J-S28039-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

EARL JOHNSON

                        Appellant                  No. 2001 EDA 2015


        Appeal from the Judgment of Sentence November 10, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0009452-2011


BEFORE: BOWES, LAZARUS, AND PLATT,* JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                  FILED MAY 24, 2016

     I agree with my esteemed colleagues in concluding that Appellant’s

suppression claim is waived because he failed to successfully navigate the

procedures outlined in Pa.R.Crim.P. 1006 and Philadelphia Court Criminal

Division Rule 630(F), (G), and (H) in order to challenge the Philadelphia

Municipal Court’s denial of his motion to suppress evidence.        I write

separately to address Appellant’s citation to Pa.R.Crim.P. 720(B) as a basis

to avoid waiver.

     As the trial court summarized the facts and procedural history of this

case, outlined our standard of review, and cogently explained the relevant

analysis, I do not revisit those matters in-depth.   Suffice to say, under

Pa.R.Crim.P. 1006 and Philadelphia Rule 630(F), (G), and (H), Appellant had


* Retired Senior Judge assigned to the Superior Court.
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two ways to challenge the municipal court’s suppressions decision: (1) file a

writ of certiorari and have the Court of Common Pleas review the municipal

court ruling sitting as an appellate court; or (2) request a de novo trial in the

Court of Common Pleas and, if convicted, challenge the municipal court’s

suppression decision in a motion for a new trial. See Commonwealth v.

Beaufort, 112 A.3d 1267, 1269 (Pa.Super. 2015); Commonwealth v.

Dobson, 405 A.2d 910 (Pa. 1979); Phila.R.Crim.P. 630(H) (“In the event a

defendant is convicted after appeal and trial de novo in the Common Pleas

Court, a defendant may raise in an application for Motion for a New Trial the

admissibility of the evidence introduced at trial.”).

      As referenced, supra, Appellant arguably invoked Pa.R.C.P. 720(B)(c)

as a basis to avoid waiver, albeit in a two-sentence footnote. Pursuant to

Rule 720(c), “Issues raised before or during trial shall be deemed preserved

for appeal whether or not the defendant elects to file a post-sentence motion

on those issues.” While not specifically argued, the implication of Appellant’s

reference to Rule 720 is that, having filed a motion to suppress at the outset

of the municipal court proceeding, he “raised” the issue prior to the de novo

bench trial in the court of Common Pleas, and therefore the issue is

preserved. Appellant’s perspective is flawed.

      Generally, the purpose of a local rule is to supplement the statewide

rules rather than supplant them. To the degree that application of a local

rule contradicts the explicit function of a statewide rule, the local rule must

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be subservient. See Pa.R.Crim.P. 105(B) (“Local rules shall not be

inconsistent with any general rule of the Supreme Court or any Act of

Assembly”).    In Commonwealth v. Williams, 125 A.3d 425 (Pa.Super.

2015), this Court held that Philadelphia Rule 630(J), which allowed the

Commonwealth only fifteen days to appeal from the Philadelphia Municipal

Court’s suppression order, was void because it conflicted with the thirty-day

appeal period outlined in Pa.R.Crim.P. 1005(c), a statewide rule that is

specific to appeals from the Philadelphia Municipal Courts. Unlike the rules

at issue in Williams, however, the local and statewide rules applicable to

the preservation of a suppression issue in the case at bar operate in unison

and, more importantly, do not implicate Rule 720(B)(c).

     First, I highlight that Rule 720(B)(c) does not govern the instant

situation. Pursuant to Pa.R.Crim.P. Rule 1000(B), which outlines the scope

of the chapter governing the Philadelphia Municipal Court, “Any procedure

that is governed by a statewide Rule of Criminal Procedure that is not

specifically covered in Chapter 10 or by a Philadelphia local rule authorized

by these rules and adopted pursuant to Rule 105 shall be governed by the

relevant statewide rule.” Instantly, the relevant procedures are specifically

covered   by   Pa.R.Crim.P.   1006(a),   which   governs   appeals   from   the

Philadelphia Municipal Court and Philadelphia Rule 630(G) and (H), regarding

the trial court’s review of the Municipal Court’s suppression ruling. Hence,

consistent with Rule 1000(B), the procedures for challenging the Municipal

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Court’s denial of Appellant’s motion to suppress in the case at bar are

governed by Pa.R.Crim.P. 1006(a) and the authorized local rules but not any

other statewide rule, including Rule 720(B)(c).

