J-A14033-17


COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

STEWART ENOS,

                         Appellee                   No. 1131 EDA 2016


                   Appeal from the Order March 22, 2016
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0008798-2014


BEFORE: BENDER, P.J.E., BOWES and SHOGAN, JJ.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 08, 2017

      This is a Commonwealth appeal from the March 22, 2016 order

suppressing video evidence of a drug transaction between Appellee, Stewart

Enos, and a confidential informant (“CI”). After careful review, we reverse

and remand this case for trial.

      The trial court summarized the pertinent facts, which are supported by

our independent review of the record, as follows:

            Instantly, the CI arranged to purchase drugs from
      someone named “Stew.” The CI was outfitted with a concealed
      camera which did not record audio of the transaction. The CI
      was searched and given premarked currency to purchase a
      “dove” or twenty dollars’ worth of cocaine. While Sergeant
      [Michael] Markovich [of the Pottstown Police Department]
      observed, the CI then proceeded to a designated meeting area
      where a white Toyota, driven by [Appellee,] pulled up. The CI
      entered [Appellee’s] car and was driven about a half a block.
      The CI exited the vehicle, returned to the location where Sgt.
      Markovich dropped him off[,] and gave police a green bag
      containing the alleged cocaine. During the controlled buy, law
J-A14033-17


     enforcement could not see into the tinted windows of the car
     from their nearby vantage point. The vehicle was permitted to
     leave the scene of the buy[,] and [Appellee] was not arrested
     until a year later.    Law enforcement was able to identify
     [Appellee] from the video recorded by the CI.

Trial Court Opinion, 8/12/16, at unnumbered 5 (internal citations omitted).

     An information was filed on January 23, 2015, charging Appellee with

violating 35 P.S. 780-113(a)(30), possession with intent to deliver a

controlled substance, 35 P.S. 780-113(a)(16), possession of a controlled

substance, and 35 P.S. 780-113(a)(32), possession of drug paraphernalia.

Over the course of the next year, the parties filed numerous motions

including, inter alia, a petition for writ of habeas corpus, waivers of

Pa.R.Crim.P. 600, motion to revoke bail, and a motion for recusal.

     On March 21, 2016, Appellee filed a “Motion In Limine Concerning

Video Evidence” and “Defendant’s Motion to Reveal the Identity of the

Confidential Informant.” Following a hearing the same date, the trial court

denied both motions. The case proceeded to jury selection, and a jury was

selected and sworn. The next day, March 22, 2016, Appellee filed a “Motion

to Suppress” and “Defendant’s Motion In Limine Concerning the Defendant’s

Criminal Record.” The court held a hearing on the motion to suppress. At

the conclusion of the hearing, the trial court suppressed the video recording

based on our decision in Commonwealth v. Dunnavant, 63 A.3d 1252

(Pa. Super. 2013), affirmed by an equally divided court, 107 A.3d 29 (Pa.




                                    -2-
J-A14033-17


2014). In doing so, the trial court also declared a mistrial based on manifest

necessity, as follows:

      The [c]ourt previously declared that [the suppression] motion
      was out of time, meaning he did not demonstrate that he was
      prohibited from determining this issue and particularly the case,
      the Dunnavant case.

            However, on the other one [sic] that commands this to the
      [c]ourt’s discretion, the [c]ourt granted [Appellee] the out of
      time filing of that motion and the hearing on that motion in the
      interest of justice.

            Following presentation of further evidence and the
      argument of the parties, rebriefing of the parties, this [c]ourt
      granted the motion and suppressed the video.                The
      Commonwealth sought a reconsideration of that and that was
      denied.

            It has all occurred in the span of approximately five hours,
      and at this stage we are in the place to where, again, I am not
      going ascribe it to the Commonwealth because the [c]ourt finds
      that the Commonwealth has committed absolutely no
      misconduct. Nothing that has occurred here has had anything to
      do with the Commonwealth, how it’s presented its evidence,
      what the Commonwealth has done.            It has nothing to do
      procedurally with anything.

            So in any terms of exposing [Appellee] to double jeopardy
      because the Commonwealth is now out of time intending to
      pursue its right which is automatically guaranteed by the Rules
      of Appellate Procedure to pursue an appeal of this [c]ourt’s
      ruling, and therefore that is the manifest necessity the [c]ourt
      sees.

