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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY WEST,

                            Appellant                 No. 879 MDA 2016


             Appeal from the Judgment of Sentence April 28, 2016
               in the Court of Common Pleas of Franklin County
              Criminal Division at No.: CP-28-SA-0000010-2016


BEFORE: OTT, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED JANUARY 05, 2017

        Appellant, Anthony West, appeals from the judgment of sentence

entered on April 28, 2016, following his non-jury conviction of driving while

operating privilege is suspended (DUS).1 For the reasons discussed below,

we affirm.

        We take the underlying facts and procedural history in this matter

from our independent review of the certified record. On November 6, 2015,

Police Officer Cole Baker of the Chambersburg Borough Police Department,

stopped a vehicle driven by Appellant for erratic driving, after he observed

him swerving out of the traffic lane and speeding.         (See N.T. Hearing,
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    75 Pa.C.S.A. § 1543(a).
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4/28/16, at 3-4). Appellant initially refused to cooperate with Officer Baker,

who requested assistance from other officers. (See id. at 4). Once the on-

duty supervisor arrived, Appellant provided identification; Officer Baker then

ran Appellant’s license, which came back as suspended. (See id.). When

asked, Appellant admitted that he was aware that he did not have a valid

Pennsylvania driver’s license but claimed to have a valid New York State

driver’s   license.   (See   id.).   However,   Officer   Baker   subsequently

determined that this was not true. (See id.). Officer Baker cited Appellant

for DUS. (See id. at 5).

      On January 28, 2016, Appellant appeared pro se at a summary

hearing.     The magisterial district judge found him guilty of DUS and

sentenced him to a flat term of incarceration of one hundred and fifty days.

On February 16, 2016, Appellant, acting pro se, filed a summary appeal. In

late March 2016, Appellant, acting pro se, successfully continued his de novo

hearing and obtained counsel. However, he did not meet with counsel prior

to the continued hearing because he had “doctors (sic) appointments and

other things I had to take care of.” (N.T. Hearing, at 3).

      Although Appellant unsuccessfully sought a continuance because of

counsel’s lack of preparation, (see id. at 2-3), the de novo hearing took

place on April 28, 2016.     At the hearing, Officer Baker represented the

Commonwealth and called himself as its only witness.         (See id. at 3-4).

Appellant elected not to testify at the hearing. (See id. at 9). Following the


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close of evidence, despite not having filed any motion to suppress, counsel

argued that the trial court should dismiss the case because there was not

reasonable suspicion to justify the motor vehicle stop. (See id. at 9-10).

      The trial court found Appellant guilty and immediately imposed a

sentence of not less than sixty nor more than one hundred and eighty days

of incarceration, the costs of prosecution, fees and a fine of five hundred

dollars. (See id. at 13). The instant timely appeal followed. On June 2,

2016, the trial court ordered Appellant to file a concise statement of errors

complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed a timely

Rule 1925(b) statement on June 24, 2016. See id. On July 11, 2016, the

trial court issued an opinion. See Pa.R.A.P. 1925(a).

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

            Whether the trial court erred in failing to rule on
      Appellant’s suppression argument and in finding Appellant guilty
      of [DUS] when the officer did not testify to sufficient information
      to support that he had reasonable suspicion or probable cause to
      stop Appellant’s vehicle for a suspected violation of the [v]ehicle
      [c]ode[?]

(Appellant’s Brief, at 5).

      Appellant first claims that the “trial court erred in failing to rule on

[his] suppression argument.”      (Id.).   However, he waived this claim.

Appellant did not raise this claim in his Rule 1925(b) statement, which only

challenged the trial court’s finding of guilt.   (See Concise Statement of

[Errors] Complained of on Appeal, 6/24/16, at 1).       As amended in 2007,

Pennsylvania Rule of Appellate Procedure 1925 provides that issues that are

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not included in the Rule 1925(b) statement or raised in accordance with Rule

1925(b)(4)    are   waived.     See   Pa.R.A.P.   1925(b)(4)(vii);   see   also

Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998), superseded by

rule on other grounds as stated in Commonwealth v. Burton, 973 A.2d

428, 431 (Pa. Super. 2009).      Moreover, an appellant cannot raise a new

issue on appeal.    See Pa.R.A.P. 302(a).    Therefore, Appellant waived any

challenge to the trial court’s failure to consider his suppression argument.

      Appellant next argues that the trial court erred in finding him guilty

when the police lacked reasonable suspicion to stop his vehicle.           (See

Appellant’s Brief, at 13-16).   However, we find that Appellant waived his

claim that the police lacked reasonable suspicion to stop his vehicle because

he did not file a motion to suppress and, therefore, the trial court did not

abuse its discretion in failing to consider his argument.

      With respect to motions to suppress, the Pennsylvania Rules of

Criminal Procedure provide in relevant part:

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

                                  *    *    *


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           (D) 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.

           (E) A hearing shall be scheduled in accordance with Rule
     577 (Procedures Following Filing of Motion). A hearing may be
     either prior to or at trial, and shall afford the attorney for the
     Commonwealth a reasonable opportunity for investigation. The
     judge shall enter such interim order as may be appropriate in
     the interests of justice and the expeditious disposition of criminal
     cases.

