J-S31027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

BRANDON ALLEN REINOEHL

                            Appellant                   No. 1525 MDA 2015


            Appeal from the Judgment of Sentence August 27, 2015
               In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000739-2014


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                             FILED SEPTEMBER 08, 2016

         Brandon Allen Reinoehl appeals from the judgment of sentence

imposed on August 27, 2015, in the Court of Common Pleas of Adams

County following his non-jury trial and conviction on charges of driving under

the influence of alcohol and controlled substances (DUI). 75 Pa.C.S. § 3802

(a)(1), (d)(1)(ii).    He received an aggregate sentence of 72 hours to six

months’ incarceration.       In this timely appeal, Reinoehl claims the trial court

erred in dismissing his pre-trial motion to suppress as having been untimely

filed.   After a thorough review of the submissions by the parties, relevant

law, and the certified record, we are compelled to remand this matter for a



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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hearing regarding waiver of Reinoehl’s right to file an omnibus pre-trial

motion.

       Our standard of review is as follows:

       “The ‘interests of justice’ exception provides a trial judge with
       discretion to excuse a party's tardy presentation of a suppression
       motion.” [Commonwealth v. Miklos, 672 A.2d 796, 802 (Pa.
       Super. 1996)] We review the court's decision on these matters
       for an abuse of discretion. Id. An abuse of discretion is not a
       mere error of judgment. Rather, it exists where the judge acts
       manifestly unreasonably, misapplies the law, or acts with
       partiality, bias, or ill will. Id. at 803.

Commonwealth v. Johonson, 844 A.2d 556, 561 (Pa. Super. 2004).

       We quote the factual and procedural history as related by the trial

court in its Pa.R.A.P. 1925(a) opinion.

       The issue before the Court is the Commonwealth’s procedural
       challenge to the timeliness of filing of [Reinoehl’s] Omnibus Pre-
       Trial Motion for Suppression of Evidence. For the reasons set
       forth below, [Reinoehl’s] Omnibus Pre-Trial Motion for
       Suppression is denied as the claims therein are waived for failure
       to comply with Pennsylvania Rule of Criminal Procedure 581
       (related to timeliness for filing of omnibus pre-trial motion).

       By criminal complaint filed on May 22, 2014, [Reinoehl] was
       charged with two counts of driving under the influence of alcohol
       and a summary violation of depositing waste on a highway.[1]
       The affidavit of probable cause accompanying the complaint
       clearly indicates that the basis for stopping [Reinoehl’s] vehicle
       was the summary violation.        On July 30, 2014, [Reinoehl]
       appeared at his preliminary hearing with counsel and waived the
       charges through to court. On September 15, 2014, [Reinoehl]
       was informally arraigned after a counseled waiver of formal
____________________________________________


1
  A police officer witnessed Reinoehl toss a cigarette butt out of his car
window.



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      arraignment.     As part of his informal arraignment, he was
      provided with a copy of the criminal information as well as
      written instructions as to his rights.      Included in those
      instruction, he was specifically advised of his right to file an
      omnibus pre-trial motion for suppression of evidence within 30
      days of his arraignment. On October 21, 2014, [Reinoehl]
      appeared before the Court with counsel and, based upon his
      application, was admitted to the A.R.D. Program. As part of his
      application, [Reinoehl] acknowledged that as a result of his
      admission into the program, he understood “that important
      rights may be given up or waived, … that [he is] aware of and
      understands those rights, and voluntarily, knowingly and
      intelligently chose to waive or give up those rights.” (A.R.D.
      application, paragraph 1(b)).

      On April 30, 2015, [Reinoehl], acting pro se, was removed from
      the A.R.D. Program as a result of testing positive for non-
      prescribed controlled substances on multiple occasions. He was
      directed to appear for plea consideration on May 21, 2015. On
      May 21, 2015, [Reinoehl] appeared with counsel and requested
      continuance.    Trial was continued to August 3, 3015, with
      [Reinoehl] directed to appear for plea consideration on June 18,
      2015. On June 17, 2015, the day prior to his scheduled plea
      day, [Reinoehl] file an Omnibus Pre-Trial Motion seeking
      suppression of evidence. His motion seeks to suppress evidence
      derived from the vehicle stop on the basis that the vehicle stop
      for the summary violation was an unconstitutional “pretextual”
      stop. The Commonwealth objects to consideration of the motion
      arguing that the claim has been waived due to the untimeliness
      of the motion pursuant to the Pennsylvania Rules of Criminal
      Procedure.

Trial Court Opinion, 8/10/2015, at 1-2.

      The filing of an omnibus pre-trial motion is governed by Pa.R.Crim.P.

579, which states, in relevant part:

      Except as otherwise provided in these rules, the omnibus pre-
      trial motion for relief shall be filed and served within 30 days
      after arraignment, unless opportunity therefor did not exist, or
      the defendant or defense attorney, or the attorney for the
      Commonwealth, was not aware of the grounds for the motion, or



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        unless the time for filing has been extended by the court for
        cause shown.

Pa.R.Crim.P. 579(A).