             And I don’t want to get hung up on the Commonwealth
      making the motion because at this stage they’ve said to the
      [c]ourt we want to appeal your ruling. And they have every
      right to do so.    And all they are required to do is under
      [Pa.R.A.P.] 311(d) make a declaration to the Superior Court that
      their case cannot go forward.




                                    -3-
J-A14033-17


             They may take an appeal right from an order that does not
       end the entire case where the Commonwealth will certify in its
       Notice of Appeal that the order will terminate or substantially
       handicap the prosecution. They intend to tell the Superior Court
       in their notice of certification that my order will handicap their
       case.

             And what occurs with that is then left to the appellate
       courts, but clearly it is of no doing of the Commonwealth other
       than simply pursuing a right guaranteed by the Rules of
       Appellate Procedure and also the Rules of Criminal Procedure
       should this arise.

              Therefore, the [c]ourt is declaring a mistrial for manifest
       necessity indicating that there was nothing that was done at all
       by the Commonwealth that in any way provoked this. And in
       fact, it occurred solely due to the error of defense counsel.

N.T., 3/22/16, at 60–62 (emphasis added). The Commonwealth appealed.1

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

       The Commonwealth presents the following two issues on appeal:

        I.    Did the trial court err when it extended Commonwealth v.
              Dunnavant, 63 A.3d 1252 (Pa. Super. 2013), aff’d by an
              equally divided court, 107 A.3d 29 (Pa. 2014), to suppress
              a video of a drug transaction in [Appellee’s] car, where he
              had a diminished expectation of privacy?

____________________________________________


1  The trial court noted that the “Commonwealth’s April 12, 2016 Notice of
Appeal did not contain the required certification pursuant to Pa.R.A.P.
311(d); however, an amended Notice of Appeal with the necessary language
was filed on April 14, 2016.” Trial Court Opinion, 8/12/16, at unnumbered 2
n.1. The Commonwealth may appeal an interlocutory order suppressing
evidence when it provides a certification with its notice of appeal that the
order    terminates     or   substantially   handicaps    the    prosecution.
Commonwealth v. Petty, 157 A.3d 953, 954 n.1 (Pa. Super. 2017);
Pa.R.A.P. 311(d). Thus the appeal is properly before us. Commonwealth
v. Haines, ___ A.3d ___, 2017 PA Super 252, *1 n.1 (Pa. Super. filed
August 2, 2017).



                                           -4-
J-A14033-17


      II.   Did the trial court abuse its discretion when it heard
            [Appellee’s] untimely suppression motion after swearing
            the jury when defense counsel admitted that the grounds
            for that motion previously existed and the interests of
            justice did not require it?

Commonwealth’s Brief at 4.

     Our standard of review of a trial court’s order granting a defendant’s

motion to suppress evidence is well established:

     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) (citations omitted). “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.”
     Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
     (2010) (citation omitted).

Petty, 157 A.3d at 955 (quoting Commonwealth v. Korn, 139 A.3d 249,

252–253 (Pa. Super. 2016)).

     The Commonwealth first contends that the trial court erroneously

suppressed the drug-transaction video recording and improperly extended

Commonwealth       v.   Dunnavant,    63   A.3d    1252   (Pa.   Super.   2013)

(“Dunnavant I”).    In Dunnavant I, this Court held that the warrantless

covert video recording inside a defendant’s home violated Article I,

Section 8 of the Pennsylvania Constitution. The Commonwealth asserts that

                                     -5-
J-A14033-17


the trial court’s extension of that holding outside of a defendant’s home “is

inconsistent with prior Pennsylvania Supreme Court precedent,” the long-

recognized    “diminished   expectation   of   privacy   in   [a]   car,”   and

“Dunnavant’s foundational precedent.” Commonwealth’s Brief at 10. The

Commonwealth maintains that Dunnavant I is merely the application of an

exception to the general rule, established in Commonwealth v. Blystone,

549 A.2d 81 (Pa. 1988), aff’d sub nom. Blystone v. Pennsylvania, 494

U.S. 299 (1990), that a defendant “lacks a reasonable expectation of privacy

in things he voluntarily discloses to someone else.” Commonwealth’s Brief

at 12.   Thus, the Commonwealth contends the trial court improperly

extended Dunnavant I to apply to the recording in Appellee’s vehicle.