                                 *    *    *

     [Comment:] It should be noted that failure to file the motion
     within the appropriate time limit constitutes a waiver of the right
     to suppress. However, once the motion is timely filed, the
     hearing may be held at any time prior to or at trial.

     All motions to suppress must comply with the provisions of Rule
     575 (Motions and Answers) and Rule 576 (Filing and Service by
     Parties).

Pa.R.Crim.P. 581(A), (B), (D), (E), and Comment.       This Court has stated

that “[c]riminal [r]ules, unless specifically made inapplicable, must be

followed in all de novo proceedings in our trial courts on summary violation

appeals.” Commonwealth v. Pringle, 450 A.2d 103, 107-08 (Pa. Super.

1982).

     Appellant concedes that he did not file a suppression motion prior to

the de novo hearing.    (See Appellant’s Brief, at 11).      Appellant further

admits that he did not make an oral motion to suppress at the close of the

Commonwealth’s evidence.     (See id. at 12).    Nonetheless, he claims that

this Court’s decision in Commonwealth v. Downey, 39 A.3d 401 (Pa.

Super. 2012), appeal denied, 50 A.3d 124 (Pa. 2012), allows for “truncated

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procedures” in summary conviction cases and compels that we find Appellant

did not waive the suppression issue. (Appellant’s Brief, at 11; see id. at 12-

14). We disagree.

      In Downey, the defendant did not file a written motion to suppress

prior to his de novo hearing, however, counsel made an oral motion to

suppress at the end of the Commonwealth’s case. See Downey, supra at

404. The Commonwealth did not object, and the trial court, after hearing

argument, specifically denied the motion. See id. On appeal, for the first

time, the Commonwealth argued that Appellant had waived the issue by

failing to file a written motion.   See id.   In rejecting this argument, we

stated:

      We note[] that the rule expressly indicates that a written motion
      was not required if the opportunity to file it did not previously
      exist or if the interests of justice otherwise required
      consideration of the motion. . . . Whether the opportunity did not
      previously exist or the interests of justice otherwise require is a
      matter for the discretion of the trial judge.

             Herein, the trial court entertained Appellant’s oral motion
      to suppress and rendered a ruling on the merits. Furthermore,
      the Commonwealth never objected at the summary trial to the
      trial court’s consideration of the oral suppression request. It is
      only now, on appeal, that the Commonwealth urges a finding of
      waiver. Finally, this matter involved a summary conviction, the
      adjudication of which entails truncated procedures. Hence, we
      decline to find waiver herein.

Id. (citation and quotation marks omitted).

      The instant matter is distinguishable. Here, Appellant never made an

oral motion to suppress. Instead, Appellant waited until after the close of


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evidence and, in closing argument, asserted that the trial court case should

dismiss the case because the police officer lacked reasonable suspicion for

the motor vehicle stop. (See N.T. Hearing, at 9-10). The Commonwealth,

which was represented by Officer Baker, not an assistant district attorney,

had no notice that suppression would be an issue at trial,2 and no

opportunity to object to a motion that Appellant did not make. Further, the

trial court could not rule on a non-existent motion.

       Moreover, Appellant has failed to demonstrate that, even if we were to

consider remarks made during closing argument an oral motion to suppress,

“the opportunity did not previously exist [to file the motion], or the interests

of justice otherwise require[d]” the trial court to entertain it. Pa.R.Crim.P.

581(B); see also Downey, supra at 404.             In his brief, Appellant argues

that he was unaware that a suppression issue existed because “counsel had

not had the opportunity to meet with Appellant prior to the hearing . . . .”

(Appellant’s Brief, at 11).         However, the record reflects that Appellant

continued the de novo hearing once in order to obtain counsel, and had
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2
  As the trial court aptly noted, “[t]his matter was not a summary trial for an
offense such as reckless driving where the elements of the underlying
offense would be congruent with the evidence of the stop.” (Trial Court
Opinion, 7/11/16, at 5-6) (footnote omitted). The Commonwealth charged
Appellant with driving while operating privilege was suspended or revoked.
Therefore, it had to prove that Appellant was driving on a highway or
trafficway; and his operating privilege was suspended or revoked. See 75
Pa.C.S.A. § 1543(a). Thus, absent the filing of a motion to suppress, there
was nothing to alert the Commonwealth that it needed to prepare its witness
to testify about the reasonableness of the motor vehicle stop.



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approximately one month during which he could have met with counsel.

(See N.T. Hearing, at 2-3). The record further reflects that Appellant made

a conscious decision not to meet with counsel prior to trial because he had

“other things I had to take care of.” (Id. at 3.) Under these circumstances,

we cannot say that there was no opportunity to file the motion prior to trial

or that the interests of justice required the trial court to treat statements

made during closing argument as an oral motion to suppress. Accordingly,

for the reasons discussed above, we find that Appellant waived his

suppression issue. See Pa.R.Crim.P. 581(B); see also Downey, supra at

404. Therefore, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2017




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