J-S61025-17


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2992 EDA 2016
    KIRK GOLDING

                     Appeal from the Order August 24, 2016
    in the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0004684-2016


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

MEMORANDUM BY RANSOM, J.:                            FILED FEBRUARY 20, 2018

       The Commonwealth of Pennsylvania appeals from the August 24, 2016

order granting Appellee’s motion to suppress physical evidence.1 We affirm.

       We derive the following statement of facts and procedure underlying the

charges against Appellee, Kirk Golding, from the Court of Common Pleas

opinion.

             [In June 2015, Appellee] was stopped by State Trooper
       Nicholas Borrelli on suspicion of [driving under the influence
       (“DUI”)] and read the following chemical testing warning:

              1. You are under arrest for driving under the influence of
                 alcohol or controlled substance in violation of Section
                 [3]802 of the Vehicle Code;
____________________________________________


1
  We note that the instant appeal is properly before this Court as the
Commonwealth may take an interlocutory appeal as of right from a pretrial
suppression order when the Commonwealth certifies that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
Commonwealth v. Knoeppel, 788 A.2d 404, (Pa. Super. 2001), reargument
denied, appeal denied, 806 A.2d 859, 569.


* Retired Senior Judge assigned to the Superior Court.
J-S61025-17



              2. I am requesting that you submit to a chemical testing of
                 blood. If you refuse to submit to the chemical test, your
                 operating privileges will be suspended for at least
                 [twelve] months. If you previously refused a chemical
                 test or were previously convicted of driving under the
                 influence, you will be suspended for [eighteen] months.
                 In addition, if you refuse to submit to the chemical test
                 and you are convicted of violating Section 3802(A)(1)
                 relating to impaired driving of the Vehicle Code, then
                 because of your refusal, you will be subject to more
                 severe penalties set forth in 3804(C) relating to
                 penalties of the Vehicle Code. These are the same
                 penalties that would be imposed if you were convicted of
                 driving with the highest rate of alcohol which include a
                 minimum of seventy-two [] consecutive hours in jail and
                 a maximum fine of $10,000[.]

       [Notes of Testimony (N.T.),] 8/24/2016[,] at 9-11 (emphasis added).[]
       After receiving this information, [Appellee] complied with the blood
       draw, blood was in fact taken from [Appellee], and sent to be analyzed
       by a drug laboratory. Id. at 11. [In December 2015, Appellee] filed
       and litigated a motion to suppress in [Philadelphia] Municipal Court that
       did not challenge implied consent law, i.e., deeming it constitutionally
       valid to require motorists to submit to a blood draw by virtue of enjoying
       his/her driving privilege without a warrant. Id. at 2.[2] Thereafter,
       [Appellee] was convicted at trial in Municipal Court and [in May 2015],
       subsequently filed an appeal for a trial de novo in the [Philadelphia]
       Court of Common Pleas under Pennsylvania Rule[] of Criminal Procedure
       1006(1)(a). Id. [In June 2016, the Supreme Court of the United States
       decided Birchfield v. North Dakota, 136 S. Ct. 2160 (2016), which
       held that a state may not impose criminal penalties on the refusal to
       submit to a warrantless blood test.[3] Appellee filed an omnibus pretrial
       motion asserting, among other things, that physical evidence should be
       suppressed as it was obtained in violation of Appellee’s constitutional
       rights and his consent was involuntary.] During [Appellee’s] trial de

____________________________________________


2
   The Municipal Court record was not included in the certified record
transmitted to this Court on appeal.

3
  The U.S. Supreme Court’s decision was premised on a conclusion that blood
tests taken pursuant to certain implied consent laws are an unconstitutional
invasion of privacy. Birchfield 136 S. Ct. at 2178.

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J-S61025-17


       novo before this Court [in August 2016], counsel for [Appellee] timely
       filed and litigated a motion to suppress the results of the blood draw
       pursuant to Birchfield[. (N.T.), 8/24/2016, at 2-3. Counsel for
       Appellee cited Pennsylvania Rule of Criminal Procedure 581 to assert
       that the de novo court could properly hear a motion to suppress where
       the opportunity did not previously exist or the interests of justice so
       require.]

