J. S08021/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,             :     IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
                   v.                     :
                                          :
DARNELL CARTER,                           :
                                          :
                         Appellant        :      No. 999 WDA 2015


             Appeal from the Judgment of Sentence May 15, 2015
               In the Court of Common Pleas of Warren County
              Criminal Division No(s).: CP-62-CR-0000245-2014

BEFORE: STABILE, J., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 16, 2016

        Appellant, Darnell Carter, appeals from the judgment of sentence

entered in the Court of Common Pleas of Warren County following his jury

trial conviction for Possession of a Controlled Substance1 and three summary

traffic offenses.2 Upon careful review, we affirm.

        A brief factual background is as follows: On July 5, 2015, Police

stopped Appellant at a DUI checkpoint and observed a small baggie that

contained a white powdery substance inside the car. N.T. Trial, 4/7/15, at

36, 38, 46-47, 50.      Police obtained a search warrant for the car, and

discovered two additional baggies containing a white powdery substance.

N.T. Trial, 4/7/15, at 53-55. Police subsequently arrested Appellant, and the

1
    35 P.S. § 780-113(a)(16).
2
    75 Pa.C.S § 1543(a); 75 Pa.C.S. § 1301(a); 75 Pa.C.S. § 4703(a).
J. S08021/16

case went to trial, after which the jury found the Appellant guilty. The trial

court sentenced the Appellant to one year of probation.

      Appellant filed a timely notice of appeal and a timely Concise

Statement of the Matters Complained of on Appeal pursuant to Pa.R.A.P

1925(b). The trial court filed a Memorandum Opinion pursuant to Pa.R.A.P.

1925(a).

      Appellant’s sole statement of the question presented is: “Did the trial

court abuse its discretion by denying the oral motion filed by defense

counsel to dismiss the complaint based on the Commonwealth’s failure to

submit     the   constitutional   requirements    under    Tarbert/Blouse?”3

Appellant’s Brief at 4.     In order to address this issue, we must first

determine the type of motion in question.

      During trial, and after the Commonwealth’s case-in-chief, Appellant

made the following motion to the court: “I submit that the DUI checkpoint

was an unlawful checkpoint.”        N.T. Trial, 4/7/15, at 113.       However,

Appellant did not specify what he was asking the court to do.        After brief

argument from each party, the trial court stated, “I am overruling that

objection with respect to the checkpoint.” Id. at 115.

      At trial, Appellant contested the DUI checkpoint in terms of being

illegal. Id. at 113.   In various filings, Appellant claimed that this objection

3
   Commonwealth v. Tarbert, 535                 A.2d 1035 (Pa. 1987);
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992) (establishing
constitutional guidelines for DUI checkpoints).



                                     -2-
J. S08021/16

was both a Motion to Dismiss the Complaint4 and a Motion for Judgment of

Acquittal.5 However, in its 1925(a) Opinion, the trial court classified the oral

motion as a Motion to Suppress, and this Court concurs.        See Trial Court

Opinion, dated 6/26/15.

        Appellant’s objection that the DUI checkpoint was “unlawful” was in

essence a request to suppress the evidence obtained from the search of the

car and this Court will treat it as such. See Commonwealth v. Garibay,

106 A.3d 136, 140 (Pa.Super. 2014), appeal denied, 123 A.3d 1060 (Pa.

2015) (concluding that where police do not comply with the guidelines in

establishing a checkpoint, the trial court should suppress evidence derived

from the stop).

        Appellant, however, waived his right to file or argue a Motion to

Suppress. Pennsylvania Rule of Criminal Procedure 581 required Appellant

to file a Motion to Suppress in a timely Omnibus Pretrial Motion within 30

days of arraignment or the issues were waived: “[i]f timely motion is not

made hereunder, the issue of suppression of such evidence shall be

deemed to be waived.”         Pa.R.Crim.P. 581(B) (emphasis added).         The

Pennsylvania Supreme Court reiterates, “[t]his Court has consistently

affirmed the principle that [Appellant] waives the ground of suppressibility


4
    Apellant’s Brief at 4.
5
 Statement of Matters Complained of on Appeal at 1; Appellant’s Brief at 5,
8-9.



                                     -3-
J. S08021/16

as a basis for opposition to the Commonwealth's introduction of evidence

when he or she fails to file a suppression motion pursuant to our rules of

criminal procedure.”      Commonwealth v. Baumhammers, 960 A.2d 59,

76-77 (Pa. 2008).