     The Commonwealth further avers that Appellee forfeited his decreased

reasonable expectation of privacy when he invited the CI into his car.

Commonwealth’s Brief at 13. The Commonwealth urges that once Appellee

opened his car to the CI, “he risked that the informant might record

everything that occurred inside the car and give that recording to the

police.” Id. The Commonwealth acknowledges that a defendant retains a

“modicum of a reasonable expectation of privacy in his car,” but “far less

than in his home.” Id. at 19.

     Appellee counters that this case involves three precepts: 1) there is a

reasonable expectation of privacy in a vehicle, citing Commonwealth v.




                                    -6-
J-A14033-17


Caban, 60 A.3d 120 (Pa. Super. 2012);2 2) “but for” a few exceptions, a

warrantless search is per se unreasonable, citing Commonwealth v. Blair,

575 A.2d 593 (Pa. Super. 1990); and 3) “the warrantless use of a concealed

video camera in a residence is per se unreasonable,” citing Dunnavant I.

Appellee’s Brief at 7 (emphasis added).           Appellee underscores that the CI

was reliable and known to Sergeant Markovich for nine years, and Sergeant

Markovich testified that he had time to secure a warrant. Appellee’s Brief at

8.

       We begin our analysis by examining the underpinnings of Dunnavant

I.   In that case, this Court affirmed a trial court’s suppression of a silent

video recording worn by a confidential informant obtained inside the

defendant’s residence. The question before us was “whether the defendant

has a privacy interest in not being videotaped secretly in his own home.”

Dunnavant I, 63 A.3d at 1256.                  We further noted that because the

government conducted the video recording, “the question [became] one of

constitutional proportion.” Id.

       In that case, the intended meeting place between the informant and

the defendant originally was a street corner, but when the defendant

arrived, he transported the informant in his car to the defendant’s residence,

____________________________________________


2  We noted in Commonwealth v. Coleman, 130 A.3d 38 (Pa. Super.
2015), that the Caban Court relied “on a since overruled standard for
reviewing suppression claims.” Coleman, 130 A.3d at 42 n.1.



                                           -7-
J-A14033-17


where the informant was invited inside and the drug-buy transpired.

Dunnavant I, 63 A.3d at 1253–1254. The camera recorded, among other

things, the informant’s ride in the defendant’s car and the drug purchase

inside of the home. It is noteworthy that the trial court suppressed only the

“depict[ion of] the interior of the [d]efendant’s residence”; it did not

suppress the footage of the informant in the defendant’s vehicle.      Id. at

1254.

        The Dunnavant I Court relied upon Commonwealth v. Kean, 556

A.2d 374 (Pa. Super. 1989), as controlling authority.      Dunnavant I, 63

A.3d at 1256 (“Kean remains controlling law on the subject of a defendant’s

‘legitimate expectation of privacy not only in their home, but also in the

reflection of their home that a videotape captures and preserves.’”).     We

stated therein that “the dweller of a residence does not expect that an

invitee would videotape events occurring inside his or her residence without

his or her consent.” Dunnavant I, 63 A.3d at 1256.

        On appeal, our Supreme Court was equally divided,3 thus resulting in a

decision of affirmance. Commonwealth v. Dunnavant, 107 A.3d 29 (Pa.

2014) (“Dunnavant II”).               The opinions in Dunnavant II suggest

agreement with the Commonwealth’s position in this appeal.         Now Chief

____________________________________________


3  Now Chief Justice Saylor was joined by Justices Baer and Todd in support
of affirmance; Former Chief Justice Castille was joined by former Justices
Eakin and Stevens in support of reversal.



                                           -8-
J-A14033-17


Justice Saylor, writing in support of affirmance, stressed that unlike in

Blystone, the conversations in Dunnavant II occurred “in the sanctity of

one’s home,” where of all the places that exist, an individual “must feel

secure in his ability to hold a private conversation . . . .”       Dunnavant II,

107 A.3d at 30.           Similarly, Justice Todd, also writing in support of

affirmance, opined that the place in which the warrantless intrusion and

secret video were made by the CI, inside the defendant’s home, “was the

critical factor in rendering this conduct a constitutional violation.” Id. at 31.

Justice Todd concluded that the warrantless video recording made inside of

the   defendant’s      home     should     be    suppressed   in   accordance   with

Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), which established that

“a person does not forfeit the strong privacy interest he or she has in [his]

home or residence just by allowing an individual to come inside.” Id. at 32.

