J-A10023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    CLARK L. LINABERRY                         :   No. 2188 EDA 2019

                 Appeal from the Order Entered June 28, 2019
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001424-2018


BEFORE:      BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 31, 2020

        Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals the June 28, 2019 order granting the pretrial motion to suppress

physical evidence filed by Clark L. Linaberry (“Appellee”). After review, we

affirm.

        The trial court summarized the relevant facts of this matter as follows:

        On November 29, 2017 at approximately 4:53 P.M., Trooper
        Zachary Muzzey drove through the parking lot of a Days Inn on
        patrol in the Marshalls Creek area of Monroe County. (N.T.,
        Omnibus. at 5.) He had been there multiple times before and
        uncovered drug sales, drug use, firearms violations, and other
        criminal activity. (N.T., Omnibus, at 6.) He saw [Appellee]
        standing at the door to one of the rooms, 75 yards away. Trooper
        Muzzey observed something appear to move between the hands
        of [Appellee] and another person inside, whom he could not see.
        (N.T., Omnibus, at 6-7, 16.) He did not know what they

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A10023-20


       exchanged, or if they exchanged anything at all, and could not see
       into the room. (N.T., Omnibus, at 7, 16-17.)

              Trooper Muzzey parked his car and was walking toward the
       motel-room door when [Appellee] drove past him with his window
       down. He smelled the odor of burnt marijuana coming from
       [Appellee’s] car and asked him what business he had at the hotel.
       [Appellee] explained that he had a credit card belonging to
       someone who stayed at the hotel, which he was trying to return.
       Based on the odor of marijuana and [Appellee’s] erratic speech,
       Trooper Muzzey requested that [Appellee] exit his car. (N.T.,
       Omnibus, at 7-9.) With [Appellee] now standing outside his car,
       Trooper Muzzey performed a Terry[1] frisk, searching the outside
       of his clothing for weapons by feel. (N.T., Omnibus, at 9, 11.) He
       knew this hotel had seen drug activity before, and believes as a
       general matter that persons involved in drug activity frequently
       arm themselves for protection. (N.T., Omnibus, at 11.) During the
       frisk, he felt a pack of cigarettes in [Appellee’s] pocket. (N.T.,
       Omnibus, at 9.) He asked if [Appellee] would open the pack and
       show him the inside. [Appellee] did not verbally respond but
       complied, opening it, letting Trooper Muzzey see a small,
       transparent bag holding white powder. [Appellee] then snapped it
       closed. (N.T., Omnibus, at 9-11.) The trooper seized the cigarette
       container and later identified the unknown substance as crack
       cocaine. (N.T., Omnibus, at 11.)

              Trooper Muzzey cuffed and detained [Appellee] in his patrol
       car after reading the Miranda2 rights. In a search of [Appellee’s]
       vehicle, the trooper located a glass pipe with the residue of burnt
       marijuana and cocaine. (N.T., Omnibus, at 12.) On [Appellee’s]
       person, Trooper Muzzey also found a piece of wax paper folded
       into a shape commonly used to store an individual dose of heroin.
       (N.T., Omnibus, at 12.) This piece of wax paper allegedly bears
       the stamp “Best of the Best.” (Affidavit of Probable Cause,
       2/16/18, attached to Criminal Complaint, at 5.)
____________________________________________


1 Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court of the
United States held that a police officer may stop and temporarily detain a
citizen when there are specific and articulable facts causing the officer to have
a reasonable suspicion that criminal activity is afoot. Id. at 21, 30. If the
officer reasonably believes that he or she may be in danger, the officer may
conduct a limited pat-down search of the suspect for weapons. Id. at 29-30.


                                           -2-
J-A10023-20



           2   Miranda v. [Arizona, 384 U.S. 436 (1966)].

           On July 23, 2018, the Commonwealth filed an Information
     charging [Appellee] with Possession of a Controlled Substance and
     two counts of Possession of Drug Paraphernalia.3 By that date, the
     magistrate had held a preliminary hearing, on June 20, 2018, after
     which the charges were bound over to this [c]ourt. Following
     arraignment, [Appellee] pled not guilty. …

           3 35 [P.S.] § 780-113 ([a])(16) [and] ([a])(32),
           respectively. The Information does not provide the
           factual basis for the separate paraphernalia charges.
           From the facts alleged in the Affidavit of Probable
           Cause, however, we can assume that one count
           charges [Appellee] for possessing the glass pipe,
           while the second corresponds to the piece of folded
           wax paper allegedly used to hold a quantity of heroin.

