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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :      IN THE SUPERIOR COURT OF
                                           :            PENNSYLVANIA
                     v.                    :
                                           :
KALVIN WILLIAMS,                           :           No. 362 EDA 2015
                                           :
                          Appellant        :


           Appeal from the Judgment of Sentence, January 12, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0004791-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                 FILED FEBRUARY 03, 2016

        Kalvin Williams appeals the January 12, 2015 judgment of sentence

resulting from his convictions for DUI:        controlled substance or metabolite

first offense.1 We affirm.

        The trial court provided the following facts and procedural history:

                    This case was originally tried in Philadelphia
              Municipal Court. Prior to the municipal court trial,
              Appellant moved to Suppress Physical Evidence. At
              the suppression hearing, Appellant argued that he
              was stopped, seized, and searched without
              reasonable suspicion or probable cause and as a
              result of that, anything that he said, any physical
              evidence, any observations of him, should be
              suppressed as fruit of the poisonous tree. Appellant
              sought to preclude the admission of the officer’s
              observations of his physical appearance and smell
              emitting from his vehicle, as well as the results of
              the seizure analysis and blood tests that were taken.

1
    75 Pa.C.S.A. § 3802(d)(1).
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                 The evidence presented at the Suppression
          Hearing established that on July 29, 2011 a DUI
          checkpoint was set up at 401 E. Allegheny Avenue
          because statistics gathered and used by the police
          department showed that from 2007 to 2009 this
          location was number one in the City of Philadelphia
          for DUI incidents. In response to the vast number of
          DUI incidents, on July 29, 2011, neon signs
          measuring approximately six feet by eight feet were
          erected on Allegheny Avenue, alerting civilians of the
          upcoming checkpoint. If a driver wanted to avoid
          the checkpoint, they had the option to turn North on
          Third Street or North on Fifth Street without
          repercussion.

                At approximately 11:00 p.m., Police Officer
          John Zirilli and his partner, Officer Jeffrey Hannan,
          while working the checkpoint, observed Appellant
          drive his maroon 1999 Nissan Ultima [sic] up to the
          checkpoint and stop when told to stop. Officer Zirilli,
          who was posted on the driver’s side of the vehicle,
          had a brief conversation with Appellant. Officer Zirilli
          noticed that the Appellant had blood shot eyes,
          smelled of marijuana (like burnt marijuana on his
          clothing), and saw what he thought was a burnt
          blunt in the ashtray. Officer Zirilli testified that [he]
          knew Appellant was under the influence of marijuana
          because when he was asked to step out of his
          vehicle, Officer Zirilli observed Appellant to have a
          sway (unsteady balance) to his walk. Officer Zirilli
          had made approximately several hundred DUI
          arrests in the past and was familiar with the smell of
          marijuana.      He is SFST certified and A-ROD,
          recognition of drugs and alcohol certifi[ed].

                Police Officer Jeffrey Hannan testified that he
          was on the passenger side of the vehicles stopped at
          the checkpoint. Officer Zirilli signaled to him that he
          was taking Appellant out of his vehicle for a field
          sobriety test so Officer Hannan moved around to the
          driver’s side of the vehicle to park the vehicle.
          Officer Hannan smelled marijuana in the vehicle as
          he was parking it. Once he parked the vehicle, he


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           went over to where Appellant was and administered
           three tests:    (1) a “walk and turn” test which
           Appellant failed, (2) a “one-leg stand” test which
           Appellant failed, and (3) a “horizontal gage and
           stagger” test which he also failed.

                 In summary, the Suppression Court found []
           the testimony of the police officers credible. In light
           of the testimony presented, the DUI checkpoint
           complied    with     the     necessary      procedural
           requirements to render it constitutional. Moreover,
           there was reasonable suspicion to conduct a field
           sobriety test when the officer smelled burnt
           marijuana and observed Appellant’s bloodshot eyes.

                  The Suppression Court denied the Motion to
           Suppress.     Thereafter, on December 20, 2013,
           Appellant proceeded to trial before the Honorable
           James DeLeon and was found guilty of DUI. On
           April 24, 2014, Appellant was sentenced to a term of
           72 hours to six (6) months of incarceration and a
           consecutive six month term of probation. Appellant
           filed an appeal in the Court of Common Pleas
           seeking a trial de novo . . . .

