J-S30019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

TIMOTHY D. EILAND

                            Appellant                No. 1658 MDA 2016


             Appeal from the Judgment of Sentence May 25, 2016
              in the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0000341-2013


BEFORE: SHOGAN, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY RANSOM, J.:                              FILED JULY 11, 2017

        Appellant, Timothy D. Eiland, appeals from the judgment of sentence

of five to ten years of incarceration, entered May 25, 2016, following a

bench trial resulting in his conviction for four counts of possession with

intent to deliver, two counts of possession of a controlled substance,

possession of drug paraphernalia, and firearms not to be carried without a

license.1 We affirm.

        A previous panel of this Court summarized the facts of this case as

follows:

        On December 3, 2012, at 2:11 p.m., a 911 dispatch announced
        a robbery had just occurred at M & T Bank, located at 2001 West
        Fourth Street in Williamsport, Pennsylvania. The initial dispatch
        described the suspect as a black male, six feet tall, wearing a
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1
    35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), and 18 Pa.C.S. § 6106.
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      dark sweatshirt and a ski mask, running west away from the
      bank. The description was updated to include that the suspect
      was in his twenties, had a thin build, was wearing white gloves
      and carrying a grey bag.       The height of the suspect was
      described as 5′7″ to 5′10″.

      Sergeant Christopher Kriner, wearing plain clothes, responded to
      the dispatch and stationed himself at the intersection of Funston
      Avenue and West Fourth Street, across the street from the bank,
      in an unmarked Ford Crown Victoria police car. At 2:24 p.m.,
      Sergeant Kriner observed a white Chrysler 300M, with a
      Tennessee license plate, driving east on West Fourth Street,
      passing the bank. He observed three black males in the vehicle,
      appearing to be in their twenties, and wearing dark colored
      clothing. As the car passed between the bank and Sergeant
      Kriner, the backseat passenger ducked down. At approximately
      2:28 p.m., after determining the vehicle was a rental car,
      Sergeant Kriner initiated a traffic stop.

      Immediately upon making contact with the vehicle, Sergeant
      Kriner detected a strong odor of marijuana, and the occupants
      were ultimately searched and found to be in possession of
      contraband. The Commonwealth charged both [David Emanuel
      Collins Jr., Appellant’s co-defendant] and Eiland with numerous
      counts of possession with intent to deliver a controlled
      substance, possession of a controlled substance by person not
      registered,    possession    of  drug    paraphernalia,    criminal
      conspiracy, receiving stolen property, possession of firearm
      prohibited, and firearms not to be carried without a license.

See Commonwealth v. Eiland, 116 A.3d 689                  (Pa. Super. 2014)

(unpublished memorandum), appeal denied, 121 A.3d 494 (Pa. 2015)

(internal citations to the record omitted).

      In May 2013, Appellant filed a motion to suppress evidence seized as a

result of the traffic stop. In December 2013, the suppression court granted

Appellant’s co-defendant’s motion to suppress.        In January 2014, the

suppression court granted Appellant’s motion, based on its earlier ruling.

The Commonwealth appealed both decisions.        On appeal, this Court found

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that Sergeant Kriner did have reasonable suspicion to stop Appellant’s car,

reversed the suppression order, and remanded for further proceedings. See

Eiland, 116 A.3d at 689.

        In August 2015, Appellant filed a supplemental motion to suppress

evidence, arguing that the stop had been made in violation of his

constitutional rights, as Sergeant Kriner had an honest but mistaken belief

that the vehicle had been involved in a bank robbery.       See Supplemental

Motion to Suppress, 8/28/15, at ¶¶ 10-11.        Appellant argued there is no

“good faith exception” with regard to unlawful seizures and that Terry2

stops are incompatible with the Pennsylvania State Constitution. Id.

        Following argument, the court denied the motion as untimely and

without merit.      The matter proceeded to bench trial, and Appellant was

convicted of the above charges. In May 2016, Appellant was sentenced as

set forth above.      Appellant timely filed a post-sentence motion, which the

court denied.

        Appellant timely appealed and filed a court-ordered statement of

matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial

court issued a responsive opinion.

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




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2
    Terry v. Ohio, 88 S. Ct. 1868 (1968).



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      1. Whether the trial court erred in denying Appellant’s
      supplemental motion to suppress evidence as being untimely
      and without merit?

      2. Whether a panel of this court erred in finding that the trial
      court’s ruling that the police officer lacked “reasonable suspicion”
      to stop the vehicle being operated by Appellant on the basis that
      the vehicle was somehow involved in a bank robbery raised a
      pure question of law instead of a mixed question of law and fact?

      3. Assuming that the trial court’s ruling is on a mixed question of
      law and fact, did a panel of this court give adequate deference to
      the trial court’s decision that the police officer lacked reasonable
      suspicion?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      Our standard of review when 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.”          Commonwealth v.

Jones, 988 A.2d 649, 654 (Pa. 2010) (citations omitted).          Where these

findings are supported by the record, we are bound by those findings and

may reverse only if the court’s legal conclusions are erroneous. Id.

