J-S25024-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    LUIS VILLACORTA,                            :
                                                :
                      Appellant                 :   No. 939 EDA 2016

                    Appeal from the Order February 29, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0005228-2015


BEFORE:      BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.:                                   FILED JUNE 13, 2017

        Appellant, Luis Villacorta, appeals from the order entered February 29,

2016 denying his petition for writ of certiorari in the Philadelphia Court of

Common Pleas.        In the petition, Appellant asserted that the Philadelphia

Municipal Court erroneously denied his motion to suppress narcotics

evidence seized from his person.               We remand for further proceedings,

including entry of findings of fact and conclusions of law by the Municipal

Court.

        In February 2015, Appellant was arrested and charged with intentional

possession of a controlled substance.1              In December 2015, before the

Honorable Joyce O. Eubanks, Appellant argued a motion to suppress physical


____________________________________________


1
    35 P.S. § 780-113(a)(16).
J-S25024-17



evidence, namely, narcotics recovered in conjunction with the arrest. In the

motion, Appellant averred that police lacked reasonable suspicion or

probable cause to justify a protective frisk of Appellant and that the frisk

exceeded the permissible bounds of a protective frisk.           A suppression

hearing was held that same day, and the court held the motion to suppress

under advisement.        According to the docket, at the next court listing, the

Municipal Court denied Appellant’s motion to suppress. However, the notes

of testimony are devoid of any discussion of the resolution of the motion and

no findings of fact or conclusions of law are present in the certified record.2

At the listing, the Appellant was found guilty of intentional possession of a

controlled substance and sentenced to twelve months of reporting probation.

       Thereafter, in January 2016, Appellant filed a petition for writ of

certiorari in the Court of Common Pleas, arguing that the Municipal Court

erroneously decided the motion to suppress. In February 2016, the Court of

Common Pleas denied Appellant’s petition. Appellant timely filed a notice of

appeal and a court-ordered Pa.R.A.P. 1925(b) statement. In July 2016, the

Court of Common Pleas issued a responsive opinion.

       On appeal, Appellant raises the following issue for our review:



____________________________________________


2
  The docket entry of December 11, 2015, the apparent date that the
suppression motion was resolved, reads in relevant part, “Motion to suppress
is DENIED. Defendant is found guilty of possession of a controlled
substance.”



                                           -2-
J-S25024-17


      1. Did not the trial court err in denying Appellant’s motion to
      suppress, as the police officer’s actions were in violation of the
      4th and 14th Amendments to the United States Constitution, as
      well as the broader protections of Article I, Section 8 of the
      Pennsylvania Constitution, in that the officer lacked reasonable
      suspicion and probable cause to justify Appellant’s detention,
      frisk, arrest, or search, and, more specifically, that he lacked
      reasonable suspicion justifying any protective frisk in the course
      of a traffic stop, and that the frisk performed exceeded the
      acceptable grounds of protective frisk and/or the plain feel
      doctrine?

Appellant’s Brief at 3.

      Consistent with our opinion in Commonwealth v. Neal, 151 A.3d

1068, 1070 (Pa. Super. 2016), because Judge Eubanks failed to enter

findings of fact or conclusions of law, we remand the case with instructions

for Judge Eubanks to enter these findings and conclusions.

      In Neal, we concluded:

      In prior decisions, when courts of common pleas have denied
      suppression motions without entering findings of fact and
      conclusions of law, we have vacated the order denying
      suppression and remanded with instructions for the suppression
      judge to enter findings of fact and conclusions of law. The same
      remedy should apply when the Municipal Court denies a
      suppression motion and the defendant subsequently files a
      petition for writ of certiorari in the Court of Common Pleas of
      Philadelphia County. Just as this Court cannot perform appellate
      review of a common pleas order denying a suppression motion
      until the common pleas court enters findings of fact and
      conclusions of law, neither can the Court of Common Pleas of
      Philadelphia County perform appellate review of a Municipal
      Court order denying a suppression motion until the Municipal
      Court enters findings of fact and conclusions of law.

Neal, 151 A.3d at 1071 (internal citations omitted).




                                    -3-
J-S25024-17


      Accordingly, as the Municipal Court failed to enter findings of fact and

conclusions of law into this record, we order the following:

      (1) The order denying Appellant's petition for writ of certiorari is

vacated;

      (2) This case is remanded to the Philadelphia Court of Common Pleas

with instructions to remand the case to the Municipal Court with instructions

that Judge Eubanks enter findings of fact and conclusions of law;

      (3) Following entry of findings of fact and conclusions of law, the

Philadelphia Court of Common Pleas shall reconsider Appellant's petition for

writ of certiorari by reviewing the evidentiary record in accordance with the

standards articulated in Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.

2010) (outlining the standard of appellate review of orders denying motions

to suppress) and In re L.J., 79 A.3d 1073, 1087 (Pa. 2013) (noting that the

scope of review from a suppression ruling is limited to the evidentiary record

created at the suppression hearing); and

      (4) We relinquish jurisdiction.

      Order denying Appellant's petition for writ of certiorari vacated. Case

remanded for proceedings consistent with this memorandum.

      Jurisdiction relinquished.




                                        -4-
J-S25024-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




                          -5-
