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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellant       :
                                            :
                    v.                      :
                                            :
MALIK K. COLLES,                            :
                                            :
                            Appellee        :     No. 113 EDA 2014

                Appeal from the Order Entered December 4, 2013
              In the Court of Common Pleas of Philadelphia County
               Criminal Division No(s).: CP-51-CR-0000625-2013

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                         FILED MARCH 03, 2016

        This Court previously remanded this matter to determine if the

Commonwealth perfected this interlocutory appeal1 from the Philadelphia

County Court of Common Pleas’ order suppressing the Commonwealth’s

evidence against Appellee, Malik K. Colles.      The trial court has responded

and filed a supplemental record. The Commonwealth claims the trial court

erred in concluding that no exigent circumstances justified the police officers

warrantless entry into a “speakeasy” where they subsequently observed

Appellee attempt to dispose of a handgun. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    See Pa.R.A.P. 311(d).
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     On December 29, 2012, at 4:00 a.m., “numerous” Philadelphia police

officers were conducting “an illegal liquor establishment check at 4721

Oxford Avenue.” N.T. Suppression, 10/10/13, at 6. Officer Winkler 2 told his

partner, Officer Robert Bakos, that he “observed a male with a sawed-off

shotgun tucked inside his jacket.” Id. at 7. Officer Bakos testified he also

saw a shotgun “slung over [the male’s] shoulder[ and] protruding from his

jacket.” Id. at 10.   Officers Bakos and Winkler “engaged that male in a foot

pursuit” to the front door of the establishment, and the individual entered

the building. Id. at 7. According to Officer Bakos, “[A]s we attempted to

get into the front door, another male attempted to lock us out.      We were

able to push the door open.” Id.

     Once inside, the officers went to the third floor, where there were

approximately 75 to 100 people, a bar, a stage, and a DJ. Id. Officer Bakos

testified Officer Winkler “recovered a sawed-off shotgun.”3    Id.    Officer

Bakos was “investigating other males[,]” when he heard another officer yell

for help.   Id.   He observed Officer Vitaliy St. Onge “struggling” with

Appellee.   Id. at 7-8.   Officer Bakos ran to assist Officer St. Onge and

observed a firearm “in close proximity.” Id. at 8. He seized the firearm, a



2
  Officer Winkler did not testify at the suppression hearing, and his first
name is not indicated in the record.
3
  The Commonwealth did not present additional evidence regarding the
shotgun seized inside the establishment.



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.25 caliber Raven handgun loaded with seven rounds, and assisted Officer

St. Onge with taking Appellee into custody. Id.

     Officer    St.   Onge    testified   he    participated   in   the    illegal   liquor

establishment check. Id. at 15. He stated he saw Officer Bakos chasing “an

unknown black male.”         Id.   Officer St. Onge exited his vehicle, joined the

pursuit, and ran to the third floor of the establishment.            Id.     He recalled

that Officer Bakos stopped the male and began an investigation. Id. at 15,

19. Meanwhile, Officer St. Onge was “just standing there making sure the

scene was safe[,]” when he observed Appellee seated at the bar, “facing

away from [him].” Id. at 15. According to Officer St. Onge:

        I observed [Appellee’s] body pressed against . . . the edge
        of the bar. And that’s when I observed him discarding a
        silver handgun between his legs.

        . . . I approached [Appellee]. He looked in my general
        direction. He stood up and he started walking away. I
        grabbed him by his arm, I believe. And that’s when a
        short struggle ensued. He clearly was trying to move
        away from me and from the location of where he discarded
        the weapon.

Id. at 15-16.

     On cross-examination, Appellee’s counsel asked Officer St. Onge

whether he saw the unknown male “doing anything illegal” before chasing

him into the establishment.         The officer testified he did not recall seeing

“anything.” Id. at 19-20.