       The inapplicability of Rule 720(B)(c) is unmistakable in light of the fact

that the rule is intended to avoid resubmitting an issue for the trial court’s

consideration.     See Comment to Rule 720 Optional Post-Sentence Motion.

The present case is not a typical situation that involves a litigant’s decision

whether to revisit an issue in a post-sentence motion that was previously

asserted before the trial court.         In contrast to that procedural scenario,

wherein the trial court had the opportunity to rule on the issue in the first

instance, Appellant’s failure to comply with the applicable statutory

framework precluded the trial court from confronting the municipal court’s

suppression determination at all.1         Stated plainly, without compliance with

____________________________________________


1
   While Rule 630(D) states that the Municipal Court “[j]udge hearing the
application to suppress will hear the same as a Common Pleas Court Judge,”
I interpret that statement as simply reaffirming the precedential value of the
municipal court judge’s decision as binding on the Common Pleas Court for
purposes of the de novo hearing. This view is consistent with both the tenor
of Rule 630 and its explicit deferral of challenges to the suppression ruling
until after the de novo trial.

In its entirety, Rule 630 (Application to Suppress Evidence in Municipal Court
Cases) provides as follows:

       (A) The defendant or his attorney may make application to the
       Municipal Court to suppress any evidence alleged to have been
       obtained in violation of the defendant's constitutional rights.
(Footnote Continued Next Page)


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                       _______________________
(Footnote Continued)


      (B) All pretrial applications to suppress may be submitted in
      writing prior to trial to the Attorney for the Commonwealth, or
      may be made orally at the time of trial.

      (C) Unless the interests of justice otherwise require, failure to
      make a timely application prior to or at Municipal Court trial shall
      be deemed to be a waiver of the issue of the admissibility of
      such evidence at any subsequent trial.

      (D) Pre-Trial Applications to Suppress shall be heard on the
      same day set for trial and immediately prior to trial. The Judge
      hearing the application to suppress will hear the same as a
      Common Pleas Court Judge.

      (E) If the Application to Suppress is heard pretrial in the
      Municipal Court or is deemed to be waived under subsection (c),
      and the defendant is subsequently convicted, the application
      may not be reinstated as part of the appeal to the Common
      Pleas Court, unless the trial Judge determines that new or added
      trial evidence, not available at the hearing prior to Municipal
      Court trial requires that the pretrial motion be heard again.

      (F) Upon conviction and sentence in the Municipal Court trial, a
      defendant shall have the right to take an appeal to and secure a
      trial de novo in Common Pleas Court or file a Writ of Certiorari
      from the Court of Common Pleas to the Municipal Court for
      review of the record of his conviction. In no event, may a
      defendant take an appeal for a trial de novo and a Writ of
      Certiorari.

      (G) Unless specially allowed in accordance with subsection          (d)
      of this Rule, the trial de novo shall not include relitigation of   the
      application to suppress. A defendant may seek a review of           the
      record of the suppression hearing heard on the day set               for
      Municipal Court trial as part of a Writ of Certiorari.

      (H) In the event a defendant is convicted after appeal and trial
      de novo in the Common Pleas Court, a defendant may raise in an
      application for a Motion for a New Trial the admissibility of the
(Footnote Continued Next Page)


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Rule 630(H), the trial court will never address the suppression issue

following trial de novo.

