J-S49014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                     v.

CARSLIE WALI JONES, III,

                           Appellant                 No. 2031 MDA 2014


         Appeal from the Judgment of Sentence October 27, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0002535-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED SEPTEMBER 04, 2015

     Appellant, Carslie Wali Jones, III, appeals from the judgment of

sentence of an aggregate term of 2½-12 years’ incarceration, following his

conviction of two counts of possession with intent to deliver a controlled

substance (PWID).     Appellant presents two claims for our review.      First,

Appellant contends the trial court erred when it dismissed his suppression

motion as untimely.       Second, Appellant argues the trial court erred when,

during voir dire, it sua sponte excused two jurors for cause without

permitting Appellant the opportunity to rehabilitate them.       After careful

review, we affirm.

     For purposes of this appeal, a short summary of the pertinent facts

related to Appellant’s charges will suffice. On May 16, 2013, Appellant was

driving a blue Monte Carlo on the Pennsylvania Turnpike, near the
J-S49014-15



Bowmansville State Police Barracks, when he was stopped for speeding by

Pennsylvania State Trooper Luke Straniere.          Although Appellant had

borrowed the vehicle from his cousin, Khareem Overton, Trooper Straniere

determined that the vehicle’s registration, insurance, and Appellant’s license

were otherwise in order. However, Appellant had a prior record of drug and

firearm offenses, and the vehicle’s owner was known to Trooper Straniere

for prior drug-related activity.   Consequently, Trooper Straniere asked

Appellant to speak with him outside of the vehicle, and Appellant complied.

After a brief interaction, Trooper Straniere chose not to cite Appellant, and

instead issued a warning to him for speeding. Trooper Straniere noted that

Appellant was very cooperative during this stage of their encounter and did

not appear to be anxious.

      After he was told he was free to go, Appellant began to return to his

car. However, before he reentered the vehicle, Trooper Straniere called out

Appellant’s first name and Appellant returned to speak with the Trooper.

Trooper Straniere then solicited Appellant’s consent to search his vehicle,

while reiterating that Appellant was free to go. Trooper Straniere testified

that Appellant affirmatively consented, whereas Appellant testified that no

consent was given.     In the subsequent search of the vehicle, Trooper

Straniere discovered, in the passenger’s door, a pill bottle with the label

removed. The bottle was later determined to contain 14 oxycodone pills. In

the vehicle’s trunk, Trooper Straniere discovered 700 bags of heroin.     The

aggregate weight of the heroin was later determined to be 17.1 grams.

                                    -2-
J-S49014-15



      On July 15, 2014, Appellant was convicted by a jury of two counts of

PWID. The first count, PWID (heroin), was graded as a felony. The second,

PWID (oxycodone), was graded as a misdemeanor. On October 27, 2014,

the trial court sentenced Appellant to 2-10 years’ incarceration for PWID

(heroin), and to a consecutive term of 6 months’ to 2 years’ incarceration for

PWID (oxycodone).          Thus, Appellant is currently serving an aggregate

sentence of 2½-12 years’ incarceration.

      Appellant filed a timely notice of appeal on November 26, 2014, and a

timely court-ordered Pa.R.A.P. 1925(b) statement on December 23, 2014.

The trial court issued its Rule 1925(a) opinion on January 13, 2015.

Appellant now presents the following questions for our review:

      I. Where a Motion to Suppress was filed well in advance of trial,
      discovery was not complete until the date trial began, the
      Commonwealth was not opposed to the late-filed Motion, and
      the court held a full suppression hearing, did the interests of
      justice and [Appellant’s] constitutional rights, pursuant to the
      Sixth and Fourteenth Amendments to the United States
      Constitution, and Article I, Section Nine of the Constitution of the
      Commonwealth of Pennsylvania, require that the court issue a
      ruling on the merits of the motion, rather than dismiss it as
      untimely?

      II. Did the trial court err in sua sponte excusing jurors 94 and
      131 for cause, over the objection of defense counsel, after
      refusing to permit defense counsel to ask any questions of the
      jurors regarding their affirmative answer to the question of
      whether they had any moral, religious or conscientious scruples
      against sitting as a juror?

Appellant’s Brief, at 5.

