J-A11002-18


    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA

                             Appellee

                        v.

    AMAVILES MARTINEZ, JR.

                             Appellant                No. 1350 MDA 2017


          Appeal from the Judgment of Sentence July 31, 2017 In the
        Court of Common Pleas of Berks County Criminal Division at Nos:
                           CP-06-CR-0000907-2014

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.:                          FILED AUGUST 14, 2018

        Appellant, Amaviles Martinez, Jr., appeals from his judgment of

sentence of six to fifteen years’ imprisonment for possession of a firearm by

a felon1 and possession of controlled substances with intent to deliver. 2 We

affirm.

        On February 6, 2014, Berks County probation officers visited Appellant’s

residence while Appellant was on probation for a corrupt organizations

conviction. The officers discovered a substantial amount of marijuana and a

firearm during the visit.



____________________________________________


* Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 6105.

2   35 P.S. § 780-113(a)(30).
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        On March 21, 2014, the Commonwealth filed an information charging

Appellant    with    the   above     offenses    along   with   possession   of   drug

paraphernalia. The trial court granted Appellant an extension of time until

May 16, 2014 to file omnibus pretrial motions. Appellant did not file a motion

to suppress until October 24, 2016, two years and five months after the

extended deadline.         On October 27, 2016, the trial court denied the

suppression motion as untimely.

        Almost two months later, on December 22, 2016, Appellant filed a

motion seeking reconsideration of the order denying his suppression motion.

Appellant admitted that his initial motion was both untimely and boilerplate in

nature but asked the court to excuse these defects in the interests of justice.

On December 27, 2016, the trial court denied the motion for reconsideration.

        On March 13, 2017, Appellant filed a second motion for reconsideration

fleshing out his argument for suppression.          In essence, Appellant asserted

that (1) on the afternoon of February 6, 2014, probation officers visited his

residence without advance notice and demanded entry without any reasonable

suspicion of any criminal wrongdoing; (2) Appellant did not voluntarily consent

to their entry; (3) during the visit, the probation officers obtained

incriminating statements from Appellant without first providing Miranda3

warnings; and (4) based on these incriminating statements, a probation officer

found marijuana in the living room, and (5) a police officer who responded to

____________________________________________


3   Miranda v. Arizona, 384 U.S. 436 (1966).

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the probation officer’s call unlocked a bedroom door and found a gun inside.

On March 17, 2017, the court denied Appellant’s second motion for

reconsideration.

      The trial court granted the Commonwealth’s motion to sever the

firearms charge from the other charges. During trial on the firearms charge,

Appellant’s wife testified that she owned the firearm instead of Appellant and

that she obtained the firearm to “protect her family.” N.T., 6/7/17, at 136.

Nevertheless, the jury found Appellant guilty of the firearms charge. On July

26, 2017, the trial court, sitting without a jury, found Appellant guilty of the

remaining charges.

      On July 31, 2017, the trial court imposed sentence.           Appellant filed

timely post-sentence motions, which the trial court denied, and a timely notice

of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

The trial court stated in its opinion that it denied Appellant’s initial suppression

motion and two motions for reconsideration because they were untimely and

boilerplate in nature. Trial Ct. Op., 10/5/17, at 4-5.

      Appellant raises two issues in this appeal:

      A. Whether the trial court erred and abused its discretion first, by
      failing to hold a pretrial evidentiary hearing on Appellant’s
      amended motion to suppress based on violation of the Appellant’s
      rights under the Fourth and Fifth Amendments to the United
      States constitution and analogous provisions of the Pennsylvania
      constitution, and second, thereby in effect denying the motion to
      suppress?

      B. Whether, in this prosecution of [Appellant] for alleged unlawful
      possession of a firearm, the trial court erred and abused its


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      discretion by barring [Appellant’s] wife from testifying to the
      circumstances supporting her testimony that she alone obtained
      the firearm for protection of her household and family?

Appellant’s Brief at 2.

      In his first argument, Appellant objects to the trial court’s refusal to hold

a pretrial hearing due to the tardiness of his suppression motion. We review

decisions denying leave to file an untimely suppression motion for abuse of

discretion. Commonwealth v. Long, 753 A.2d 272, 279 (Pa. Super. 2000).