      Furthermore, unlike the rules at issue in Williams, the local and

statewide rules applicable to the preservation and review of the suppression

issue are not in conflict. Philadelphia Rule 630(F), (G) and (H) supplement

Pa.R.Crim.P. 1006(1)(a). Recall that the municipal court denied Appellant’s

suppression motion, convicted him of possession of a small amount of

marijuana, and imposed thirty days probation.       Faced with choosing an

appellate course under Rule 1006(1)(a), Appellant elected to request a de

novo trial in the Court of Common Pleas rather than petition for a writ of

certiorari for the Court of Common Pleas to address the municipal court’s

suppression ruling. Thus, consistent with Philadelphia Rule 630(H), following
                       _______________________
(Footnote Continued)

      evidence introduced at trial. If the evidence so challenged was
      the subject of an application to suppress heard prior to Municipal
      Court trial, the Court shall review the transcript and decision of
      the suppression hearing as part of the Common Pleas Court
      record.

      (I) If the application to suppress heard pretrial in the Municipal
      Court is granted, the Court shall grant the Commonwealth a
      continuance upon motion of the Attorney for the Commonwealth
      to give the Attorney for the Commonwealth the opportunity to
      take an appeal.

      (J) The Commonwealth's appeal shall be taken not later than 15
      days from the date of the decision of the Application to Suppress
      to the Common Pleas Court. Such appeal shall be limited to a
      review of the record of the hearing heard on the day set for
      Municipal Court trial.



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his conviction at the de novo bench trial, in order for Appellant to challenge

the municipal court’s suppression ruling, he was required to assert that

issue in a motion for a new trial. Thus, as the majority soundly explains,

Appellant’s failure to follow the established procedure to attack the Municipal

Court’s suppression determination is fatal to the instant appeal regardless of

Rule 720(c).

       Moreover, even if we were to overlook Appellant’s procedural misstep

in failing to challenge the suppression ruling, according to the proper

statutory framework, Appellant’s argument is waived because he neglected

to request the pertinent notes of testimony from the July 2011 suppression

hearing.     This omission impedes our review of the precise issue that he

asserts in this appeal.      In Commonwealth v. Preston, 904 A.2d 1, 6–7

(Pa.Super. 2006) (en banc ), this Court discussed the significance of the

certified record when addressing the merits of an appellate argument. We

explained,

              This Court cannot meaningfully review claims raised on
       appeal unless we are provided with a full and complete certified
       record. This requirement is not a mere “technicality” nor is this a
       question of whether we are empowered to complain sua sponte
       of lacunae[2] in the record. In the absence of an adequate
       certified record, there is no support for an appellant's arguments
       and, thus, there is no basis on which relief could be granted.

____________________________________________


2
 Merriam-Webster.com defines lacuna as “a blank space or a missing part.”
See http://www.merriam-webster.com/dictionary/lacuna



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Id. at 6–7 (internal citations omitted).

      It was Appellant’s fundamental responsibility to ensure that the

certified record contained all of the materials necessary for appellate review.

Pennsylvania Rule of Appellate Procedure 1911 outlines the requirement to

obtain transcripts for appellate review as follows:

      (a) General rule. The appellant shall request any transcript
      required under this chapter in the manner and make any
      necessary payment or deposit therefor in the amount and within
      the time prescribed by Rules 5000.1 et seq. of the Pennsylvania
      Rules of Judicial Administration (court reporters).

            ....

      (d) Effect of failure to comply. If the appellant fails to take
      the action required by these rules and the Pennsylvania Rules of
      Judicial Administration for the preparation of the transcript, the
      appellate court may take such action as it deems appropriate,
      which may include dismissal of the appeal.

Pa.R.A.P.1911(a) and(d). Appellant neglected this obligation.

      Appellant ordered the notes of testimony from the de novo bench trial

but he failed to request the notes of testimony from the July 28, 2011

suppression hearing before the municipal court.        As our review of the

suppression issue is confined to the suppression court record, we cannot

address Appellant’s argument without it.     In re L.J., 79 A.3d 1073, 1080

(Pa. 2013) (record of suppression hearing is intended to be the complete

record for purpose of reviewing suppression issues).            Thus, for this

additional reason, the claim is waived.

      Judge Lazarus joins this Concurring Memorandum.

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