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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

CAREY BILLUPS

                            Appellee                  No. 242 EDA 2016


               Appeal from the Order Entered December 31, 2015
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0014851-2013


BEFORE: SHOGAN, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                                 FILED MAY 23, 2017

        The Commonwealth appeals1 from the trial court’s December 31, 2015

order suppressing the alleged victim’s identification of Appellee, Carey

Billups. We reverse and remand.

        Yvette Briggs alleges that, on August 14, 2014, at approximately

10:00 p.m., she was stopped at a traffic light at 41 st and Girard Street in

Philadelphia when Appellee reached through the partially open passenger

side window of her Chevrolet Uplander and stole her pocketbook from the

passenger seat. N.T. Motion, 3/13/15, at 6-8, 19. One of Mrs. Briggs’ credit

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The Commonwealth has certified, pursuant to Pa.R.A.P. 311(d), that the
trial court’s order will terminate the prosecution.
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cards was later used at a gas station at 39th and Girard.     Id. at 9.   Mrs.

Briggs stated the perpetrator looked directly into her face, and she had three

or four seconds to look at him. Id. at 11, 19. Mrs. Briggs pursued Appellee

but he escaped. Id. at 8, 11, 30. Mrs. Briggs then contacted police. Id. at

8.

        At 3:45 a.m. on August 15, 2014, Lieutenant John Barker responded

to a report of three armed men standing near a white Infinity in the vicinity

of 39th and Girard. N.T. Motion, 12/31/15, at 5, 11. He observed three men

meeting the description in the radio report and called for backup. Id. at 6-

7. Police conducted pat down searches of all three men and recovered no

weapons.     Id. at 7.   Lieutenant Barker observed a fourth man near the

scene, and surmised correctly that he was the source of the radio report.

Id. at 7-8. Lieutenant Barker spoke to the fourth man, who turned out to be

Mrs. Briggs’ husband.     Id.   Mr. Briggs told Lieutenant Barker about the

robbery of Mrs. Briggs. Id. at 8. Lieutenant Barker told Mr. Briggs that Mrs.

Briggs would be needed to make an identification.      Id.   Mr. Briggs called

Mrs. Briggs, who arrived shortly thereafter. Id.

        None of the three men were in handcuffs when Mrs. Briggs observed

them.    Id. at 9.   Mrs. Briggs identified Appellee, claiming she was 100%

sure he was the perpetrator.      N.T. Motion, 3/31/15, at 14.    Mrs. Briggs

stated that Appellee had changed shirts, but was wearing the same sneakers

and pants. Id. The record reveals, however, that Mrs. Briggs claimed the


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perpetrator was wearing cargo pants but Appellee was wearing sweatpants

when Mrs. Briggs identified him.          Id. at 37.      Mrs. Briggs also recognized

Appellee by his facial features and beard. Id. at 20. In her initial statement

to the police, Mrs. Briggs did not mention a beard. Id. at 23.

       Appellee    appeared     for   trial    in   Philadelphia   Municipal   Court   on

December 2, 2013. He did not move to suppress any evidence prior to the

Municipal Court trial. The judge found Appellee guilty of theft by unlawful

taking.2 Appellee appealed for a trial de novo before the Philadelphia Court

of Common Pleas. After several defense continuances, the de novo trial was

scheduled to take place on March 31, 2015.                   On that date, however,

Appellee appeared and moved to suppress Mrs. Briggs’ identification

testimony.     According to the Commonwealth’s Brief, the Commonwealth

objected to litigating a motion to suppress on the date scheduled for trial.

The transcript of the March 31, 2015 motion does not record the

Commonwealth’s objection or the trial court’s reasons for permitting

Appellee to litigate his suppression motion.                After the March 31 and

December 31, 2015 hearings, the trial court granted Appellee’s motion.

December 31, 2015, was the trial judge’s last day on the bench.                        He

therefore did not file an opinion explaining his rationale. The December 31,

2015 transcript reflects the following:

____________________________________________


2
    18 Pa.C.S.A. § 3921.



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           Today I learned for the first time that the complainant
     wasn’t called by the police. At 3:30 in the morning her husband
     was out on the prowl looking for—and justifiably so. I’m not
     saying there’s nothing [sic] wrong with that—but he was looking
     for someone based on a vague description his wife gave him as
     to who the person was because Lieutenant Barker testified that
     when he want up to the man at the corner—

                                    […]

           Lieutenant Barker testified when he saw the gentleman up
     on the corner he thought he might have been the guy that called
     in this ‘people with a gun.’ So he went up there and he
     confirmed that was the guy that called it in so that tells me that
     the husband intentionally called in an untrue police report to get
     the police there—let me finish. And he said that he—that the
     husband said he would call his wife and have her come down.
     The police never called the complaining witness. The husband
     called the complaining witness, which leaves me to believe why
     would the complaining witness say the police called her. And
     when the husband called her it’s more likely than not he
     said, ‘Hey, the guy that robbed your purse is down here
     and the police have him.’ It shines a light, not maybe
     intentionally, but the complaining witness wasn’t being truthful
     in how she got to the scene and what she was expecting when
     she got there.

           Based on that and her own testimony of the vagueness of
     why she picked [Appellee] out and that she did expect [Appellee]
     to be there and that it was her husband who called her and gave
     her the information as to what to expect when she got there and
     what was waiting there because the Lieutenant didn’t stay with
     the husband when he called her, I find that her testimony was
     skewed and it’s not believable from the point of view of making a
     good identification and I grant the motion to suppress.

N.T. Motion, 12/31/15, at 45-48 (emphasis added).