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        Appellee was charged with resisting arrest and possessing a firearm

without a license.4 On June 5, 2013, Appellee filed a motion to suppress the

evidence     against    him,   asserting   “[t]he   Officers[’]   entry   into    the

establishment was an unlawful search and seizure in the absence of a signed

search warrant” and “there were no exigent circumstances which negated

the requirement for a search warrant.”              Appellee’s Mot. to Suppress

Evidence, 6/5/13, at ¶ 2, 2(b).        The trial court convened a hearing on

October 10, 2013, at which Officers Bakos and St. Onge testified.                 The

Commonwealth argued that (1) the officers “did not need a search warrant

to enter the building” because they were in “hot pursuit” and (2) there was

no evidence the establishment was a private property. N.T., 10/10/13, at

23-24. The trial court took the matter under advisement. On December 4,

2013, the court announced it was granting Appellee’s motion because it

found “there [were] no exigent circumstances . . . .” N.T., 12/4/13, at 2.

The court did not enter further findings of fact or conclusions of law.

        The Commonwealth filed a Pa.R.A.P. 1925(b) statement on Friday,

January 3, 2014, the thirtieth day after the court’s ruling. That same day, it

attempted to file a notice of appeal, but that document was “filed with a

defect in that it was electronically filed into the wrong category.”             N.T.,

10/26/15, at 3.        The Commonwealth refiled its notice of appeal on the



4
    18 Pa.C.S. §§ 5104, 6106.



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following business day, Monday, January 6, 2014, when it received notice

that its initial filing was rejected. Id.

      The trial court prepared a Pa.R.A.P. 1925(a) opinion.            The court

determined, inter alia, “Officer Bakos’ claim that [the officers’] warrantless

entry was the result of a hot pursuit of a male observed with a sawed-off

shotgun does not have the ring of truth under these circumstances . . . .”

Trial Ct. Op., 1/16/15, at 3.

      Preliminarily, we must consider the facial untimeliness of the notice of

appeal and the supplemental record prepared by the trial court.              See

Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc)

(reiterating timeliness of notice of appeal implicates this Court’s jurisdiction).

Instantly, the parties agree the trial court entered its order granting

suppression on December 4, 2013, and the Commonwealth attempted to file

its notice of appeal electronically on January 3, 2014, the thirtieth day after

the order.    The Commonwealth filed a Pa.R.A.P. 1925(b) statement that

same day.      The court credited the Commonwealth’s explanation that its

failure to file a notice of appeal on January 3rd was due to a technical error

and it promptly refiled after it received notice of the filing’s rejection.5 N.T.,

10/26/15, at 3. Under these circumstances, we discern no basis to disturb


5
    The Commonwealth averred it “re-E-filed” its notice of appeal. N.T.,
10/26/15, at 3.       We infer that the attempted January 3, 2014 filing
contained the same Pa.R.A.P. 311(d) certification as the actual January 6th
filing in the record.



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the court’s determination that the Commonwealth’s attempted filing of the

notice of appeal perfected this appeal. See Commonwealth v. Willis, 29

A.3d 393, 395-96 (Pa. Super. 2011).

     The Commonwealth presents the following question for review:

        Where officers in pursuit of a fleeing man with a gun
        entered a bar and saw [Appellee] respond by throwing his
        own illegal firearm to the floor, did the [trial] court err in
        suppressing [Appellee’s] gun on the ground that the
        officers needed a warrant to enter notwithstanding the
        pursuit?

Commonwealth’s Brief at 4.

     The Commonwealth asserts, in relevant part,

           In its opinion, written over one year after the
        suppression hearing, the [trial] court belatedly attempts to
        justify its suppression order by stating, for the first time,
        that it did not find credible the uncontradicted testimony of
        the two officers who explained that they entered the
        building because they were pursuing a man with a sawed-
        off shotgun.       However, in violation of Criminal Rule
        581(I),[ ] the [trial] court never made findings of fact and
        conclusions of law on the record.

                                 *    *    *

           Where, as here, the [trial] court fails to make factual
        findings on the record, “the appellate court should consider
        only the evidence of the prevailing suppression party . . .
        and the evidence of the other party . . . , that, when read
        in   the   context    of   the   entire   record,   remains
        uncontradicted.” Therefore, this Court should disregard
        the [trial] court’s after-the-fact attempt to justify its
        suppression ruling and focus only on the uncontradicted
        evidence presented by the Commonwealth.