Trial Court Opinion and Order, 6/28/19, at 2-3.

     Appellee filed his omnibus pretrial motion on August 8, 2018, which

included a motion to suppress evidence. On August 9, 2018, the trial court

scheduled a hearing on Appellee’s motion for October 15, 2018.      Appellee

failed to appear at this hearing, and the trial court dismissed Appellee’s

omnibus motion.     Order, 10/15/18.   On October 22, 2018, the trial court

scheduled a pretrial conference for November 21, 2018. Appellee failed to

appear at the conference, and the trial court issued a warrant for Appellee’s

arrest. Bench Warrant, 11/26/18.

     On December 5, 2018, Appellee was apprehended in Northampton

County. Sheriff’s Service Affidavit of Return, 1/25/19. On January 16, 2019,

the bench warrant was dissolved, and the trial court scheduled a pretrial

conference to be held on February 20, 2019. The pretrial conference was

                                     -3-
J-A10023-20


rescheduled for March 6, 2019.    Order, 2/21/19.   In the interim, Appellee

moved to reinstate his suppression motion, and the trial court granted the

motion. Order, 3/6/19. The trial court held a hearing on the suppression

motion on April 15, 2019, and on June 28, 2019, the trial court granted

Appellee’s motion to suppress. On July 26, 2019, the Commonwealth filed a

timely appeal and a Pa.R.A.P. 311(D) certification stating that the June 28,

2019 order would terminate or substantially handicap the prosecution. Both

the Commonwealth and the trial court complied with Pa.R.A.P. 1925.

     Prior to reaching the merits of the issues the Commonwealth raised, we

address whether the March 7, 2019 order reinstating Appellee’s omnibus

motion is properly before our Court. Appellee asserts that the Commonwealth

did not appeal the March 7, 2019 order or specifically certify that the

reinstatement would terminate or substantially handicap the prosecution

pursuant to Rule 311(D). Appellee’s Brief at 6-7.

     We conclude that the March 7, 2019 order was interlocutory; it did not

put the Commonwealth out of court and did not dispose of all claims and

parties. Pa.R.A.P. 341(b); see generally Commonwealth v. Grove, 170

A.3d 1127, 1137 (Pa. Super. 2017) (noting that the Superior Court has

jurisdiction of “appeals from final orders of the courts of common pleas”)

(quoting 42 Pa.C.S. § 742). As mentioned above, Pa.R.A.P. 311(D) permits

the Commonwealth to appeal an interlocutory pretrial order when the

Commonwealth certifies that the order terminates or substantially handicaps


                                    -4-
J-A10023-20


the prosecution. The March 7, 2019 order did not terminate or handicap the

prosecution; it merely reinstated a pretrial motion. There was no ruling on

the underlying suppression motion at that juncture. Thus, we find that the

Commonwealth could not have certified in good faith that the March 7, 2019

order handicapped the prosecution. Rather, it was not until the trial court

granted Appellee’s motion to suppress on June 28, 2019, that the prosecution

could claim it was handicapped.                Accordingly, we conclude that the

Commonwealth properly presented its challenge to the March 7, 2019 order

in its appeal from the June 28, 2019 order granting Appellee’s motion to

suppress.

       On appeal, the Commonwealth presents the following issues for this

Court’s consideration:

       [1.] Whether the suppression court abused its discretion in
       reinstating Appellee’s motion to suppress when he forfeited the
       right to relitigate his motion through absconding for over four
       months?

       [2.] Whether the suppression court erred as a matter of law in
       concluding the evidence was obtained through a Terry frisk?

Commonwealth’s Brief at 6 (full capitalization omitted).2

       The Commonwealth avers that the trial court abused its discretion in

reinstating Appellee’s motion. Commonwealth’s Brief at 14. Specifically, the

Commonwealth asserts that Appellee forfeited the right to litigate his


____________________________________________


2 For purposes of our discussion, we have renumbered the Commonwealth’s
issues.

                                           -5-
J-A10023-20


suppression motion because he absconded and failed to appear before the

trial court for more than four months. Id. at 14-15.