      Appellant’s first claim concerns the denial of his motion to suppress

the seized contraband, to which we apply the following standard of review:

                                      -3-
J-S49014-15


     Our standard of review in addressing a challenge to the denial of
     a suppression motion is limited to determining whether the
     suppression court's factual findings are supported by the record
     and whether the legal conclusions drawn from those facts are
     correct.   Because the Commonwealth prevailed before the
     suppression court, we may consider only the evidence of the
     Commonwealth and so much of the evidence for the defense as
     remains uncontradicted when read in the context of the record
     as a whole. Where the suppression court's factual findings are
     supported by the record, we are bound by these findings and
     may reverse only if the court's legal conclusions are erroneous.
     Where, as here, the appeal of the determination of the
     suppression court turns on allegations of legal error, the
     suppression court's legal conclusions are not binding on an
     appellate court, whose duty it is to determine if the suppression
     court properly applied the law to the facts.           Thus, the
     conclusions of law of the courts below are subject to our plenary
     review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citations and

quotation marks omitted).

     Instantly, the trial court denied Appellant’s suppression motion as

untimely. Pa.R.Crim.P 581 provides that the defense “may make a motion

to the court to suppress any evidence alleged to have been obtained in

violation of the defendant's rights.”    Pa.R.Crim.P 581(A).   Rule 581(B)

provides:

     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.

Pa.R.Crim.P 581(B).




                                   -4-
J-S49014-15



      The timeliness of a motion to suppress is governed by Rule 579, which

sets forth the time for filing an omnibus pretrial motion pursuant to Rule

578. Rule 579(A) dictates that:

      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). Furthermore, the comment to Rule 579 instructs that

“[c]ontemplated within the concept of cause shown is a finding by the court

that discovery has not been completed, or a bill of particulars has not been

furnished, or that contested motions for discovery or for a bill of particulars

are pending.” Pa.R.Crim.P. 579 (Comment).

      Here, Appellant contends that trial court erred in denying his

suppression motion as untimely because 1) the Commonwealth did not

object to the timeliness of the motion; 2) the Commonwealth did not allege

any prejudice due to the late-filed motion; and 3) discovery had not been

completed. See generally Appellant’s Brief, at 25. The trial court rejected

each of these arguments, stating:

      [Appellant]'s suppression motion was filed only after the second
      trial certification and nearly 9 months after [his] arraignment,
      rendering it 8 months late. [Appellant] never asked the Court
      for a filing extension under Rule 579(B). When directly asked
      why the late motion should not be denied as untimely,
      [Appellant] argued that the parties were trying to resolve the
      case to avoid the need for trial or a suppression motion; when
      that effort failed, the Commonwealth was aware of the basis for


                                     -5-
J-S49014-15


      the suppression motion; discovery was on-going when the
      motion was filed; no party suffered hardship by the late filing;
      and the motion raises a colorable claim. In other words, he
      offered absolutely no legitimate justification to excuse the delay.
      Notably, he did not contend that he could not have filed an
      earlier motion. Rather, his position amounted to an assertion
      that the interests of justice require the Court to consider the late
      filing because [Appellant] simply chose not to file it while he was
      negotiating with the Commonwealth and discovery remained on-
      going. I could not accept [Appellant]'s position. Doing so would
      have been tantamount to completely disregarding the clearly
      enumerated filing period and the explicit requirement that
      suppression issues shall be deemed waived if not timely asserted
      under circumstances in which such disregard would have been
      based solely on a party's preference to wait and see what may
      occur as the case unfolds instead of filing a known suppression
      issue within the mandated timeframe. This I will not do. The
      "interests of justice" did not support tolerance of such a late
      filing, especially in the context of the ordinary procedural
      circumstances of the case.

Trial Court Opinion (TCO), 1/13/15, at 12-13.

      Contrary to the trial court’s statement, Appellant did offer at least one

potential justification for the late-filing of his suppression motion—a delay in

the filing of discovery.    The comment to Rule 579 clearly indicates that

delays in discovery may provide a trial court with “cause shown” to justify

extension of the 30-day filing deadline. Nevertheless, Appellant never filed

for an extension of the filing deadline, and he fails to argue why the delayed

discovery materials were pertinent to his untimely suppression motion.

Indeed, Appellant concedes that the tardy discovery materials were “barred

from trial because defense counsel had not had an opportunity to prepare to

challenge it at trial.” Appellant’s Brief, at 25.