Id. at 10-11 (citations omitted).     The Commonwealth asserts there is

differing authority regarding an appellate court’s reliance on a Pa.R.A.P.


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1925(a) opinion for findings of fact and credibility when the trial court did

not comply with Pa.R.Crim.P. 581(I). Id. at 12 n.3. (discussing, inter alia,

Commonwealth        v.   Millner,    888     A.2d   680   (Pa.   2005),    and

Commonwealth v. Reppert, 814 A.2d 1196 (Pa. Super. 2002) (en banc)).

It relies on Millner to argue that a reading of the present record entitles it

to relief.6 See id. at 11-12. We disagree.

      As noted by the Commonwealth, our standard of review is as follows:

         [W]hen an appellate court reviews the ruling of a
         suppression court, we consider only the evidence from the
         defendant’s witnesses together with the evidence of the
         prosecution that, when read in the context of the entire
         record,[7] remains uncontradicted.       We must “first
         ascertain whether the record supports the factual findings
         of the suppression court, and then determine the
         reasonableness of the inferences and legal conclusions
         drawn therefrom.”


6
  The Commonwealth has abandoned its claim that the “speakeasy” should
not be deemed private property.     See N.T., 10/10/13, at 23-24;
Commonwealth’s Brief at 4, 7; see also Commonwealth’s Statement of
Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 1/3/14.
Appellee has not filed a brief.
7
  The Pennsylvania Supreme Court, in In re L.J., 79 A.3d 1073 (Pa. 2013),
has more recently clarified that the scope of review for a suppression issue is
limited to the record available to the suppression court. In re L.J., 79 A.3d
at 1085, 1089. However, In re L.J., which was decided on October 30,
2013, is prospective and clearly does not apply when both the proceeding
was commenced and the suppression hearing occurred before the date of
that decision. See id. at 1088-89 & n.19; Commonwealth v. Eichler, ___
A.3d ____, ___, 2016 WL 410018 at *4 (Pa. Super. Feb. 2, 2016).
Moreover, because there was no trial in the instant case, the specific
concerns addressed in In re L.J.—i.e., reviewing the trial testimony to
support a suppression ruling—are not present in this appeal. See In re
L.J., 79 A.3d at 1080-82.



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Commonwealth v. Rosas, 875 A.2d 341, 346 (Pa. Super. 2005) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Dutrieville, 932 A.2d 240, 242 (Pa. Super.

2007) (citation omitted).

      Pennsylvania Rule of Criminal Procedure 581(I) states:

         At the conclusion of the hearing, the judge shall enter on
         the record a statement of findings of fact and conclusions
         of law as to whether the evidence was obtained in violation
         of the defendant’s rights, or in violation of these rules or
         any statute, and shall make an order granting or denying
         the relief sought.

Pa.R.Crim.P. 581(I).

             A specific and contemporaneous announcement of
         suppression findings of fact and conclusions of law serves
         at least two salutary purposes. First, it permits the losing
         party to make a more intelligent assessment of whether or
         not to burden the appellate justice system with an appeal
         of the suppression ruling, particularly in cases of contested
         evidence.     A defensible credibility-based decision may
         dissuade an appeal, whereas a purely legal ruling may
         make clear that further review is appropriate.[ ] Second, .
         . . in cases where suppression is denied . . . Rule 581(I) is
         essential to ensuring that the trial judge and the appellate
         courts will have a record upon which they can timely and
         meaningfully discharge their responsibilities.

Millner, 888 A.2d at 688-89.

      Instantly, there is some merit to the Commonwealth’s assertion that it

could not discern the precise basis of the trial court’s terse statement that

“there [were] no exigent circumstances . . . .”    N.T., 12/4/13, at 2.   The

court, as it later indicated in its Pa.R.A.P. 1925(a) opinion, disbelieved the


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circumstances alleged by the Commonwealth—i.e., the observation of an

individual with a sawed off shotgun and the pursuit of the individual into the

establishment.    Alternatively, though less probably, the court may have

found that the circumstances existed, but did not constitute an exigency.