      Our Supreme Court has explained how a criminal defendant’s status as

a fugitive impacts his procedural rights as follows:

               [A] fugitive who has returned to the jurisdiction of the
      court should be allowed to exercise his post-trial rights in the same
      manner he would have done had he not become a fugitive. If he
      returns in time for post-trial motions, he should be allowed to file
      them. If he returns after the time for post-trial motions has
      expired, his request to file post-trial motions or to reinstate post-
      trial motions should be denied. If he became a fugitive between
      post-trial motions and an appeal and he returns before the time
      for appeal has expired and files an appeal, he should be allowed
      to appeal. If he returns after the time for filing an appeal has
      elapsed, his request to file an appeal should be denied. If he
      becomes a fugitive after an appeal has been filed, his appeal
      should be decided and any fugitive status should be addressed
      separately. In short, a fugitive who returns to court should
      be allowed to take the system of criminal justice as he finds
      it upon his return: if time for filing has elapsed, he may not
      file; if it has not, he may.

Commonwealth v. Deemer, 705 A.2d 827, 829 (Pa. 1997) (emphasis

added). Moreover, it is within the trial court’s discretion to address a motion

filed by an absconder. Id. at 828; see also Commonwealth v. Adams, 200

A.3d 944, 951 (Pa. 2019) (noting that courts have discretion to determine

whether fugitive status warrants forfeiture with respect to appellate rights).

      At the outset, we first conclude that there is no evidence that Appellee

“absconded” or was a “fugitive” simply because he did not attend the omnibus

hearing. Black’s Law Dictionary defines the term “fugitive” as: “1. A person

who flees or escapes; a refugee.      2. A criminal suspect or a witness in a


                                      -6-
J-A10023-20


criminal    case    who     flees,   evades,     or   escapes   arrest,   prosecution,

imprisonment, service of process, or the giving of testimony, esp. by fleeing

the jurisdiction or by hiding.” Black’s Law Dictionary (9th ed. 2009). Black’s

Law Dictionary defines “abscond” as follows: “1. To depart secretly or

suddenly, esp. to avoid arrest, prosecution, or service of process. 2. To leave

a place, usu. hurriedly, with another’s money or property.” Id. Herein, the

record does not reflect an order directing Appellee to appear at the omnibus

hearing, and the trial court did not issue a warrant for Appellee’s arrest when

Appellee did not attend the hearing on his omnibus motion.3 Bearing in mind

the above definitions, although Appellee was absent, we do not conclude that

he absconded or was a fugitive.

       Moreover, when Appellee was arrested and returned to the criminal

justice system, the time in which the trial court could have held a hearing on

the motion had not yet expired.            Pa.R.Crim.P. 581, cmt.     The trial court

explained:

             On October 15, 2018, th[is c]ourt dismissed [Appellee’s]
       Motion after a hearing at which [Appellee] did not appear. We
       reinstated the Motion by Order on March 7, 2019 when [Appellee]
       returned to the [c]ourt on a bench warrant. At that time,
       [Appellee] had been absent for 143 days. We held our hearing on
____________________________________________


3 Conversely, although the trial court did not order Appellee to attend the
omnibus hearing, the trial court did order Appellee, his counsel, and counsel
for the Commonwealth to attend the pretrial conference. Order, 10/22/18. It
was Appellee’s failure to comply with the October 22, 2018 order that led to
the trial court’s issuance of a warrant for Appellee’s arrest. Bench Warrant,
11/26/18.


                                           -7-
J-A10023-20


       the present Motion [on] April 15, 2019, meaning that 182 days
       had passed since the date we dismissed the Motion.

            Here, upon [Appellee’s] return, he had already timely filed
       an Omnibus Motion, and the time for litigating pretrial motions
       had not yet expired. The criminal justice system, in the state he
       found it, was properly situated to rule on the Motion.

             The Rules of Criminal Procedure do not provide for forfeiture
       or estoppel of a defendant’s right to have an Omnibus Motion
       adjudicated, provided he or she has filed it within 30 days
       following arraignment. See Pa. R. Crim. P. 579(a). Additionally,
       the [trial c]ourt must rule on the matter before trial begins, so
       that a fugitive defendant who returns while trial is proceeding in
       absentia has lost that claim to relief. See Pa. R. Crim. P. 581(b).
       But once the defendant has timely filed the Motion, “the hearing
       may be held at any time prior to trial.” Pa. R. Crim. P. 581,
       Comment.

             [Appellee] was arraigned September 8, 2018. He filed his
       Motion that same date, which makes it timely. No trial ha[d]
       begun in [Appellee’s]. Therefore, this [c]ourt obeyed the Rules of
       Criminal Procedure by holding a hearing and issuing a decision at
       “any time prior to trial,” Pa. R. Crim. P. 581; Comment.

Trial Court Pa.R.A.P. 1925(a) Statement, 8/23/19, at 2.