     The Commonwealth filed a timely appeal challenging the trial court’s

order.   Before we address the merits, we consider the Commonwealth’s

argument that Appellee’s motion to suppress was procedurally improper. As



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the Commonwealth correctly notes, in most cases a defendant must file a

pretrial motion within 30 days of arraignment:

                (A) Except as otherwise provided in these rules, the
         omnibus pretrial motion for relief shall be filed and served within
         30 days after arraignment, unless opportunity therefor did not
         exist, or the defendant or defense attorney, or the attorney for
         the Commonwealth, was not aware of the grounds for the
         motion, or unless the time for filing has been extended by the
         court for cause shown.

Pa.R.Crim.P.579(A).          Rule 581(B) provides that a motion to suppress

evidence shall be part of the omnibus pretrial motion provided for in Rule

579. Pa.R.Crim.P. 581(B). Rule 581 also provides that an untimely motion

results in waiver.     Id.    The Commonwealth also cites Commonwealth v.

Harmon, 366 A.2d 895 (Pa. 1976) for the proposition that a defendant may

not file a suppression motion in between a Municipal Court trial and a de

novo trial in the Court of Common Pleas. In Harmon, the Supreme Court

considered whether the Pennsylvania Constitution entitles a defendant to

relitigate a suppression motion before a de novo trial in the court of

Common Pleas. Id. at 896. The Supreme Court concluded a defendant was

not entitled to relitigate a suppression motion before the Court of Common

Pleas.     Id. at 899.   Likewise, in Commonwealth v. Johnson, 146 A.3d

1271 (Pa. Super. 2016), appeal denied, 2016 WL5947287 (Pa. October 13,

2016), this Court wrote that “a defendant [can] not relitigate at the trial de

novo issues raised, or which could have been raised, at the Municipal Court




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suppression hearing.”   Id. at 1274 (quoting Commonwealth v. Dobson,

405 A.2d 910, 914 (Pa. 1979)).

      In this case, Harmon and Johnson do not answer the question before

us.   Here, the question is whether the trial court appropriately permitted

Appellee to litigate a suppression motion filed after the Municipal Court trial.

Rule 579 does not foreclose the filing of a pretrial motion beyond the 30-day

time limit.   Rather, the Rule permits an untimely motion where a prior

opportunity did not exist, where counsel was unaware of the grounds for the

motion, or where the trial court finds good cause. In this case, the certified

record does not reveal the basis for the trial court’s decision.      The only

recorded reference to the motion’s timeliness came at the end of the

December 31, 2015 hearing:

            Your Honor, I know that the Court ruled on procedural
      objections, but just to preserve the record just in case this case
      ends up in the Superior or the Supreme Court, for the record the
      Commonwealth is objecting.

            First of all, this motion should be denied without a hearing
      because it was most importantly waived when it was not brought
      in Municipal Court.       As the Pennsylvania Rules of Criminal
      Procedure clearly states [sic] that any pretrial motions,
      specifically a motion to suppress that is not brought in Municipal
      Court is waived on appeal. Second of all, this motion is moot
      because it was not brought before—it was brought after the
      complainant had already identified [Appellee] at trial when he
      was convicted of all charges. Third, it was not filed in writing
      and four, it was untimely. I know that Your Honor has already
      denied the procedural objections, but I just had to put them on
      the record.

N.T. Motion, 12/31/15, at 36-37.



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        The Commonwealth cites no other portion of the record in support of

its procedural argument (Commonwealth’s Brief at 6), and we have found

none.     As the appellant, the Commonwealth was responsible for ensuring

that this Court received a complete record for review. Commonwealth v.

Bongiorno, 905 A.2d 998 (Pa. Super. 2006) (en banc), appeal denied, 917

A.2d 844 (Pa. 2007).       The Commonwealth claims it objected before the

March 31, 2015 hearing and the trial court permitted Appellee to litigate his

suppression motion. The basis for the trial court’s ruling was not transcribed

or otherwise made a part of the record.        We therefore cannot determine

whether the trial court’s decision was appropriate, and we are constrained to

conclude the Commonwealth failed to preserve this issue for review.

        We now turn to the merits.        The following standard governs our

review:

              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.

              Our standard of review is restricted to establishing whether
        the record supports the suppression court’s factual findings;
        however, we maintain de novo review over the suppression
        court’s legal conclusions.




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Commonwealth v. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016)

(internal citations and quotation marks omitted), appeal denied, 2016 WL

6107660 (Pa. October 18, 2016).

      The trial court’s rationale for granting Appellee’s suppression motion,

quoted above, contains a critical finding that the record does not support.

Specifically, the trial court surmised that Mr. Briggs told Mrs. Briggs that the

police had the guy who robbed her. N.T. Motion, 12/31/15, at 47. Thus, the

trial court reasoned that Mrs. Briggs arrived at the scene expecting to see

the perpetrator. For that reason, her identification of Appellee was tainted.

The trial court reasoned that Mr. Briggs call to Mrs. Briggs “shines a light,

not maybe intentionally, but the complaining witness wasn’t being truthful in

how she got to the scene and what she was expecting when she got there.”

Id. at 47-48.   The trial court also found that Mrs. Briggs’ testimony was

“skewed.” Id. at 48.

      Mr. Briggs did not testify at the suppression hearing, and there is

nothing in the record to support the trial court’s finding of what Mr. Briggs

said to Mrs. Briggs.   The record contains no evidence of the substance of

their conversation.    We recognize that the trial court characterized Mrs.

Briggs’ testimony as vague.      Id. at 48.     Nonetheless, the trial court’s

unsupported finding clearly played a significant role in the court’s rejection

of Mrs. Briggs’ credibility and its decision to suppress her identification of




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Appellee. Under these circumstances, we reverse the trial court’s order and

remand for further proceedings.

     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Platt joins this memorandum.

     Judge Shogan concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/23/2017




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