       In support of reversal, then Chief Justice Castille, joined by Justices

Eakin and Stevens,4 focused upon Kean’s reliance on Blystone, 549 A.2d

81, “a case that considered the constitutionality of Pennsylvania’s Wiretap

Act (18 Pa.C.S. §§ 5701–5782) when a suspect is audio-recorded by a CI




____________________________________________


4  The justices who would have reversed Dunnavant I are no longer on the
High Court; furthermore, as they did not find a controlling privacy interest in
Dunnavant II, which occurred inside a residence, it is doubtful they would
find such interest in a motor vehicle.



                                           -9-
J-A14033-17


wearing a recording device.”5 Dunnavant II, 107 A.3d at 36. The opinion

in support of reversal concluded that “given the exigent circumstances, and

given that there was no underlying unlawful governmental conduct, such as

‘sending’ a CI into a citizen’s home for the purpose of recording a

conversation, no constitutional violation occurred.”    Dunnavant II, 107

A.3d at 51.

       In the present case, the trial court’s explanation in support of its

decision to suppress the video is very brief, without analysis of any relevant

case law; indeed, the court only minimally referenced Dunnavant I.          It

further determined that the window tint of Appellee’s vehicle, in combination

with the holding in Dunnavant I, compelled suppression of the video in this

case. Trial Court Opinion, 8/12/16, at unnumbered 4–5. Also as noted by

the trial court, Appellee did not present any evidence, such that the

Commonwealth’s evidence was uncontradicted. Trial Court Opinion, 8/12/16,

at unnumbered 4.         Without citing support and merely noting Appellee’s

reliance on Dunnavant I, the trial court determined that the CI’s actions at

the behest of the government, in light of the concealment of the transaction

by the car’s window tint, constituted an unreasonable search. It concluded

that Appellee had an expectation of privacy in his vehicle. Id. at 5.
____________________________________________


5   The applicability of Blystone to the instant case is premised upon our
Supreme Court’s acknowledgment in Brion that “[i]mplicit in any discussion
of an expectation that a communication will not be recorded, is a discussion
of the right to privacy.” Brion, 652 A.2d at 288.



                                          - 10 -
J-A14033-17


      We have examined the law and the arguments of the parties in light of

the record.   We conclude that the issue is controlled by Blystone, not

Dunnavant. As our Supreme Court explained in Blystone:

             It has been held that the protection provided by Article I, §
      8 of the Pennsylvania Constitution extends to those zones where
      one has a reasonable expectation of privacy, Commonwealth
      v. DeJohn, 486 Pa. 32, 403 A.2d 1283 (1979) cert. denied, 444
      U.S. 1032, 100 S.Ct. 704, 62 L.Ed.2d 668 (1980); and that
      Article I, § 8 creates an implicit right to privacy in this
      Commonwealth. Commonwealth v. Platou, 455 Pa. 258, 312
      A.2d 29 (1973) cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41
      L.Ed.2d 1146 (1974). To determine whether one’s activities fall
      within the right of privacy, we must examine: first, whether
      appellant has exhibited an expectation of privacy; and second,
      whether that expectation is one that society is prepared to
      recognize as reasonable. Commonwealth v. Sell, supra; Katz
      v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 516, 19
      L.Ed.2d 576 (1967) (Concurring Opinion, Harlan, J.);
      Commonwealth v. Tann, 500 Pa. 593, 459 A.2d 322 (1983).

Blystone, 549 A.2d at 87.

      The issues in Blystone involved a defendant’s constitutional challenge

to the Pennsylvania Wiretap Act, 18 Pa.C.S. §§ 5701–5782, and an

individual’s lack of privacy interest in information voluntarily disclosed to an

informant.    The Blystone court reinforced that a defendant lacks a

reasonable expectation of privacy in things he voluntarily exposes to

someone else. Blystone, 549 A.2d at 87.

      Herein, Appellee forfeited his decreased reasonable expectation of

privacy in his automobile when he invited the CI into it. Once he opened his

car to the CI, he relinquished any reasonable expectation of privacy and the




                                     - 11 -
J-A14033-17


protections of the Fourth Amendment and Article I, Section 8, and he risked

that the entire transaction could be recorded and given to the police.