Trial court opinion, amended 6/10/15 at 2-4.

                  A waiver trial was conducted before this court
           on November 11, 2014. At the conclusion of trial,
           the Defendant was found guilty of DUI: Controlled
           Substance or Metabolite 1st Offense. He was found
           not guilty of DUI: Controlled Substance Impaired
           Ability - 1st Offense. Prior to sentencing, a Court
           Reporting Network (CRN) Evaluation was ordered.

                 On January 12, 2015, the Defendant was
           sentenced to a mandatory 72 hours followed by a
           concurrent term of six (6) months of probation. The
           Defendant filed a Notice of Appeal that same day.
           Post-sentence motions were not filed.            On
           February 18, 201[5], after receiving the notes of
           testimony, a Statement of Matters Complained of on
           Appeal pursuant to Pa.R.A.P. 1925(b) was ordered
           by this court. A Statement of Errors Complained of


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              on Appeal was filed on March 11, 2015. Counsel also
              filed a request for an extension of time to
              supplement the statement due to missing notes of
              testimony.

                     On March 30, 2015, this court granted
              counsel’s request and a second Statement of Matters
              Complained of on Appeal pursuant to Pa.R.A.P.
              Rule 1925(b) was ordered.           A Supplemental
              Statement of Errors Complained of on Appeal was
              filed on behalf of the Defendant on April 13, 2015.

Id. at 1-2.

      Appellant raises the following issue for our review:

              Should not the evidence against appellant have been
              suppressed where appellant was illegally stopped at
              a DUI checkpoint that did not comply with
              constitutional standards because neither the specific
              location nor the time selected for the checkpoint was
              supported by any data on DUI related arrests or
              accidents at that location, and the location was not
              chosen because it was likely to be traveled by
              intoxicated drivers?

Appellant’s brief at 3.

      Appellant’s sole issue for our review addresses the validity of the DUI

checkpoint established by the Philadelphia Police, and whether any evidence

gathered as a result of that checkpoint should be suppressed.              The

Commonwealth avers that the issue is waived because appellant failed to

litigate the issue before the trial court. (See Commonwealth’s brief at 6-7.)

We agree with the Commonwealth and find that appellant has waived the

issue for appeal.

      The Pennsylvania Rules of Appellate Procedure state the following:



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              (a)   General rule. Issues not raised in the lower
                    court are waived and cannot be raised for the
                    first time on appeal.

Pa.R.A.P. 302(a). The Rules also require an appellant to state in his or her

statement of the case, “[t]he state of the proceedings in the court of first

instance . . . at which, and in the manner at which, the questions sought to

be     reviewed     were   raised.”    Pa.R.A.P.    2117(c)(1).         See   also

Pa.R.A.P. 2119(e) (requiring the same be included in the argument section

of an appellant’s brief either directly or by cross-reference to the statement

of the case). This court has held that failure to comply with these rules will

result in the waiver of an appellant’s issue. Commonwealth v. Williams,

980 A.2d 667, 671 (Pa.Super. 2009), appeal denied, 990 A.2d 730 (Pa.

2010).

       Here, much like the defendant in Williams, appellant has failed to

include in his statement of the case a citation to the record indicating where

his issue was first raised in the trial court below. Appellant only refers to the

fact   that   a   motion   to   suppress   was   heard   before   the   Honorable

Joyce Eubanks of the Philadelphia Municipal Court. (Appellant’s brief at 4.)

Moreover, appellant did not raise the validity of the DUI checkpoint as an

issue during the suppression hearing. A review of the suppression hearing

transcript indicates that appellant’s motion to suppress evidence was limited

to whether, “pursuant to the Pennsylvania Constitution, [appellant] was

stopped and seized and searched without reasonable suspicion or probable



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cause.” (Notes of testimony, 5/7/13 at 4.) A review of the trial transcript

also indicates that appellant failed to question the validity of the DUI

checkpoint at trial.

      Therefore, we find that appellant’s issue for appeal is waived.

Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/3/2016




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