       For the reasons set forth above, even if we concluded that Appellee was

a fugitive when he failed to appear at the hearing on his omnibus motion, the

fact remains that Appellee took the system of criminal justice as he found it

upon his return, and there was no prohibition to Appellee’s litigation of his

timely filed pretrial motion to suppress.        Deemer, 705 A.2d at 829;

Pa.R.Crim.P. 581, cmt.4          After review, we discern no prejudice to the

____________________________________________


4 Additionally, the trial court could have considered Appellee’s motion to
reinstate his suppression motion merely as a motion to reconsider the order



                                           -8-
J-A10023-20


Commonwealth and conclude that there was no abuse of discretion in the trial

court’s reinstatement and consideration of Appellee’s omnibus pretrial motion.

       In its second issue, the Commonwealth avers that the suppression court

committed an error of law in granting Appellee’s motion to suppress.

Commonwealth’s Brief at 12. As noted above, the trial court concluded that

Trooper Muzzey stopped Appellee pursuant to Terry; however, the court

found insufficient evidence to support a Terry stop. Trial Court Opinion and

Order, 6/28/19, at 2, 4-9. Despite the trial court’s conclusion and rationale,

the Commonwealth does not challenge the trial court’s findings relative to

Terry and it progeny. Rather, the Commonwealth asserts that the smell of

marijuana established probable cause supporting a lawful arrest, and the

contraband      was    seized    during        a   search   incident   to   that   arrest.

Commonwealth’s Brief at 13. The Commonwealth also states that Appellee

consented to the search. Id. at 13-14. After review, we conclude that the

Commonwealth is entitled to no relief.




____________________________________________


that initially dismissed the omnibus motion. The order dismissing Appellee’s
omnibus motion was interlocutory, and the trial court retained the authority
to reconsider the order and reach a different result. Commonwealth v.
James, 69 A.3d 180, 186 (Pa. 2013). The trial court was permitted to revisit
the suppression order even beyond the thirty-day period for modifying an
order provided by 42 Pa.C.S. § 5505. James, 69 A.3d at 186. It is well
settled that our Court may affirm the trial court on any basis if the trial court’s
ultimate decision is correct. Commonwealth v. Reese, 31 A.3d 708, 727
(Pa. Super. 2011) (en banc).

                                           -9-
J-A10023-20


      Our standard of review for a Commonwealth appeal from an order

granting suppression is as follows:

            When the Commonwealth appeals from a suppression order,
      we follow a clearly defined standard of review and consider only
      the evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court’s conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.

Commonwealth v. Miller, 56 A.3d 1276, 1278-1279 (Pa. Super. 2012).

      Appellee points out that the Commonwealth’s assertion that the smell

of marijuana could have established probable cause to arrest was not argued

or raised in the trial court. Appellee’s Brief at 5; Commonwealth’s Brief at 13.

Additionally, Appellee notes that the trial court provided the Commonwealth

with two opportunities to file a brief during the litigation of Appellee’s

suppression motion; however, the Commonwealth did not do so. Appellee’s

Brief at 5.

      We conclude that the Commonwealth’s novel issue was not raised before

the trial court, and the Commonwealth may not now raise a new theory in an

attempt to overturn the trial court’s order granting Appellee’s motion to

suppress. See 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.”). Accordingly, the

Commonwealth’s argument that the trooper had probable cause to arrest

Appellee based on the smell of marijuana is waived. See Commonwealth v.


                                      - 10 -
J-A10023-20


Diaz, 191 A.3d 850, 855 (Pa. Super. 2018) (stating that an argument is

waived where the Commonwealth raises it for the first time on appeal).

     Because the Commonwealth abandoned any challenge under Terry, and

because we found its assertion concerning the smell of marijuana was waived,

the Commonwealth’s only remaining issue is an averment that Appellee

voluntarily consented to the search. Commonwealth’s Brief at 13-14. After

review, we disagree.

     The trial court concluded that Appellee’s alleged consent to a search was

invalid. Trial Court Opinion and Order, 6/28/19, at 8-9. The trial court found

that Trooper Muzzey conducted a pat-down search of Appellee pursuant to

Terry, but “when the Terry search occurred, specific and articulable facts did

not support a reasonable suspicion that [Appellee] was armed or dangerous.”