       As the Commonwealth points out, however, the Blystone doctrine has

its limits.   See, e.g., Kean, 556 A.2d 374, and Brion, 652 A.2d 287;

Commonwealth’s Brief at 13. One year following Blystone, this Court held

that it did not apply to video recordings of private activities within someone’s

bedroom.      Kean, 556 A.2d at 381–382 (distinguishing Blystone and

observing that under Article I, Section 8 of the Pennsylvania Constitution, a

Pennsylvania citizen “may maintain a legitimate expectation of privacy in the

home notwithstanding the fact that the interior of the home is secretly

videotaped by a guest.”).    In Kean, this Court distinguished Blystone on

the basis that video recording persons in their own home—indeed, in their

own bed while engaging in sexual relations—was “uniquely invasive.” Id. at

382.

       Subsequently, in Brion, our Supreme Court, noting the issue before it

was “whether the Blystone rationale extends to cases involving the

surreptitious recording of a conversation in a private residence,” held that

“an individual can reasonably expect that his right to privacy will not be

violated in his home through the use of any electronic surveillance.” Brion,

652 A.2d at 289 and n.2. Thus, the Brion Court determined that Blystone

did not apply within a defendant’s home.      Clearly, a defendant’s elevated

expectation of privacy within his home is fundamental to the limitations in


                                     - 12 -
J-A14033-17


both Kean and Brion. Kean, 556 A.2d at 380 (“Upon closing the door of

one’s home to the outside world, a person may legitimately expect the

highest degree of privacy known to our society.”); Brion, 652 A.2d at 287

(“[T]he right to privacy in one’s domain is sacrosanct. . . .”).     Thus, the

Blystone doctrine yields to a defendant’s paramount privacy interest in his

home.

       Here, the limitations discussed supra do not apply.    The silent video

recording, which took place in Appellee’s automobile, does not present the

same privacy concerns. “[E]ven though privacy protections are implicated

under Article I, § 8, the heightened privacy concerns involved in a seizure

from an individual’s person are not present where an object is seized from a

vehicle.” Commonwealth v. McCree, 924 A.2d 621, 630 (Pa. 2007); see

also    Commonwealth      v.   Holzer,   389   A.2d   101,   106   (Pa.   1978)

(expectation of privacy in one’s vehicle significantly less than in one’s home

or office); Commonwealth v. Bosworth, 456 A.2d 661, 663–664 (Pa.

Super. 1983) (“It is by now well settled that a person’s expectation of

privacy with respect to an automobile is significantly less than with respect

to his or her home or office.”).    Automobiles are accorded a diminished

expectation of privacy because of their “open construction, their function,

and their subjection to a myriad of state regulations.” Commonwealth v.

Timko, 417 A.2d 620, 623 (Pa. 1980).




                                    - 13 -
J-A14033-17


      Thus, we conclude that Blystone compels the conclusion that

suppression of the video recording in this case was an abuse of discretion.

Appellee met with the CI for the purpose of selling him drugs and voluntarily

invited him into the car. The entire transaction occurred inside that vehicle.

In line with Blystone, once Appellee opened his automobile to the CI, he

risked that everything occurring inside the car would be recorded and given

to the police. Appellee therefore relinquished his reasonable expectation of

privacy and the protections of the Fourth Amendment and Article I, Section

8.   Accordingly, the trial court erred in suppressing the video recording of

the drug transaction.

      The Commonwealth alleges in its second issue that the trial court

abused its discretion when it entertained Appellee’s untimely suppression

motion after the jury had been sworn, asserting that the merits of the

motion were not so apparent that the interests of justice demanded hearing

it. To the contrary, the Commonwealth contends that

      [t]he interests of justice did not support hearing [Appellee’s]
      midtrial motion to suppress the video of him selling drugs
      because it was unsupported by existing law. There is no case
      supporting the proposition that a defendant has a reasonable
      expectation that he will not be video recorded after inviting a
      person into his car.

Commonwealth’s Brief at 27.       Furthermore, it points out that defense

counsel admitted that the grounds for the motion previously existed. Id. at

22–23.    However, despite observing that the tardy presentation of the

motion “occurred solely due to the error of defense counsel” in failing to

                                    - 14 -
J-A14033-17


diligently research its case, N.T., 3/22/16, at 62, and recognizing the novelty

of Appellee’s argument, the trial court opined that the interests of justice

required it to hear the untimely suppression motion so as to avoid a later

Post Conviction Relief Act6 (“PCRA”) proceeding.           Id. at 60; Trial Court

Opinion, 8/12/16, at unnumbered 2.