Trial Court Opinion, 12/20/2016, at 2-3.         After hearing the arguments of

Appellee and the Commonwealth, the Court of Common Pleas sitting as a de

novo court, granted Appellee’s motion to suppress the blood draw evidence,

noting:

       Based upon Birchfield, this is a new area and … [i]t says right
       here, motorists cannot be deemed to have consented to submit to
       a blood test on pain on committing a criminal offense. It goes on
       to say voluntariness of the consent must be dealt with in the
       totality of the circumstances and the circumstances [here] being
       the O’Connell warnings[4] which were read which indeed does
       advise individuals of additional criminal penalties under
       Birchfield. I’m granting the motion.

N.T., 8/24/2016, at 7-8.

       Additionally, the following stipulated evidence was entered into the

record: (1) that Appellee was read the aforementioned chemical testing

warnings by Trooper Borrelli pursuant to arrest, (2) an affidavit signed by

Appellee and Trooper Borrelli which documented that Appellee was read the


____________________________________________


4
  “O'Connell warnings are the standard advisement of the requirements of
Pennsylvania's implied consent law and the consequences of refusal to submit
to a requested chemical test.” Commonwealth v. Myers, 164 A.3d 1162
n.3 (Pa. 2017) (citing Commonwealth, Department of Transportation,
Bureau of Traffic Safety v. O'Connell, 555 A.2d 873 (Pa. 1989)); see also
Pa. Dep't of Transp., Bureau of Driver Licensing v. Weaver, 912 A.2d
259 (Pa. 2006).


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J-S61025-17



warnings, (3) the property receipt of Appellee’s blood, and (4) that Appellee’s

blood was sent to a laboratory for analysis and was indeed analyzed. N.T.,

8/24/2016, at 9-11.

       In September 2016, the Commonwealth contemporaneously filed a

notice of appeal and a Pa.R.A.P. 1925(b) statement. In December 2016, the

court issued a responsive opinion.

       On appeal, the Commonwealth raises the following issues for our

review:

       1. After [Appellee] appealed the denial of his motion to suppress
          his admission that he had smoked marijuana prior to driving,
          did the Common Pleas Court, sitting as an appellate court,[5]
          err in allowing him to present a second motion to suppress,
          raising a waived claim that his consent to chemical testing was
          coerced?

       2. Did the lower court err in granting [Appellee’s] barred and
          waived second suppression claim without conducting a
          hearing?

Commonwealth’s Brief at 4.

       “Once a motion to suppress evidence has been filed, it is the

Commonwealth's burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant's

rights.” Commonwealth v. Evans, 153 A.3d 323, 327 (Pa. 2016) (citing

____________________________________________


5
  Although Appellee exercised his option to appeal de novo to the Court of
Common Pleas, we reject the Commonwealth’s characterization that the Court
of Common Pleas was “sitting as an appellate court” in conducting a trial de
novo. The distinct functions of the Court of Common Pleas following an appeal
from the Municipal Court are discussed herein.

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J-S61025-17


Commonwealth v. Wallace, 42 A.3d 1040, 1047–48 (Pa. 2012) (en banc)).

Where the court grants a suppression motion, we consider only the

defendant's evidence and the Commonwealth's evidence that “remains

uncontradicted when read in the context of the record as a whole.”

Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013). When

reviewing the propriety of a suppression order, we are required to determine

whether the record supports the suppression court's factual findings and

whether the inferences and legal conclusions drawn by the suppression court

from those findings are appropriate. Commonwealth v. Peterson, 17 A.3d

935, 937 (Pa. Super. 2011) (citing Commonwealth v. Moyer, 954 A.2d 659,

663 (Pa. Super. 2008)). Where the record supports the factual findings of the

suppression court, we are bound by those facts and may reverse only if the

legal conclusions drawn therefrom are in error. Id.

     The Commonwealth’s first issue is two-pronged. The Commonwealth

argues that (1) it was procedurally improper for the Court of Common Pleas

to consider Appellee’s suppression motion at trial de novo, and (2) that

Appellee’s argument was waived for his failure to raise the issue before the

Philadelphia Municipal Court.   Commonwealth’s Brief at 10-20.       For the

following reasons, we conclude that the de novo court properly entertained

Appellee’s suppression motion, as the interests of justice so required.

Additionally, we conclude that Appellee’s suppression argument was not

waived.


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      As an initial matter, we note that the de novo court relied on the

“interests of justice” exception recognized in Pennsylvania Rule of Criminal

Procedure 581(B) to justify its authority to hear Appellee’s motion. Rule 581

governs the suppression of evidence in a court case and provides two

exceptions to waiver of a motion to suppress evidence:

      (A)     The    defendant's    attorney, or  the   defendant      if
              unrepresented, may make a motion to the court to suppress
              any evidence 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.

