J-S29007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CLIFTON BODDIE

                            Appellant                  No. 127 EDA 2016


           Appeal from the Judgment of Sentence December 16, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013368-2014


BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY LAZARUS, J.:                           FILED MAY 05, 2017

        Clifton Boddie appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, after a jury found him guilty

of driving under the influence (“DUI”) and numerous other offenses related

to a hit-and-run. Because Boddie has waived his sole issue on appeal, we

affirm.

        The trial court summarized the relevant facts as follows:

        [A]s Officer Brian Graves traveled north on the 3100 block of
        North 22nd Street, he saw a black [Chevy] Tahoe traveling south
        on the same road with heavy front end damage, smoke coming
        out of the vehicle, and liquid coming from underneath. Officer
        Graves then followed the Tahoe to a gas station and walked up
        to the vehicle to see [Boddie] in the driver’s seat. The officer
        asked [Boddie] if he was okay and if he knew that his car was
        leaking. [Boddie] replied he was okay and that he did not know
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      his car was leaking. At this time, Officer Graves smelled alcohol
      from [Boddie’s] person and noticed his slurred speech. He also
      observed a case or a six-pack of beer and some opened beer
      sitting on the floor and on the seat of [Boddie’s] vehicle. The
      officer then took [Boddie] outside the vehicle and placed him in
      the back of his patrol car.

Trial Court Opinion, 8/9/16, at 2 (citations to record omitted).

      Boddie moved to suppress the blood drawn after his arrest, as well as

any statements he may have made to police. In arguing his motion, Boddie

asserted that the police did not have probable cause to arrest him and

focused his argument on Officer Graves’ observations after Boddie had been

stopped.     The court denied the motion.     A jury subsequently convicted

Boddie and the court sentenced him to an aggregate of two to four years’

incarceration, followed by one year of probation.     Boddie filed a notice of

appeal to this Court followed by a court-ordered statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), in which he raised

the following claim:   “The [c]ourt erred in denying [Boddie’s] motion to

suppress.”     In response, in its Rule 1925(a) opinion, the trial court

addressed the specific argument Boddie raised in his suppression motion,

i.e., whether Officer Graves had probable cause to arrest him.

      On appeal, Boddie raises the following claim:      “Did the suppression

court err in denying the motion to suppress?”        Brief of Appellant, at 3.

However, unlike in the trial court, Boddie now focuses his argument on the

legality of Officer Graves’ stop of his vehicle, rather than whether Officer

Graves possessed probable cause to arrest him.



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      “[A]ppellate review of an order denying suppression is limited to

examination of the precise basis under which suppression initially was

sought;   no    new   theories   of   relief   may   be   considered   on   appeal.”

Commonwealth v. Freeman, 128 A.3d 1231, 1241 (Pa. Super. 2015),

quoting Commonwealth v. Little, 903 A.2d 1269, 1272–73 (Pa. Super.

2006).    “When a defendant raises a suppression claim to the trial court and

supports that claim with a particular argument or arguments, the defendant

cannot then raise for the first time on appeal different arguments supporting

suppression.”    Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super.

2006). A theory of error different from that presented to the trial court is

waived on appeal, even if both theories support the same basic allegation of

error which gives rise to the claim for relief. Commonwealth v. Gordon,

528 A.2d 631, 638 (Pa. Super. 1987).

      Here, Boddie argued before the suppression court that Officer Graves’

post-stop observations did not support a finding of probable cause to arrest

him. See N.T. Suppression Hearing, 8/27/15, at 57-61. On appeal, Boddie

now asserts that Officer Graves possessed neither reasonable suspicion nor

probable cause to stop his vehicle. Because Boddie failed to argue the latter

theory before the trial court, he may not now raise it on appeal.

Accordingly, his sole appellate claim is waived.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2017




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