       The Commonwealth notes Appellee’s procedural missteps, as follows:

On the day before trial, March 21, 2015, Appellee filed a motion in limine

seeking to preclude the Commonwealth’s admission of the video of the drug

transaction recorded by the CI. The trial court held a hearing on the issue,

following which it denied the motion. The parties then selected a jury that

was seated and sworn.             The next day, defense counsel submitted a

suppression motion.       Counsel told the court that he had “just discovered”

Dunnavant I, a case from 2013, that he believed would dissuade the court

from its previous ruling. N.T., 3/22/16, at 5. The trial court cited the waiver

provision of Pa.R.Crim.P. 581 and expressed incredulity that defense counsel

appeared to be invoking the exception of Rule 581, that the opportunity to

locate the case “did not previously exist.”        Pa.R.Crim.P. 581(B).7   Defense


____________________________________________


6   42 Pa.C.S. §§ 9541–9546.

7   Pa.R.Crim.P. 581 provides, in pertinent part:

       (A) The defendant’s attorney, or the defendant if unrepresented,
       may make a motion to the court to suppress any evidence
(Footnote Continued Next Page)


                                          - 15 -
J-A14033-17


counsel admitted, “The opportunity did previously exist.” N.T., 3/22/16, at

5. The trial court then protested as follows:

      Here’s the dilemma the [c]ourt is put into, meaning that, you
      know, at this stage if I am to, you know, strictly enforce Rule
      581, this issue is deemed waived. And if it is deemed waived—
      and now you’ve placed on the record that you simply did not
      do the research necessary in a timely fashion to comply
      with the rules, you would have discovered this case. But you
      didn’t.

      The interest of justice for this [c]ourt has taken on a whole new
      view. The interest of justice is the question of whether does it
      get approached now or does it get approached only if this
      defendant was convicted and was to file a Post Conviction Relief
      Act [(“PCRA”) petition] against you for clearly not following this
      rule.

                                          * * *

      At this stage I am going to permit the untimely filing of this
      Motion to Suppress Video Evidence.
(Footnote Continued) _______________________

      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.

                                         * * *
             Comment:

                                         * * *

             It should be noted that failure to file the motion
             within the appropriate time limit constitutes a waiver
             of the right to suppress.



                                         - 16 -
J-A14033-17



N.T., 3/22/16, at 8–9 (emphasis added); Trial Court Opinion, 8/12/16, at

unnumbered 3.

      In defending its decision to entertain the untimely suppression motion,

the   trial    court   observed   in   its    Pa.R.A.P.   1925(a)    opinion   that   the

Commonwealth did not request a continuance. Trial Court Opinion, 8/12/16,

at unnumbered 3. It further concluded that “the potential for a meritorious

[PCRA] claim based on counsel’s deficient performance in failing to

research and file a timely suppression motion required [the c]ourt, in

the interests of justice, to permit the untimely filing of a Motion to Suppress

Video Evidence.” Id. at unnumbered 3–4 (emphasis added).

      In supporting its position that the trial court abused its discretion in

entertaining, and ultimately granting, Appellee’s untimely suppression

motion, the Commonwealth cites Pa.R.Crim.P. 578, which provides that a

defendant must file a single omnibus pretrial motion.               The Commonwealth

also refers us to Pa.R.Crim.P. 579(A), which requires that such motion be

filed within thirty days after arraignment unless, inter alia, the opportunity

did not previously exist or counsel was not aware of the grounds for the

motion.       The Commonwealth’s position is that the “interests of justice did

not support hearing defendant’s midtrial motion to suppress the video of him

selling drugs because it was unsupported by existing law.” Commonwealth’s

Brief at 27.        The Commonwealth decries the trial court’s decision to




                                             - 17 -
J-A14033-17


“abandon[] the Rules of Criminal Procedure based on the ‘potential for a

meritorious PCRA claim’ . . . .” Id. at 28.

      The Commonwealth’s arguments are compelling. We do not condone

the late consideration of Appellee’s suppression motion, and we are

constrained to find that the trial court erred in entertaining it.