                                       -6-
J-S49014-15



      Thus, while Rule 579 contemplates that a delay in discovery may

justify a late-filed suppression motion, not every delay in discovery will

overcome the 30-day deadline.         It is self-evident that an untimely

suppression motion will not be excused when it does not seek the exclusion

of the delayed discovery materials or where a defendant fails to plausibly

allege that the delay in discovery hindered the defense’s ability to raise the

suppression claim.   Here, Appellant’s untimely suppression motion did not

depend on the content of tardy discovery materials, nor did it seek their

exclusion. Indeed, Appellant’s untimely suppression motion was filed before

the tardy discovery materials came to light, and those materials were

excluded from trial in any event.    Accordingly, we conclude that the trial

court did not err when it denied Appellant’s suppression motion as untimely

and, therefore, waived. See Pa.R.Crim.P. 581(B) (“If timely motion is not

made hereunder, the issue of suppression of such evidence shall be deemed

to be waived.”).

      Next, Appellant claims the trial court erred when it sua sponte excused

jurors 94 and 131 for cause.        The jurors were excused due to their

affirmative answers to the question, “Do any of you have any moral,

religious[,] or conscientious scruples against sitting as a juror in this case

and passing judgment upon the guilt or innocence of the defendant on the

charges made?”     N.T., 7/14/14, at 25.   Appellant complains that defense

counsel was not permitted to ask follow-up questions of the two excluded

jurors to determine “whether the[ir] moral objection to serving on a jury

                                    -7-
J-S49014-15



involved all jury service, or only those cases where, for example, the death

penalty was being sought.” Appellant’s Brief, at 43. The trial court rejected

defense counsel’s request to potentially rehabilitate the jurors through

further questioning, because the court did not want the prospective jurors to

be “‘treated as hostile witnesses’ with further probing into their religious

beliefs.” TCO, at 22 (quoting Commonwealth v. Johnson, 305 A.2d 5, 8

(Pa. 1973)). In this regard, the trial court noted that:

      Both individuals were women wearing bonnets indicative of the
      Mennonite faith, and they unequivocally and credibly asserted
      their religious, moral, and/or conscientious beliefs that, by all
      appearances, were genuine. In Lancaster County, it is common
      for individuals of such faith to state that they have scruples
      against sitting in judgment of others as a juror and to answer
      the question[] at issue here in the affirmative.

TCO, at 22.

      Our Supreme Court has “repeatedly stated that the purpose of voir

dire is to ensure the empaneling of a fair and impartial jury capable of

following the instructions on the law as provided by the trial court.”

Commonwealth v. Paolello, 665 A.2d 439, 450 (Pa. 1995). It is not the

purpose of voir dire examination to provide a defendant “with a better basis

upon which to utilize his peremptory challenges[.]”        Commonwealth v.

England, 375 A.2d 1292, 1295 (Pa. 1977).             Moreover, “the right of

peremptory challenge is not of itself a right to select but a right to reject

jurors.” Commonwealth v. Brown, 23 Pa. Super. 470, 498 (1903).

      Pennsylvania Rule of Criminal Procedure 631 governs the voir dire of

potential jurors. Rule 631(D) provides, in pertinent part, that: “The judge

                                     -8-
J-S49014-15



may permit the defense and the prosecution to conduct the examination of

prospective jurors or the judge may conduct the examination. In the latter

event, the judge shall permit the defense and the prosecution to supplement

the examination by such further inquiry as the judge deems proper.”

Pa.R.Crim.P. 631(D).

      In Johnson, supra, the defense argued that it was “an abuse of

discretion for the trial court to deny him the opportunity to examine

prospective jurors as to their ability to accept and apply the law” after those

prospective   jurors   indicated   their   fixed   biases   against    psychiatrists,

psychiatric testimony, and the use of alcoholic beverages.            Johnson, 305

A.2d at 8. Our Supreme Court rejected this claim, holding:

      We do not believe that the trial court abused its discretion by
      refusing to allow defense counsel to probe into this area. The
      court had already specifically instructed every member of the
      panel that they must accept the law as given to them by the
      court and then apply that law to the facts. When asked, no
      member of the panel expressed any doubt as to his or her ability
      to accept and apply the law.

             We do not believe that prospective jurors should be
      treated as hostile witnesses; nor do we assume that they have
      failed to be completely candid with the court in responding to
      questions. Where the response has been unequivocal there is no
      basis for further inquiry.

Id. at 8-9.

      In the instant case, before the objections of jurors 94 and 131 came to

light, the trial court asked all prospective jurors whether they had “any

doubts or reservations about [their] willingness to accept and apply the law

as I instruct you in it.” N.T., 7/14/14, at 26. No member of the jury pool

                                       -9-
J-S49014-15



indicated any such doubt or reservations. Id. The trial court also asked the

prospective jurors whether any of them had “any reason why, if you’re

selected to be a juror in this case, you could not give both the defendant and

the Commonwealth a completely fair trial.” Id. Again, no prospective jurors

indicated an inability in that regard.