Thus, we accept the Commonwealth’s first premise that the trial court’s

ruling did not comport with the purposes of Rule 581(I). See Millner, 888

A.2d at 688-89.

      However, we find no support for the Commonwealth’s suggested

remedy for noncompliance with Rule 581(I), namely, disregarding the

credibility and factual findings in the trial court’s Pa.R.A.P. 1925(a) opinion.

See Commonwealth’s Brief at 11-12. The general remedy is a remand for

compliance with Rule 581(I). See Commonwealth v. Grundza, 819 A.2d

66, 68 (Pa. Super. 2003).       However, we may consider the merits of an

appeal if “a remand for compliance would not serve the interests of judicial

economy or justice.” See Millner, 888 A.2d at 689; accord Reppert, 814

A.2d at 1200 (relying on findings set forth in Pa.R.A.P. 1925(a) opinion);

Dutrieville, 932 A.2d at 243 n.2 (same).

      In Millner, the suppression hearing evidence was contested and the

Pennsylvania Supreme Court noted the “disservice attending” the trial

court’s failure to comply with Rule 581(I).    See Millner, 888 A.2d at 689

n.4. However, the Millner Court did not disregard the trial court’s findings

of fact and credibility.   Rather, it addressed narrow legal issues that were



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determinable based on the application of the proper standard of review to

the record.8   See id.   The Court further noted that “[t]he Commonwealth

willingly pose[d] its argument under the version of facts most harmful to its

position.” See id. at 689.

      Thus, our    review    reveals no   support for    the   Commonwealth’s

suggestion that we disregard belated findings of fact and credibility set forth

in a Rule 1925(a) opinion.    Instead, this Court remains bound to the trial

court’s findings that are supported in the record. See Dutrieville, 932 A.2d

at 242; Rosas, 875 A.2d at 346.

      In the instant case, Officer Bakos testified that Officer Winkler told him

he saw a man with a sawed-off shotgun and that he (Officer Bakos)

personally observed a shotgun being carried by the unknown individual

before giving chase. N.T. at 7, 10. Officer St. Onge, however, was not able

to corroborate Officer Bakos’ testimony and joined the chase only after he

saw Officer Bakos pursuing the individual. Officers Bakos and St. Onge gave

inconsistent testimony regarding whether the individual was apprehended

inside the establishment.     The Commonwealth did not adduce evidence


8
  Specifically, the Millner Court addressed “[the] proper understanding of
the defendant’s preliminary burden at a suppression hearing” regarding a
reasonable expectation of privacy. Millner, 888 A.2d at 690. It emphasized
in that case that no evidence demonstrated the defendant possessed a
privacy interest in a subject vehicle. Id. at 692. Thus, the Millner Court
found legal error in the trial court’s suppression of a gun found in the subject
vehicle and this Court’s affirmance of the trial court. See id. at 692.




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corroborating Officer Bakos’ testimony that Officer Winkler seized a shotgun

inside the establishment. The trial court also found probative Officer Bakos’

testimony that the officers were engaged in a “liquor establishment check”

without a warrant.

      In light of the foregoing, we discern no basis upon which to conclude

that the trial court’s belated credibility determination and factual findings

were manifestly unreasonable. See Dutrieville, 932 A.2d at 242; Rosas,

875 A.2d at 346.        Moreover, we conclude that a remand for perfect

compliance with Pa.R.Crim.P. 581(I) “would not serve the interests of

judicial economy or justice” as the trial court’s rejection of the factual basis

of the Commonwealth’s claim of exigent circumstances had some support in

the record. See Millner, 888 A.2d at 689; accord Reppert, 814 A.2d at

1200; Dutrieville, 932 A.2d at 243 n.2. Lastly, because we are bound by

the trial court’s finding that the officers did not observe the unknown male

carrying a shotgun, we discern no legal error in the trial court’s rejection of

the Commonwealth’s claim that that exigent circumstances justified the

officers’ warrantless entry into the establishment.

      Order affirmed.

      Shogan, J. joins this memorandum.

      Mundy, J. concurs in result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/3/2016




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