      The Rules of Criminal Procedure require defendants to file suppression

issues within an omnibus pretrial motion.           Pa.R.Crim.P. 581(B).       The

defendant must file and serve the omnibus motion “within 30 days after

arraignment . . . unless the time for filing has been extended by the court for

cause shown.”     Pa.R.Crim.P. 579(A).      If the defendant files an untimely

suppression motion, “the issue of suppression of such evidence shall be

deemed to be waived” unless the court excuses the defendant’s tardiness in

the “interests of justice.” Pa.R.Crim.P. 581(B). The “interests of justice” test

requires consideration of “the length and cause of the delay, the merits of the

suppression claim, and the court’s ability, considering the complexity of the

issues and the availability of the witnesses, to hold the hearing promptly.”

Commonwealth v. Brown, 378 A.2d 1262, 1266 (Pa. Super. 1977). The

trial court should invoke the “interests of justice” exception when “the merits

of counsel’s [untimely] motion [are] so apparent that justice require[s] that it

be heard.” Commonwealth v. Hubbard, 372 A.2d 687, 693 (Pa. 1977),




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overruled on different grounds, Commonwealth v. Grant, 813 A.2d 726,

738 (Pa. 2002).

      Courts are unwilling to apply the “interests of justice” exception in the

defendant’s favor when he raises an untimely suppression issue whose merits

are not apparent.     Hubbard, 372 A.2d at 695 (where officers requested

consent to inspect defendant’s automobile and boots after short, informal

questioning period in defendant’s home in which officers twice advised

defendant of his right to refuse consent, defendant’s motion at murder trial to

suppress evidence relating to automobile and boots on ground that he had not

been advised of his Miranda rights before consenting to inspection did not

raise apparently meritorious claim; thus, “interests of justice” did not require

that such motion be heard).        Courts are also reluctant to excuse untimely

motions arguing issues that the defendant could have timely raised by the

original due date. Commonwealth v. Johonoson, 844 A.2d 556, 561 (Pa.

Super.   2004)    (trial   court   properly      denied   defendant’s    supplemental

suppression   motion       as   untimely    where    defendant    knew      facts    and

circumstances surrounding traffic stop at time of original suppression motion

but limited original motion to different issue and did not file supplemental

motion until four months later, after court had denied original motion);

compare Commonwealth v. Long, 753 A.2d 272, 279-80 (Pa. Super. 2000)

(trial court properly considered, in prosecution for driving under the influence,

defendant’s   oral    suppression      motion       presented    at     conclusion    of

Commonwealth's case, on ground that recently obtained videotape of traffic

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stop and arresting officer’s trial testimony provided basis for the motion not

available pretrial).

      In this case, the original deadline for Appellant’s motion to suppress was

Monday,    April   21,    2014,   thirty    days    after   Appellant’s    arraignment.

Pa.R.Crim.P. 579(A). Appellant requested and received an extension to file

his motion until May 14, 2014.        Despite this extension, he did not file his

original suppression motion until October 24, 2016, two years and five months

after the extended deadline, and he failed to present good cause for this

lengthy delay.     Bluntly put, Appellant displayed abject indifference to the

court’s schedule. Moreover, Appellant’s original motion and initial motion for

reconsideration    were    boilerplate     in   nature.     His   second    motion   for

reconsideration, which claimed that the probation officers performed the

search without his consent and failed to provide Miranda warnings, was more

detailed than his prior motions, but its merit was not “so apparent that justice

required it be heard.” Hubbard, 372 A.2d at 693. Further, nothing prevented

Appellant from raising these arguments 2½ years earlier in a timely

suppression motion.        We conclude that the trial court acted within its

discretion by denying Appellant’s original motion to suppress and motions for

reconsideration without a hearing.

      In his second argument, Appellant contends that the trial court erred by

precluding Appellant’s wife from explaining her reasons for obtaining the

firearm that law enforcement officers discovered in the residence. We review




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the trial court's evidentiary rulings for abuse of discretion. Commonwealth

v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007).

      We conclude that this ruling was a proper exercise of the trial court’s

discretion. The court explained that it permitted Appellant’s wife to testify

that the gun belonged to her and not Appellant, but it barred testimony about

her reasons for owning the gun because they “[had] no bearing on any

material fact. The material fact in this case was possession of the gun by

Appellant. Whether [Appellant’s wife] had acquired the gun legally or with a

substantial justification was irrelevant [to whether Appellant was in possession

of the gun].” Trial Ct. Op. at 9 (emphasis added). We also observe that this

ruling did not prejudice Appellant, for his wife still managed to explain her

reason for obtaining the gun by testifying that she needed the gun to “protect

her family.” N.T., 6/7/17, at 136.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/18




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