      Thus, as was the case in Johnson, jurors 94 and 131 both indicated

their willingness to act impartially and follow the trial court’s instructions.

Further examination of jurors 94 and 131 in such matters would likely place

them in the position of being treated as hostile witnesses. Moreover, there

was no reason for the trial court to doubt the religious and/or moral

objections of jurors 94 and 131, if they are to be afforded, consistent with

our nation’s principles regarding religious freedom, the most rudimentary

deference in regard to those beliefs.

      Furthermore, Appellant has not presented a single case for our

consideration wherein a criminal defendant was awarded a new trial after

successfully challenging the exclusion of prospective jurors due to the jurors’

religious or moral objection(s) to serving on a jury. Certainly, a prosecutor’s

use of peremptory challenges to excluded jurors of the same race as a

defendant may warrant relief on equal protection grounds. See Batson v.




                                         - 10 -
J-S49014-15



Kentucky, 476 U.S. 79 (1986).           However, Appellant’s claim is not remotely

analogous to the issues that arose in Batson.1

       The only case cited by Appellant to support his claim for relief is

Commonwealth v. Shirley, 481 A.2d 1314 (Pa. Super. 1984), overruled

on other grounds, Commonwealth v. Anderson, 550 A.2d 807 (Pa. Super.

1988).     However, Shirley involved a situation whereby the defendant was

forced to proceed with jury selection in the absence of counsel, who was

trying another case, in a different county, on the day voir dire was

scheduled. The Shirley Court held the trial court violated Shirley’s Sixth

Amendment right to counsel when it denied Shirley’s request to postpose

jury selection due to his defense counsel’s absence, and by forcing him to

represent himself during the selection process. Therefore, Shirley did not

involve the scope of Appellant’s right to question jurors during voir dire but,

instead, the ancillary matter of a defendant’s right to counsel during jury

selection.    Thus, the holding in Shirley has no bearing on the instant

matter, nor does it provide any substantial persuasive authority.

____________________________________________


1
   Plainly, Batson is distinguishable as the instant case implicates the
religion, rather than the race, of the excluded jurors.        However, the
differences do not end there.        Batson challenges typically involve a
prosecutor’s use of peremptory challenges, whereas here, the trial court
acted sua sponte in excluding jurors 94 and 131. Moreover, Batson held
that the nature of the equal protection violation was the purposeful exclusion
of members of the defendant’s race from the jury. Here, there is no
evidence of record, nor even an allegation, that jurors 94 and 131 shared
Appellant’s religious beliefs.



                                          - 11 -
J-S49014-15



       The nature of Appellant’s claim is that jurors 94 and 131 may have

been unnecessarily excluded from his jury, and that he was denied an

opportunity to rehabilitate them after they indicated their religious or moral

objection to serving on a criminal jury. However, to this Court’s knowledge,

Appellant has neither a ‘right’ nor ‘privilege’ to include potential jurors of his

choosing, apart from the protections that arise under Batson.2 A defendant

has a right to challenge and exclude potential jurors for the purpose of

empaneling a fair and impartial jury.          However, there is no corresponding

right to select or rehabilitate jurors. Brown, supra.

       Consequently, we find no basis for Appellant’s claim of relief. We are

not presented with an argument that Appellant’s jury was potentially tainted

by the presence of a biased juror, as the potential jurors at issue in this case

did not ultimately serve on Appellant’s jury. In any event, Appellant has not

articulated how he was prejudiced by their absence, and this matter does

not appear remotely analogous to those cases wherein the exclusion of

jurors or a class of jurors has been recognized as violative of an established

right. Rule 631 does permit Appellant to “supplement the examination [of

potential jurors] by such further inquiry as the judge deems proper.”

Pa.R.Crim.P. 631(D). However, for the foregoing reasons, we find no basis
____________________________________________


2
  To be clear, the right that arises under Batson is the right to not have
jurors arbitrarily excluded on the basis that they are of the same race as the
defendant. A right to ‘not have excluded’ a class of jurors is not at all
synonymous with a right to ‘include’ specific jurors.



                                          - 12 -
J-S49014-15



upon which to conclude that the trial court erred in deeming improper any

further inquiry into the religious or moral objections of jurors 94 and 131.

Thus, Appellant’s second claim also lacks merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/4/2015




                                    - 13 -