        In this matter, Reinoehl has argued both that he was unaware of the

grounds for the motion and that he has shown good cause for being allowed

an extension.2

        Reinoehl’s first argument is based on his attorney’s claim that they

were unaware of a dissenting memorandum in                 Commonwealth v.

Amatucci, 100 A.3d 322 (Pa. Super. 2014) (unpublished memorandum).

Essentially, the claim is counsel was unaware that the stop, for flicking a

cigarette butt from a car window, may have been pretextual, until counsel

read a dissenting memo in an unpublished decision. We must agree with the

trial court’s analysis in this matter, “Thus, [Reinoehl] is currently arguing he

was unaware of the basis for a meritorious claim by nonsensically relying on

an unpublished dissenting opinion, which cannot possibly, under any

interpretation, be considered as legal support for his claim.”       Trial Court

Opinion at 5.

        Reinoehl’s second argument is based largely on the assertion that

Reinoehl was required to forego filing an omnibus pretrial motion as a

condition of entering A.R.D. Essentially, Reinoehl claims he was not allowed

to file the motion prior to his entry into A.R.D. and he filed the motion within
____________________________________________


2
    We regard this assertion as an “in the interests of justice” argument.




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days of reappointment of counsel following his dismissal from A.R.D. and

well before his August 27, 2015 trial date. Accordingly, the Commonwealth

would have suffered no prejudice had the motion been heard, nor would the

trial have been delayed.

        The trial court has countered Reinoehl’s argument by noting Reinoehl

violated the terms of the agreement by violating the express terms of A.R.D.

and he is, therefore, unable to benefit from his own violation of the A.R.D.

contract.     As noted previously, the trial court stated that Reinoehl

understood “that important rights may be given up or waived, … that [he is]

aware of and understands those rights, and voluntarily, knowingly and

intelligently choose to waive or give up those rights.” 3

        Paragraph 1 of the “Accelerated Rehabilitation Disposition Program:

DUI Application, Agreement, Motion and Order”, referred to by the trial

court, states, in toto:

        1. Speedy trial and related rights. I understand my rights to
        have criminal charges against me disposed of in a speedy
        manner. I also understand that the provisions of Pa.R.Crim.P.
        600 give me the right to have a trial commence within 365 days
        from the date on which charges were filed against me, and that
        violation of speedy trial rights and/or the provisions of Rule 600
        may give me the right to have all criminal charges dismissed.
        Further, I understand that prosecution of the charges will be
        postponed during my participation in the ARD Program and that
        the Commonwealth must be given the right to prosecute me if I

____________________________________________


3
    See A.R.D. Application, ¶1(b).




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      am removed from the ARD Program some time in the future. In
      this regard, I understand the following:

          a) if I violate conditions of the ARD Program, the court
          may remove me from the ARD Program and place my case
          back on the trial list.

          b) if I am removed from the ARD Program, any delay
          caused by participation in and administration of the ARD
          Program will not be counted against the Commonwealth
          for Rule 600 and constitutional speedy trial provision
          purposes. I agree that if my trial begins beyond the time
          period permitted by the rule and constitutional provisions,
          I will give up any right to claim the benefit of speedy trial
          and Rule 600 provisions in regard to the time period during
          which I am on the ARD Program.           In this regard, I
          understand that important rights may be given up or
          waived, represent that I am aware of and understand
          those rights, and voluntarily, knowingly and intelligently
          choose to waive or give up those rights. If I am, for any
          reason, refused admission after waiving such rights, my
          waiver shall be invalidated.

A.R.D. Application, at ¶1(a), (b).

      Hence, the A.R.D. application, referred to by the trial court and quoted

above, refers only to Rule 600 speedy trial rights.       There is no mention

whatsoever in paragraph 1, or anywhere else in the agreement, of foregoing

the right to file an omnibus pre-trial motion. Accordingly, the Adams County

A.R.D. application, by itself, is insufficient to form the basis of a knowing,

voluntary and intelligent waiver of the right to file an omnibus pre-trial

motion.

      If the waiver of the right to file a Pa.R.Crim.P. 578 motion was also a

condition of acceptance into the Adams County A.R.D. program, or that the

time for filing such a motion was not waived, the certified record is silent as



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to when or how Reinoehl was so advised. Without confirmation in the

certified record, we cannot determine the terms of the A.R.D. agreement or

determine if the trial court is correct that Reinoehl knowingly gave up those

rights to obtain the benefits of A.R.D. The Commonwealth suggests that as

Reinoehl was represented at arraignment by counsel, he would have been

fully informed as to the relevant deadlines and requisites of Rule 578 et seq.

Even so, because the certified record is bereft of any additional relevant

information regarding the filing and/or waiver of a Rule 578 Omnibus Pre-

Trial Motion as it pertained to the A.R.D. program, no informed analysis is

possible. Therefore, we must remand this matter for a fact-finding hearing

on the issue of the agreement to forego filing an omnibus pre-trial motion as

a condition of acceptance into the program and whether Reinoehl knowingly,

voluntarily and intelligently entered into the agreement. Said hearing is to

be held within 45 days of the return of the record to the Adams County

Court of Common Pleas.

      Matter remanded for action consistent with this decision. Jurisdiction

relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2016



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