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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: THE FIRM PROTECTION                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: COMMONWEALTH OF                 :
    PENNSYLVANIA                               :
                                               :
                                               :
                                               :
                                               :   No. 1262 EDA 2018

                    Appeal from the Order Dated April 3, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-MD-0000249-2018


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JOSHUA H. NOLLIE                           :   No. 1279 EDA 2018
                                               :
                       Appellee                :

                      Appeal from the Order April 3, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-MD-0000248-2018



BEFORE:      SHOGAN, J., McCAFFERY, J., and COLINS, J.*

DISSENTING MEMORANDUM BY SHOGAN, J.:                       FILED MAY 15, 2020

        The learned Majority thoroughly analyzes the merits of the issue

presented in this matter.         However, upon review of the relevant law and

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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certified record, I am compelled to register my dissent because the issue

addressed in the Majority’s memorandum has not been preserved for our

review.

      It is well settled in Pennsylvania that a party must make a timely and

specific objection at trial in order to preserve an issue for appellate review.

Pa.R.A.P. 302(a), see also Commonwealth v. Montalvo, 641 A.2d 1176,

1185 (Pa. Super. 1994) (“In order to preserve an issue for review, a party

must make a timely and specific objection at trial.”). Pursuant to Pa.R.A.P.

302, issues that are not raised in the lower court are waived and cannot be

raised for the first time on appeal. Pa.R.A.P. 302(a). Likewise, we have long

held that “[a] claim which has not been raised before the trial court cannot be

raised for the first time on appeal.” Commonwealth v. Lopata, 754 A.2d

685, 689 (Pa. Super. 2000). In addition, “[a] theory of error different from

that presented to the trial jurist 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).

Thus, only claims properly presented in the trial court are preserved for

appeal.

      Here, the Commonwealth has presented the following issue for this

Court’s review:

      Did the lower court improperly grant [Appellee’s] petition[s] for a
      private detective’s license, where he was not qualified for such a
      license because he did not demonstrate that he had sufficient
      experience required under the statute?

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Commonwealth’s Brief at 4. In addressing this claim, the Majority concludes

that “[Appellee] did not comply with the formal requirement of the Act to

attach to his application ‘at least two duly acknowledged certifications’ that he

‘has been regularly employed as a detective . . . for a period of not less than

three years.’” Majority Memorandum at 9. In addition, the Majority agrees

“with the Commonwealth’s assertion that [Appellee’s] former employment as

a security supervisor, as outlined in the letter submitted by his former

employer, did not demonstrate that [Appellee] had the requisite investigatory

experience outlined in [22 P.S. § 12(b)].” Id.

      However,    my   review   of   the   certified   record   reflects   that   the

Commonwealth waived this issue. At the hearing held on March 19, 2018, the

Commonwealth initially objected to the failure to establish the requisite three

years of experience.

      Specifically, the Commonwealth objected as follows:

      So, then, Judge, my objection based on the fact that per the
      statute you need basically three years minimum of investigatory
      experience. I don’t know enough about that. So, I will concede
      that -- I will give enough for one-and-a-half years.
      That’s – we’re still one-and-a-half years removed from what the
      statutory minimum is. It -- the statute’s clear.

             Just -- it has to be three years of investigatory experience.
      It doesn’t really quite say what “detective” is, but we go to the
      definition section of the Private Detective Act. It talks about what
      business being a private detective is. And it goes into detail.

           There’s a list of things. But chief -- big among them are,
      what would you expect a detective to do? What an investigator
      would do: tracking people down; looking for things; judging


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      credibility. Things like that. So, the one-and-a-half years, I’m
      not going to say that wouldn’t count, but it's still not a full three.

N.T., 3/19/18, at 6-7 (emphasis added). Appellee then referenced his resume

and indicated an additional two and one-half years of experience with an

additional employer. Id. at 7. The Commonwealth then stated:

      Judge, I mean, if that’s the case, I’m not here to dispute what
      he’s saying.

                                     * * *

      If he’s willing to go back to those -- the earlier employment and
      bring something from that firm saying he -- these were what his
      duties were; that he went and investigated on this or that, I don’t
      think we would be having the objection that we do today. It’s just
      based on what we have before us. We have no way of verif --
      verifying that information.