      However, the Pennsylvania Rules of Criminal Procedure provide four

exceptions to the Omnibus Pretrial Motion filing deadline. Rule 579 allows

exceptions where: 1) opportunity therefore did not exist; 2) the defendant

or defense attorney, or the attorney for the Commonwealth was not aware

of the grounds for the motion; or 3) the time for filing has been extended

by the court for cause shown.     Pa.R.Crim.P. 579(A).   Rule 581 provides a

fourth exception:      “where the interests of justice otherwise require.”

Pa.R.Crim.P. 581(B). Therefore, the trial court may permit a Defendant to

file an untimely Motion to Suppress if the trial court decides that one of the

four exceptions exists.

      In the instant case, the trial court found that the oral motion was a

Motion to Suppress (even though the Appellant tried to categorize it

differently), found that the Motion to Suppress was untimely, found that no

timeliness exceptions applied, and therefore found any suppression issues to

be waived. The trial court made the following well-reasoned findings as to

why no exceptions applied:

      [Appellant] did not file any pretrial motion, did not offer any
      objection, or otherwise put the [Appellee] on notice that
      [Appellant] planned to challenge the constitutionality of the DUI
      checkpoint until after the close of the [Appellee]’s case-in-chief.


                                     -4-
J. S08021/16

      It is inappropriate and contrary to the Pennsylvania Rules of
      Criminal Procedure to allow a[n] [Appellant] to sandbag the
      [Appellee] and offer a suppression motion based solely on the
      [Appellee]’s case-in-chief. [Appellant]’s position is untenable
      because it would require the [Appellee] to show that it
      constitutionally obtained evidence before presenting every piece
      of evidence at trial.         [Appellant] offered no possible
      circumstances that would permit the Court to entertain such an
      untimely oral motion to suppress…Counsel was armed with the
      case law regarding DUI checkpoints and began to argue the
      specific criteria before the Court dismissed the motion as
      untimely. This would certainly indicate that [Appellant] was
      aware pretrial of the grounds for challenging the constitutionality
      of the DUI checkpoint and chose to intentionally violate the
      Rules of Criminal Procedure out of a misguided and improper
      trial strategy.

Trial Court Opinion, dated 7/26/15, at 2-3.

      We agree with the trial court.

      Appellant failed to file a Motion to Suppress prior to trial despite

having knowledge that the charges involved evidence obtained from a DUI

checkpoint stop.    Application for Search Warrant, dated July 11, 2014.

Appellant did not petition the court for any additional time to file the Motion

to Suppress, did not object to any evidence coming in during trial, and did

not offer any reason why Appellant was unable to file a timely motion to

suppress as required by Rule 579(A) and 581(B). Trial Court Opinion, dated

7/26/15, at 2-3; Pa.R.Crim.P. 579(A); Pa.R.Crim.P. 581(B). Finally, the trial

court made a reasonable finding that it was against the interests of justice

to allow an untimely motion to suppress and “sandbag” the Appellant. Trial

Court Opinion, dated 7/26/15, at 2-3.




                                       -5-
J. S08021/16

     Since no exception applies, Rule 581(B) dictates:           “the issue of

suppression    of   such   evidence   shall   be   deemed   to   be   waived.”

Pa.R.Crim.P. 581(B) (emphasis added).

       For the reasons stated above, the trial court did not abuse its

discretion when it denied the oral motion to suppress as untimely and the

suppression of any evidence that is the subject of that motion is deemed to

be waived.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/16/2016




                                      -6-
