trial de novo shall not include relitigation of the
      application to suppress. A defendant may seek a review of the
      record of the suppression hearing heard on the day set for
      Municipal Court trial as part of a Writ of Certiorari.

Phila. Co. Crim. Div. Rule 630(G).

      Here, instead of petitioning for a writ of certiorari following his

Municipal Court conviction, which would have permitted CCP review of the

suppression motion, Appellant pursued a trial de novo, thereby precluding

relitigation of the suppression issue at trial.   See id.; see also Dobson,

supra at 914; Douglass, supra at 1379. However, as the CCP explained,

Appellant was not deprived entirely of a means of trial court review of his

suppression motion by seeking a trial de novo. (See Trial Ct. Op., at 5-6).

Specifically, Philadelphia Court Criminal Division Rule 630(H) provides a

mechanism for such review after the trial de novo. The rule states:

      In the event a defendant is convicted after appeal and trial de
      novo in the Common Pleas Court, a defendant may raise in an


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         application for a Motion for a New Trial the admissibility of the
         evidence introduced at trial. If the evidence so challenged
         was the subject of an application to suppress heard prior
         to Municipal Court trial, the Court shall review the
         transcript and decision of the suppression hearing as part
         of the Common Pleas Court record.

Phila. Co. Crim. Div. Rule 630(H) (emphasis added).

         Therefore, in the instant case, following his trial de novo and

conviction in the CCP, Appellant could have sought the CCP’s review of the

Municipal Court’s suppression ruling by filing a motion for a new trial. See

id. However, because Appellant did not file a motion for a new trial, the CCP

never “review[ed] the transcript and decision of the suppression hearing as

part of the Common Pleas Court record.” Id. Thus, there is no record on

the suppression issue in the CCP for this Court to review.

         Based on the foregoing, in light of Appellant’s failure to adhere to

procedural rules regarding pre-trial suppression motions and the consequent

absence of a record and determination on the suppression issue in the CCP,

we conclude that Appellant has failed to preserve his suppression claim for

appellate review.     Accordingly, because Appellant waived his sole issue on

appeal, we affirm the judgment of sentence.

         Judgment of sentence affirmed.

         Judge Lazarus joins the Memorandum.

         Judge Bowes files a Concurring Memorandum in which Judge Lazarus

joins.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2016




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