Pa.R.Crim.P. 581 (A)-(B) (formerly Rule 323; renumbered as Rule 581

effective 2001) (emphasis added).         “Whether ‘the opportunity did not

previously exist, or the interests of justice otherwise require ...’ is a matter

for the discretion of the trial judge.” Commonwealth v. Williams, 323 A.2d

862, 864 (Pa. Super. 1974) (citing Commonwealth v. Pinno, 248 A.2d 26,

29 (1968)).

      Recently this Court held that a de novo court may rely on either

Pa.R.Crim.P. 581(B) or Philadelphia Court Criminal Division Rule 630 to

entertain an untimely motion to suppress, where the “interest of justice”

exception, as found in either rule, is met. Commonwealth v. Torres, ___

A.3d ___, 2017 Pa. Super. 381 (filed December 8, 2017) (recognizing that as

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J-S61025-17


the interests of justice exception is present in both Pa.R.Crim.P. 581(B) and

Rule 630, the analysis under the statewide rule versus the local rule is the

same because the language is identical).

      Similar to Pa.R.Crim.P. 581(B), Philadelphia Court Criminal Division Rule

630 specifically includes an “interests of justice” exception:

      (C) Unless the interests of justice otherwise require, failure to
      make a timely application prior to or at Municipal Court trial shall
      be deemed to be a waiver of the issue of the admissibility of such
      evidence at any subsequent trial.

Phila.Co.Crim.Div. Rule 630(C); Commonwealth v. Johnson, 146 A.3d

1271, 1275 (Pa. Super. 2016) (explaining interaction of Pennsylvania rules

and supplemental local Philadelphia rules), appeal denied, 158 A.3d 1242 (Pa.

2016); Commonwealth v. Williams, 125 A.3d 425, 428 (Pa. Super. 2015)

(repeating the general rule that, “although the local courts have broad

authority to promulgate local rules of procedure, local rules shall not be

inconsistent with any general rule of the Supreme Court or any Act of

Assembly.”).    The plain language of Section (C) permits a defendant to

untimely seek the suppression of evidence, at any subsequent trial, where the

interests of justice require.

      The phrase the “interests of justice” has been interpreted in the context

of Pa.R.Crim.P. 581(B) and its predecessors. The interests of justice exception

is properly invoked where (1) an untimely motion is premised upon significant,

new grounds that implicate the fundamental fairness of the proceedings and

(2) its merit is readily apparent. As our Supreme Court explained:

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J-S61025-17


      The ‘interests of justice’ exception to rule 323(b) [later
      renumbered 581(B)] was borrowed from its predecessor,
      Pa.R.Crim.P. 2001(b), and is designed to grant a trial judge the
      discretion to excuse a failure to file a pre-trial motion. Pinno, 248
      A.2d at 29. It has been said that such discretion should be
      exercised where ‘the merits of counsel's oral motion were so
      apparent that justice required that it be heard.’ Williams, 323
      A.2d at 866.

Commonwealth v. Hubbard, 372 A.2d 687, 692–93 (Pa. 1977) (some

formatting added) (overruled on other grounds by Commonwealth v. Grant,

813 A.2d 726 (Pa. 2002)); see also Commonwealth v. Long, 753 A.2d 272,

280 (Pa. Super. 2000) (concluding the trial court did not abuse its discretion

in considering defendant’s untimely suppression motion where defendant had

significant new grounds to contend that there was a lack of reasonable

suspicion by the officer and circumstances suggested that defendant’s motion

had “apparent merit”). “This concept of ‘in the interest of justice’ is merely a

recognition of the trial court's discretionary power to ensure the fairness of

the proceedings during the adjudicatory stage.” Commonwealth v. Powell,

590 A.2d 1240, 1243 (Pa. 1991).

      Here, the Court of Common Pleas properly invoked the exception, as (1)

Birchfield, decided while Appellee’s trial de novo was pending, implicated the

fundamental fairness of that proceeding, and (2) the Commonwealth’s

stipulation that the arresting officer conveyed O’Connell warnings to Appellee

evidenced apparent merit to Appellee’s motion to dismiss.

      Recent   precedent   from   the   United   States   Supreme    Court    has

precipitated a seismic shift in our implied consent jurisprudence.             In



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J-S61025-17



Birchfield, the United States Supreme Court recognized that “[t]here must

be a limit to the consequences to which motorists may be deemed to have

consented by virtue of a decision to drive on public roads.” Birchfield, 136

S. Ct. at 2185.   Of particular significance, Birchfield held that “motorists

cannot be deemed to have consented to submit to a blood test on pain of

committing a criminal offense.”    Id. at 2186.   Accordingly, this Court has

recognized that Pennsylvania’s implied consent scheme, as codified at 75

Pa.C.S. § 1547, was unconstitutional insofar as it threatened to impose

enhanced criminal penalties for the refusal to submit to a blood test.