      Under Pa.R.Crim.P. 581(B), the defendant shall file suppression
      issues within an omnibus pretrial motion. “The motion shall
      state specifically and with particularity the evidence sought to be
      suppressed, the grounds for suppression, and the facts and
      events in support thereof.” Pa.R.Crim.P. 581(D). Thus, “the
      rule is designed to provide one single procedure for the
      suppression of evidence.”        Rule 581, official comment.      A
      defendant may file supplemental motions to suppress, but only
      “unless the opportunity did not previously exist, or the interests
      of   justice    otherwise     require.”         Pa.R.Crim.P. 581(B);
      Commonwealth v. Micklos, 448 Pa. Super. 560, 672 A.2d 796,
      802 (1996). “The ‘interests of justice’ exception provides a trial
      judge with discretion to excuse a party’s tardy presentation of a
      suppression motion.” Id. We review the court’s decision on
      these matters for an abuse of discretion. Id. An abuse of
      discretion is not a mere error of judgment. Rather, it exists
      where the judge acts manifestly unreasonably, misapplies the
      law, or acts with partiality, bias, or ill will. Id. at 803.

Commonwealth v. Johonoson, 844 A.2d 556, 560–561 (Pa. Super. 2004)

(footnote omitted).

      Furthermore, under Pa.R.Crim.P. 579, an omnibus pretrial motion

must be filed within thirty days of arraignment. The only exceptions to this

rule are: (1) the opportunity to do so did not exist, (2) the defendant or

defense counsel was unaware of the grounds for the motion, or (3) the time

for filing was extended by the court for good cause shown.           Pa.R.Crim.P.




                                      - 18 -
J-A14033-17


579(A); Commonwealth v. Borovichka, 18 A.3d 1242, 1248 (Pa. Super.

2011).

       Examining the exceptions of Pa.R.Crim.P. 579(A), it is clear that none

is applicable.     Appellee had the opportunity to file, and indeed, did file

multiple and various pretrial motions.         N.T., 3/22/16, at 5 (“[T]he [c]ourt

would note that you have done extensive research in this case and have

presented various motions to this [c]ourt which we did hear pretrial.”). Most

recently, counsel had filed the aforementioned motion in limine. Thus, the

opportunity to file the motion did exist; significantly, counsel has not averred

a lack of opportunity to do so. Regarding a lack of awareness of the grounds

for the motion, portions of the record highlighted supra reveal the incredulity

of the trial court regarding counsel’s failure to present a timely suppression

motion, especially in light of counsel’s presentation of the earlier motion in

limine that dealt with the exact evidence. Counsel, instead, proclaimed he

had done “a little bit of extra research and found this case[, Dunnavant I,

63 A.3d 1252,] which I was not aware of before.” N.T., 3/22/16, at 6. Now,

on appeal, counsel8 explains, “It was a mistake, nothing more, nothing less.

Mistakes happen . . . .” Appellee’s Brief at 4. Counsel’s “mistake,” however,

does not equate to a defendable “lack of awareness” as encompassed by

Rule 579(A).      Finally, regarding the third exception, there has been no

____________________________________________


8   New counsel represents Appellee on appeal.



                                          - 19 -
J-A14033-17


assertion, and the record does not reveal, that the trial court extended the

time for filing an omnibus pretrial motion.

      The trial court’s sole reason for addressing the untimely suppression

motion was its observation “that the potential for a meritorious [PCRA] claim

based on counsel’s deficient performance in failing to research and

file a timely suppression motion required this [c]ourt, in the interests of

justice, to permit the untimely filing . . . .” Trial Court Opinion, 8/12/16, at

unnumbered 3–4 (emphasis added).               While such reason appeals to this

Court’s ongoing concern regarding the interests of judicial economy, we do

not find that it meets the criminal procedural rule’s concern for the interest

of justice.