Trial Court Opinion and Order, 6/28/19, at 4. Therefore, because the Trooper

lacked reasonable suspicion that Appellee was armed or dangerous, the

subsequent pat-down was unlawful. Id. The trial court continued:

     As a result, [Appellee could not] have consented to allow a search
     inside his pack of cigarettes when that consent was obtained only
     in the process of performing an unreasonable pat-down. We will
     suppress the package of crack cocaine found in [Appellee’s] pack
     of cigarettes; and we will suppress the paraphernalia found in the
     search of [Appellee’s] car and person after he was placed in
     custody, as “fruit of the poisonous tree.”

                                   * * *

            As the search of [Appellee’s] outer clothing occurred without
     reasonable suspicion that he possessed a weapon at the time, it
     falls outside the scope of the Terry exception to the warrant
     requirement. Without a warrant and outside this exception to the

                                    - 11 -
J-A10023-20


     rule requiring one, the search is per-se unreasonable under
     constitutional principles. Commonwealth v. McCree, 924 A.2d
     621, 627 (Pa. 2007). We must suppress evidence derived from
     the search, unless a second exception applies. …

           When a court finds a first search occurred unlawfully before
     the subject consented to a second search, the court must
     suppress evidence from the latter search unless the
     Commonwealth proves the alleged consent was not a
     product of the illegal search and seizure. See Commonwealth
     v. Reid, 811 A.2d 530, 545 (Pa. 2002). To overcome exclusion,
     the Commonwealth must prove both: 1.) that the consent was not
     given as a result of the unlawful search and seizure; and 2.) that
     consent was given voluntarily. Id. The Commonwealth has the
     burden to prove voluntariness. Commonwealth v. Kemp, 961 A.2d
     1247, 1261 (Pa. Super. 2008).

           In the present case, Trooper Muzzey would not have found
     the pack of cigarettes [that contained crack cocaine had Trooper
     Muzzey] not felt [the cigarette package during the pat-down].
     [Trooper Muzzey] asked [Appellee] to open it almost as soon as
     he had felt it. [Appellee] opened it as soon as he was asked.
     [Appellee] would have had no other reason to open the pack for
     Trooper Muzzey to inspect if he were never asked as part of an
     ongoing search. Examining the inside of the package occurred as
     part of an unbroken search of [Appellee’s] person and would not
     have happened if Trooper Muzzey did not first feel [Appellee’s]
     clothes. Therefore, [Appellee] essentially consented to the search
     continuing, making that consent a result of the unlawful search.
     As a consequence, we must suppress the crack cocaine recovered
     from the inside of the pack of cigarettes. See McCree, 924 A.2d
     at 627; Reid, 811 A.2d at 545.

            Next, we consider the glass pipe and piece of stamped wax
     paper allegedly used as paraphernalia. We are constrained to
     suppress these as “fruit of the poisonous tree.” The fruit of the
     poisonous tree doctrine excludes evidence acquired as a
     consequence of an unlawful search. Commonwealth v. Johnson,
     68 A.3d 930, 946 (Pa. Super. 2013). With the Terry framework,
     where a court finds either the initial detention or the frisk for
     weapons unsupported by reasonable suspicion, it must suppress
     all evidence derived from the search. Commonwealth v. Simmons,
     17 A.3d 399, 403 (Pa. Super. 2011).


                                   - 12 -
J-A10023-20


Trial Court Opinion and Order, 6/28/19, at 4-9 (emphasis added).

      We agree with the trial court. The record provides no basis upon which

the trooper could have concluded that Appellee was armed and dangerous,

and as noted above, the Commonwealth provides no argument on this point.

Thus, Trooper Muzzey’s Terry pat-down of Appellee was illegal, the pack of

cigarettes containing contraband would not have been discovered absent the

illegal pat-down and search, and there is no evidence that Appellee would

have consented to the search absent the illegal police interaction. See Reid,

811 A.2d at 544 (stating that in order to establish that the accused provided

a valid consent to the search, the Commonwealth must prove: 1) consent was

given during a legal police interaction, or if the consent was given during an

illegal police interaction, that the consent was not a result of the illegal

seizure;   and   2)   that   the   consent    was   given   voluntarily)   (citing

Commonwealth v. Strickler, 757 A.2d 884, 888 (Pa. 2000)). Accordingly,

there was no abuse of discretion in the trial court granting Appellee’s motion

to suppress.

      For the reasons set forth above, we conclude that the Commonwealth is

entitled to no relief. Therefore, we affirm the June 28, 2019 order granting

Appellee’s motion to suppress.

      Order affirmed.




                                     - 13 -
J-A10023-20




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/20




                          - 14 -
