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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

OLIVER NELSON

                            Appellee                  No. 3189 EDA 2013


                    Appeal from the Order October 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000541-2013


COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

HAYWOOD DYSON

                            Appellee                  No. 3229 EDA 2013


                    Appeal from the Order October 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0000540-2013


BEFORE: PANELLA, J., OLSON, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                             FILED MARCH 24, 2015

        Appellant, the Commonwealth of Pennsylvania, appeals from the order

granting suppression of evidence to co-defendants and Appellees,1 Oliver

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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Nelson and Haywood Dyson. After careful review, we reverse and remand

for further proceedings.

      Due to the unusual procedural context of this appeal, the following

factual background consists entirely of the allegations contained in the

affidavit of probable cause for search and seizure warrant “#169788.” Early

in the morning of December 8, 2012, Officer Raudenbush of the Philadelphia

Police Department observed a white pick-up truck with an extension and

black rims pull into an A-Plus gas station. He watched as the driver, a black

male, left his vehicle and walked to the store and then stopped, returned to

behind his vehicle, then walked back the store. While in the store, the driver

purchased two soft pretzels and then left.

      Officer Raudenbush left the scene in response to another call, but

returned a short while later to review the security footage of the incident. In

the video, he observed the suspect remove an object from the waist of his

pants while walking to the store.           The suspect then stopped, walked back

behind his vehicle, and returned the object to the waist of his pants. He also

observed the presence of a possible lookout in the parking lot of the station

while the suspect was in the store.               After reviewing the video, Officer

Raudenbush informed dispatch that an approximately 6’3”, 250 pound bald

                       _______________________
(Footnote Continued)
1
  As these appeals are from the same order, involve the same issue, and
have substantially identical procedural histories, we have consolidated them
sua sponte.



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black male wearing a grey “Sean John” sweat shirt, driving a white pick-up

truck, was possibly armed with a handgun.

      Shortly thereafter, a nearby Sunoco gas station was nearly robbed. A

review of the security video from the station revealed that a tall, bald black

male wearing a grey “Sean John” jacket brandishing what appeared to be a

handgun while walking into the gas station. Upon observing the presence of

a marked police vehicle at the station, the suspect placed the gun back in his

pants and re-entered his vehicle, a white Ford F150 with an extended cab

and black rims.

      Late in the evening of December 8, 2012, Officer Anthony Washington

viewed the surveillance video from the attempted robbery of the Sunoco

station.   Shortly after viewing the video, Officer Washington observed a

white Ford F150 with an extended cab and black rims not far from the

Sunoco station. Officer Washington and his partner activated their marked

vehicle’s lights and siren to pull over the pick-up truck. The driver did not

pull over, and instead accelerated away, ignoring all traffic control signals.

      Eventually, police were able to stop the truck, but the driver, Dyson,

fled on foot. He was ultimately apprehended shortly thereafter. The front-

seat passenger, Nelson, was found to possess 97 pills containing oxycodone,

a controlled substance.     Further narcotics and drug paraphernalia were

found inside the pick-up truck.




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       Both Dyson and Nelson were charged with possession of controlled

substances with intent to deliver, fleeing or eluding an officer, and

possession of controlled substances.             Dyson filed a motion to compel

production of the video surveillance tapes, and on July 29, 2013, the

suppression court ordered the Commonwealth to produce the tape.

However, the police did not possess a copy of the tape, and the

Commonwealth had nothing to produce.

       Both Dyson and Nelson moved to dismiss the charges against them on

the basis of an alleged discovery violation. The suppression court indicated

that suppression, rather than dismissal, might be the appropriate motion for

the defendants to file, and requested that they file a written suppression

motion before the next hearing. No such suppression motion was filed.

       At the next hearing, the Commonwealth appeared, prepared to litigate

the motion to dismiss.         However, the suppression court focused on the

suppression issue, and when the                Commonwealth did not have      the

appropriate witnesses available to litigate the suppression order, the court

ordered that evidence be suppressed.2            The Commonwealth then filed this

timely appeal.3

____________________________________________


2
  It is not entirely clear from the record what evidence was suppressed. As
the suppression court concluded that the officers did not have probable
cause to pull over the white pick-up truck, we presume that the suppression
court intended to suppress all physical evidence found on the defendants as
well as in the vehicle.
(Footnote Continued Next Page)


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      On appeal, the Commonwealth argues that the suppression court erred

in granting suppression of the evidence. This argument takes several forms,

but we need only address the first. The Commonwealth contends that it had

no burden of proof on suppression issues, as the defendants did not comply

with the specificity requirements of Pa.R.Crim.P., Rule 581(D).

      “Rule 581(D) requires that a motion seeking suppression state

specifically and with particularity the evidence sought to be suppressed, the

grounds for suppression, and the facts and events in support thereof.”

Commonwealth v. Dixon, 997 A.2d 368, 374 (Pa. Super. 2010) (en banc)

(internal quotation marks omitted).               The Commonwealth’s burden to

establish that the evidence was not obtained in violation of the defendant’s

rights is not triggered unless the defendant’s motion to suppress complies

with the requirements of Rule 581(D).             See id., at 376.   “In the extreme

case, a complete failure to comply with the specificity requirements of Rule

581(D) will result in waiver, as those requirements have been held to be

mandatory.” Id. (citations omitted).


                       _______________________
(Footnote Continued)


3
  A Commonwealth appeal in a criminal case is governed by Pennsylvania
Rule of Appellate Procedure 311, which permits the Commonwealth to take
an interlocutory appeal as of right from a pretrial suppression order when
the Commonwealth certifies that the order will “terminate or substantially
handicap the prosecution.” Pa.R.A.P. 311(d); Commonwealth v. Dugger,
506 Pa. 537, 486 A.2d 382 (1985). The Commonwealth has complied with
these requirements in both appeals.



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      Here, the suppression court directed defense counsel to file a

suppression motion to “put the DA on notice.”     N.T., 10/11/13, at 10-11.

There is no indication in the record that any defense counsel filed such a

motion. Furthermore, the Commonwealth, in its appellate brief, asserts that

no motion was filed. See Appellant’s Brief re: Nelson, at 21.

      At the next hearing, the suppression court granted suppression of the

items, as it concluded that the Commonwealth had sufficient notice of its

intent to litigate the suppression issue. We disagree. In the absence of any

motion, written or oral, defining the issues to be litigated, we cannot

conclude that the defendants even partially complied with Rule 581(D). The

suppression court’s statements at the October 11, 2013 hearing only

indicated that suppression would be at issue, and that defense counsel were

to identify the precise contours of the issue. This was simply not enough to

trigger the burdens imposed upon the Commonwealth under Rule 581(H).

Thus, both Dyson and Nelson have waived any suppression issue and the

suppression court erred in granting suppression of evidence. We therefore

reverse the suppression court’s order and remand for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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