      We agree with the Commonwealth that the trial court’s departure from

the rules of criminal procedure based on “the potential for a meritorious

[PCRA] claim” deprived the Commonwealth of its ability to address such

claims   in   the   “proper   setting    under    the   established   ineffectiveness

standards.”         Trial   Court   Opinion,      8/12/16,   at   unnumbered      3;

Commonwealth’s Brief at 28. In the context of the PCRA, a petitioner must

prove more than merely the arguable merit of an unfiled suppression claim

when seeking collateral relief.         Commonwealth’s Brief at 28; see, e.g.,

Commonwealth v. Watley, 153 A.3d 1034, 1040 (Pa. Super. 2016) (To

attain relief from ineffective assistance of counsel, PCRA petitioner must

demonstrate that: “(1) the underlying substantive claim has arguable merit;


                                         - 20 -
J-A14033-17


(2) counsel whose effectiveness is being challenged did not have a

reasonable basis for his or her actions or failure to act; and (3) the petitioner

suffered prejudice as a result of counsel’s deficient performance”), appeal

denied, 2017 WL 2538785, 69 MAL 2017 (Pa. filed June 12, 2017).

Moreover, as the Commonwealth suggests, the trial court’s action absolved

Appellee of the applicable burdens of proof and persuasion that are born in

the PCRA context.        See, e.g., Commonwealth v. Jones, 596 A.2d 885,

888–889 (Pa. Super. 1991) (“[T]he reasonableness of trial counsel’s actions

is a prong of the ineffective assistance of counsel claim which must be

proven and not merely rebutted.”).             We endorse the Commonwealth’s

contention that this Court will not permit defense counsel to “use the PCRA

as a shield from [his] admitted negligence.” Commonwealth’s Brief at 30.

        Furthermore, and significantly, this case does not involve only an

untimely motion to suppress.       It encompasses a motion to suppress filed

after   a   jury   has   been   sworn    and     double   jeopardy   has   attached.

Commonwealth v. Vargas, 947 A.2d 777, 780 (Pa. Super. 2008) (“In

Pennsylvania, jeopardy does not attach and the constitutional prohibition

against double jeopardy has no application until a defendant stands before a

tribunal where guilt or innocence will be determined. In a criminal jury trial,

jeopardy attaches when the jury is sworn.”) (citation omitted). As such, the

grant of suppression impaired the Commonwealth’s right to appeal the order

in that a manifest necessity had to be found by the trial court. Thus, the


                                        - 21 -
J-A14033-17


suppression motion risked the Commonwealth’s right to appeal. While the

trial court instantly found a manifest necessity for a mistrial, that decision

was discretionary. Commonwealth v. Walker, 954 A.2d 1249, 1254 (Pa.

Super. 2008) (It is within a trial judge’s discretion to declare a mistrial sua

sponte upon the showing of manifest necessity, and appellate court will not

disturb the decision absent an abuse of that discretion).

      There was no legitimate and compelling reason why Appellee could not

have located and proffered Dunnavant I at the pretrial hearing addressing

his motion in limine.    See Johonoson, 844 A.2d at 561 (explaining that

because the circumstances were known to the appellant, he could have

proffered the basis for his untimely supplemental suppression motion at the

time of his original pretrial suppression motion; therefore the trial court

properly denied the supplemental motion as untimely).           We therefore

conclude that the trial court abused its discretion in failing to deny the

suppression motion as untimely. Furthermore, and relevant to a showing of

prejudice within the context of an ineffectiveness claim, Dunnavant I is not

directly on point.   In fact, we concluded that the trial court’s extension of

Dunnavant I cannot stand.       Thus, because Appellee sought extension of

the current law, the merits of the suppression motion were not so apparent

as to require the motion to be heard. See Commonwealth v. Williams,

323 A.2d 862, 866 (Pa. Super. 1974) (discretion to excuse the defendant’s

failure to file pretrial suppression motion should be exercised where “the


                                     - 22 -
J-A14033-17


merits of counsel’s oral motion were so apparent that justice required that it

be heard.”).    Indeed, Appellee’s argument was that the trial court should

change the existing law, which the trial court clearly recognized, as

evidenced by its initial reaction to the late motion. N.T., 3/22/16, at 7–9.

As argued by the Commonwealth, “the merits of a theory unsupported by

existing law could not be so facially meritorious as to warrant in immediate

hearing.” Commonwealth’s Brief at 28 (emphasis added). The suppression

court’s sole basis for its decision—the avoidance of a potential collateral

claim—did      not   warrant   abandonment      of   the   time   requirement   of

Pa.R.Crim.P. 578, especially because double jeopardy had attached.

      Order     reversed;    case   remanded    to   the   common   pleas   court;

jurisdiction relinquished.

      P.J.E. Bender files a Concurring Memorandum.

      Judge Bowes files a Concurring & Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




                                       - 23 -
