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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