Commonwealth v. Ennels, 167 A.3d 716, 724 (Pa. Super. 2017) (noting

that “implied consent to a blood test cannot lawfully be based on the threat of

such enhanced penalties”); Commonwealth v. Evans, 153 A.3d 323, 330-

31 (Pa. Super. 2016).    In tandem, the O’Connell warnings, which recited

enhanced criminal penalties as a consequence of refusing a blood draw under

Pennsylvania’s implied consent law, were rendered presumptively coercive in

nature.   See Commonwealth v. Kurtz, --- A.3d --- (Pa. Super. 2017)

(recognizing “[c]onsent must at least be freely given to be effective.    This

means there must be a total absence of duress or coercion, express or

implied.”) (citing Commonwealth v. Harris, 239 A.2d 290, 293 (Pa. 1968));

see also Ennels, 167 A.3d at 718–19, 722 (affirming the suppression of a

blood test based on the finding that the defendant was informed he could

receive enhanced penalties if he refused the test).




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      We reject the Commonwealth’s baseless assertion that Birchfield did

“not create an intervening change in the law[,]” as this conclusion is belied by

the bevy of case law promulgated by this Commonwealth in Birchfield’s

wake. Commonwealth’s Brief at 12, 21-23; see Commonwealth v. Haines,

168 A.3d 321 (Pa. Super. 2017); Commonwealth v. Grays, 167 A.3d 793

(Pa. Super. 2017); Commonwealth v. Myers, 164 A.3d 1162 (Pa. 2017);

Ennels, 167 A.3d 716 (Pa. Super. 2017); Commonwealth v. Giron, 155

A.3d 635 (Pa. Super. 2017); Evans, 153 A.3d 323.

      We now address the apparent merit of Appellee’s motion at his

subsequent trial de novo.      Appellee’s counsel sufficiently demonstrated

through argument that the interests of justice required the motion to suppress

be heard. When Appellee had the opportunity to argue a suppression motion

before the Municipal Court, the law of implied consent was well-settled in this

Commonwealth. Birchfield was decided after Appellee's Municipal Court trial

and sentencing, but prior to the start of his trial de novo. Our review of the

record reveals that all of the facts are uncontradicted, as the Commonwealth

and Appellee’s counsel stipulated that (1) Appellee was read O’Connell

warnings by Trooper Borrelli pursuant to arrest, (2) Appellee and Trooper

Borrelli signed an affidavit documenting that Appellee was read the warnings,

(3) Appellee’s blood was taken and placed on a property receipt, and (4) that

Appellee’s blood was sent to a laboratory for analysis and was indeed

analyzed.   N.T., 8/24/2016 at 9-11.      Accordingly, Appellee’s suppression

motion had apparent merit, and we discern no abuse of discretion in the de

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J-S61025-17



novo court’s decision to consider same in the interests of justice. Torres, at

3-4.

       The Commonwealth contends in its second prong that Appellee’s

Birchfield claim at the Court of Common Pleas was waived, as the claim was

not raised in the lower court, here, the Philadelphia Municipal Court.

Commonwealth’s Reply Brief at 3-5, see also Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time on

appeal.”).   Specifically, the Commonwealth notes that “even constitutional

claims may be waived if not raised in the lower court.” Commonwealth’s Reply

Brief at 3-5. The Commonwealth correctly observes that “in order for a new

rule of law to apply retroactively to a case pending on direct appeal, the issue

had to be preserved at ‘all stages of adjudication up to and including the direct

appeal.’” Commonwealth v. Tilley, 780 A.2d 649, 652 (Pa. 2001) (quoting

Commonwealth v. Cabeza, 469 A.2d 146, 148 (Pa. 1983)).               Verily, this

Court has previously observed that “[t]he waiver rule applies with equal force

to the Philadelphia Municipal Court.” Commonwealth v. Douglass, 701 A.2d

1376, 1379 (Pa. Super. 1997) (citing Commonwealth v. Dennis, 695 A.2d

409, 411 (Pa. 1997)).