      Here, Appellant claims that the trial court erred in denying Appellant’s

“supplemental motion” as untimely. See Appellant’s Brief at 13. Appellant

claims that, even if Sergeant Kriner had an honest but mistaken belief that

one of the occupants of the vehicle was involved in the bank robbery, this

would not justify the stop of the vehicle as there is no “good faith exception”

with regard to unlawful seizures.          Id. at 13-14 (citing in support

Commonwealth v. Johnson, 86 A.3d 182 (Pa. 2014)). Appellant argues



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that because Johnson was not decided until after Appellant’s motion to

suppress was granted, he did not have the opportunity to make this

argument in support of his motion, and the Commonwealth would not have

been prejudiced by the court’s entertaining the motion on the merits. See

Appellant’s Brief at 16.

      The Pennsylvania Rules of Criminal Procedure provide that unless

required in the interests of justice, all pretrial requests for relief, including

motions for suppression of evidence, shall be included in one omnibus

motion. See Pa.R.Crim.P. 578. The omnibus motion for relief shall be filed

and served within thirty days after arraignment, unless the opportunity to do

so did not exist, the defendant was not aware of the grounds for the motion,

or unless the court has extended the time for filing for good cause.               See

Pa.R.Crim.P. 579. A motion to suppress evidence shall state specifically and

with particularity the evidence sought to be suppressed, the grounds for

suppression, and the facts and events in support thereof; if a timely motion

is not made, the issue of suppression will be deemed waived.                       See

Pa.R.Crim.P. 581.

      Here, there is no question that Appellant’s “supplemental motion” to

suppress was untimely filed per the Rules of Criminal Procedure. Appellant

waived arraignment March 7, 2013. His first omnibus motion was filed May

7, 2013. The instant motion was not filed until August 28, 2015, over two

years later.    Nevertheless, Appellant contends he is entitled to special

consideration   based      upon   case   law   decided   in   the   interim   of   the

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Commonwealth’s appeal. Appellant argues that he could not raise this issue

prior to his August 2015 “supplemental motion,” as Johnson was not

decided until February 2014.

      Appellant suggests, wrongly, that Johnson provides grounds for relief.

However, Johnson is inapposite. In Johnson, the arrest was made on an

invalid and expired arrest warrant, although the police officer reasonably and

in good faith believed that the arrest warrant was valid. See Johnson, 86

A.3d at 184. The Pennsylvania Supreme Court held that the evidence was

properly suppressed under Article I, Section 8 of the Pennsylvania

Constitution, and the Court’s prior decision in Commonwealth v. Edwards,

586 A.2d 887 (Pa. 1991) (rejecting federal good faith exception to the

exclusionary rule in a case involving evidence seized pursuant to a defective

search warrant).

      In the instant case, however, a panel of this Court held that the

totality of the circumstances supported the reasonable suspicion of Sergeant

Kriner to conduct a traffic stop. See Eiland, 116 A.3d at 689. A defective

warrant was not at issue, and accordingly, Appellant’s arguments regarding

Johnson are meritless.

      Appellant’s remaining issues challenge a prior ruling of this Court.

Appellant claims that the panel erred in overruling the suppression court.

See Appellant’s Brief at 17. Appellant contends that the panel “replaced its

view of the facts for that of the trial court in complete violation of the




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standard of review that an appellate Court should undertake” in an appeal

from a suppression order. Id. at 18.

       In the prior appeal, the panel held that the suppression court erred in

finding Sergeant Kriner did not have reasonable suspicion to stop Appellant

and his co-defendant, and “we cannot revisit that determination herein.”3

True R.R. Assocs., L.P. v. Ames True Temper, Inc., 152 A.3d 324, 337

(Pa. Super.     2016); see also See Commonwealth v. Starr, 664 A.2d

1326, 1331 (Pa. 1995) (“upon remand for further proceedings, a trial court

may not alter the resolution of a legal question previously decided by the

appellate court in the matter”).               Here, the Commonwealth successfully

appealed.     Appellant applied for en banc consideration and reargument of

that decision before this Court. That request was denied. He petitioned for

allocatur before the Pennsylvania Supreme Court. That request was denied.

He untimely filed an additional motion seeking relief.            That request was




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3
  Even if Appellant were not barred by the coordinate jurisdiction rule, he
would be barred from relitigating this issue by the doctrine of res judicata.
Where a court of competent jurisdiction has previously rendered a final
judgment on the merits, a defendant may not raise the same cause of action
between the parties. Matternas v. Stehman, 642 A.2d 1120, 1123 (Pa.
Super. 1993). The common elements necessary for res judicata to apply are
identity 1) in the thing sued upon; 2) in the cause of action; 3) of persons
and parties to the action; and 4) identity of the capacity of the parties suing
or being sued. Id. Here, all elements are met. The parties are the same,
the issue of suppression is the same, and the capacity of the parties in the
criminal matter are the same.



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denied.   At some point, Appellant must accept that his issue has been

decided with finality.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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