N.T., 3/19/18, at 8 (emphasis added). Appellee then indicated to the trial

court that he could get verification in writing from his former employer. Id.

at 11. When Appellee asked if the verification could be in the form of an email,

the trial court consented. Id. The Commonwealth also agreed and stated:

“Just something in writing.” Id. at 11-12. The Commonwealth and trial court

then agreed to a continuance in order to allow the Commonwealth to

investigate and verify the information that was to be forthcoming. Id. at 12-

13. The trial court then summarized as follows:

      So, we’ll give it – we’ll give it a two-week date. We’ll continue it
      for two weeks. And it has to go the DA. And they need to -- their
      detectives need to verify it. And if we can verify it, then I can
      grant the license.

                                     * * *


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      Okay? So, we’re going to give you two weeks for them to
      investigate. But you should get it to them as soon as possible, so
      they have the full two weeks to do what they need to do.

Id. at 13. The trial court set a hearing date of April 3, 2018, and stated:

            You’re going to give it to the DA ASAP, so they can do their
      investigation.

                                     * * *

           So, when we come back, hopefully, they’ll -- objection will
      be removed, and I can grant that license.

Id. at 14.

      The record further reflects that the hearing was reconvened on April 3,

2018, as scheduled. The following transpired at the outset of the hearing:

      [Assistant District Attorney]: Your Honor, I’m just going to hand
      up to you what the Commonwealth has received –

      THE COURT: Okay. Let me take a look.

      [Assistant District Attorney]: -- for you to read through. I think
      this was just the -- the issue with the license.

      THE COURT: Yes. We needed a letter.

                                     - - -

                                 (Brief pause.)

                                     - - -

      THE COURT: All right. Do you have argument? Or -- I mean, I’ve
      read the letter. Do you have any argument, or do you just –

      [Assistant District Attorney]: I think it was just –

      THE COURT: Okay.

      [Assistant District Attorney]: -- you know. We –

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      THE COURT: All right. I have reviewed the letter. I’m just trying
      to get through the -- I reviewed the letter for [Appellee] as related
      to the private investigator license for both him and his firm. And
      I am going to grant the licenses. Okay?

N.T., 4/3/18, at 4. After the trial court granted both licenses, the assistant

district attorney simply asked for a copy of the letter for the file. Id. at 5.

Indeed, as the Majority states, “the Commonwealth offered no further

objection.” Majority Memorandum at 3.

      Thus, when faced with the opportunity to set forth a challenge

concerning whether Appellee met the requirements to receive the license

under the Act, the Commonwealth failed to present the issue to the trial court.

Rather, at the first hearing the Commonwealth conceded that Appellee’s

documentation satisfied one and one-half years of the three-year statutory

requirement. At the second hearing, the Commonwealth presented the trial

court with Appellee’s additional documentation and acquiesced to its

propriety. As a result, the trial court granted the petitions filed by Appellee.

Accordingly, the Commonwealth’s failure to make a timely and specific

objection at the hearings results in failure to preserve the issue for our

appellate review. Pa.R.A.P. 302(a); Lopata, 754 A.2d at 689.

      In re Sentry Secur, Inc., 417 A.2d 190 (Pa. 1980), illustrates an

appropriate option for the Commonwealth to challenge the issuance of a

private detective license where the issue was not preserved for appellate

review in the original proceeding. In In re Sentry, the appellee applied to

the trial court for a detective license under the Act. Id. at 191. The District

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Attorney did not object to the application, and the trial court granted the

license. Id. The Commonwealth did not take an appeal. Four months later

the District Attorney filed with the trial court a petition for revocation of the

license. Id. In the petition before the trial court, the District Attorney alleged

that the license was improperly granted because the appellee did not meet

the statutory requirements prescribed in the Act. Id. The trial court revoked

the license and, on appeal, this Court reversed.          Id.    Thereafter, the

Pennsylvania Supreme Court affirmed this Court’s decision. Id. at 194. Thus,

the District Attorney, after failing to raise with the trial court a challenge to

the propriety of the application, subsequently presented the issue to the trial

court, albeit in a petition seeking revocation of the license.

      For these reasons, I conclude that the issue is waived.




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