       Further, we recognize that our Supreme Court has held that a

defendant's constitutional right to a trial de novo in the Court of Common

Pleas does not generally include relitigation of pre-trial motions to suppress

conducted in the Philadelphia Municipal Court. Commonwealth v.Harmon,

366 A.2d 895, 899 (Pa. 1976). Noting that the option for Municipal Court

                                     - 11 -
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defendants to appeal for a trial de novo was instituted to avoid conflict with

the constitutional right of trial by jury, the Harmon Court observed that:

       automatic relitigation of the pre-trial suppression decision serves
       no useful purpose and would unnecessarily further encumber a
       procedure which was intended to expedite and not delay the
       disposition of the case load before our courts.

Harmon, 366 A.2d at 899 (emphasis added).

       For these reasons, Appellee’s motion, based on a new rule of law and

raised for the first time on appeal, would ordinarily result in waiver. Yet, as

in Torres, we decline to find waiver here in light of the interest of justice

exceptions present in Pa.R.Crim.P. 581(B) and Rule 630 equally applicable to

a defendant seeking trial de novo. Torres, at 3 n. 5. Here, the de novo court

expressly granted Appellee’s motion in the interests of justice. See Trial Court

Opinion, 12/20/2016, at 7-9.

       In the instant case, the stipulated evidence entered into the record

supports the de novo court's factual findings and the legal conclusions drawn

therefrom. The de novo court found that Appellee was read impermissible

O’Connell warnings before he consented to the blood draw, and the court

concluded his consent was thereby coerced under the totality of the

circumstances. Trial Court Opinion, 12/20/2016, at 2-3. These observations

are supported by the record and are consistent with Birchfield.6 See Ennels,

____________________________________________


6
  Additionally, this Court held in Ennels that the Birchfield prohibition on
warrantless blood draws for persons driving under the influence applies with
equal force to individuals suspected of DUI of controlled substances. Ennels,
167 A.3d at 721-24.

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167 A.3d 716. By raising his constitutional claim based on an intervening

change in the law at the earliest possible moment, Appellee developed the

record before the de novo court to facilitate this Court’s meaningful evaluation

on appellate review. For these reasons, we decline to find waiver.

       In its second issue, the Commonwealth asserts that the de novo court

erred in granting Appellee’s suppression claim without conducting a hearing.

Commonwealth’s Brief at 8, 23-24. We note first that a hearing did, in fact,

take place and note secondly that this issue was not raised before the de novo

court and is therefore waived. See Pa.R.A.P. 302(a).7

       In connection with the motion to suppress, the de novo court held a

hearing wherein it placed in effect sequestration for any potential witnesses,

solicited argument from Appellee and the Commonwealth, and entered

exhibits into the record.       Two discussions were held on the record about

whether to call witnesses for the hearing or to rely strictly on the exhibits as


____________________________________________


7
  Appellee, in his brief, argues in the alternative that the Commonwealth
waived its claim for failure to include same in its voluntary Pa.R.A.P. 1925(b)
statement. See Appellee’s Brief at 19-20; Pa.R.A.P. 1925(b)(4)(viii). The
Commonwealth offers in rebuttal that where no 1925(b) statement is ordered,
an omission of a claim from a voluntary 1925(b) statement does not constitute
waiver. Commonwealth’s Reply Brief at 7-8. Because the Commonwealth’s
claim is waived for failure to raise it before the de novo court, we need not
address this argument. Nevertheless, we note that the Commonwealth’s
argument is not persuasive. See Commonwealth v. Nobles, 941 A.2d 50,
51–52 (Pa. Super. 2008) (finding that where the court does not order an
appellant to file a 1925(b) statement and the appellant sua sponte files a
1925(b) statement, she is limited on appeal to raising only those issues she
presented in her voluntary Rule 1925(b) statement).

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evidence; however, the Commonwealth did not call witnesses.           See N.T.,

8/24/2016 at 5-6. Additionally, the Commonwealth stipulated to all of the

aforementioned evidence entered as part of the suppression motion and at no

time took exception to the nature of the hearing proceedings.         It was the

Commonwealth’s      burden   to   show   that   the   Appellee’s   consent   was

constitutional, and the Commonwealth made no attempt to meet its burden.

Evans, 153 A.3d at 327. The Commonwealth, therefore, is precluded from

insisting in hindsight that it should have been afforded the opportunity to put

on additional evidence. Pa.R.A.P. 302(a).

      Accordingly, we discern no error in the legal conclusions by the de novo

court and discern no abuse of discretion in the court’s decision to hear

Appellee’s untimely suppression motion in the interests of justice.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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