Com. v. Baez, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
AARON BAEZ : No. 169 EDA 2021
Appeal from the Order Entered December 11, 2020
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001739-2019
BEFORE: KUNSELMAN, J., NICHOLS, J., and STEVENS, P.J.E.*
DISSENTING STATEMENT BY STEVENS, P.J.E.: FILED DECEMBER 01, 2021
I respectfully dissent from the Majority’s disposition in this matter. My
review of the record simply does not support the Majority’s conclusion that
the suppression court did not abuse its discretion in failing to deny Appellee’s
omnibus suppression motion as untimely.
Pennsylvania Rule of Criminal Procedure 579(A) provides that a
defendant must file and serve a suppression motion “within 30 days after
arraignment, unless opportunity therefor did not exist, or the defendant or
defense attorney … was not aware of the grounds for the motion, or unless
the time for filing has been extended by the court for cause shown.”
Pa.R.Crim.P. 579(A). Pursuant to Rule 581(B), if the defendant files an
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* Former Justice specially assigned to the Superior Court.
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untimely suppression motion, “the issue of suppression of such evidence shall
be deemed to be waived,” unless the opportunity to raise such issue did not
previously exist or the suppression court excuses the defendant’s tardiness in
the “interests of justice.” Pa.R.Crim.P. 581(B).
The interests of justice exception provides a trial
judge with discretion to excuse a party’s tardy
presentation of a suppression motion. The factors to
be considered should include the length and cause of
the delay, the merits of the suppression claim, and the
court’s ability, considering the complexity of the
issues and the availability of the witnesses, to hold the
hearing promptly.
Commonwealth v. Castro, Jr., 2020 WL 1231630, at *2 (Pa.Super. 2020)
(citations and internal quotation marks omitted).
The trial court should invoke the “interests of justice” exception when
“the merits of counsel’s [untimely] motion [are] so apparent that justice
require[s] that it be heard.” Commonwealth v. Hubbard, 372 A.2d 687,
693 (Pa. 1977), overruled on different grounds, Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002).
Contrary to the Majority, my review of the record in this matter reveals
that the suppression court abused its discretion in concluding that the
interests of justice warranted consideration of Appellee’s untimely suppression
motion.
The record reflects that Appellee failed to file his suppression motion
within the 30-day period provided for in Rule 579(A) and otherwise did not
meet any of the timeliness exceptions under Rule 581(B). Appellee was
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arraigned on September 4, 2019 and had until October 4, 2019 to file a timely
suppression motion. Appellee filed his suppression motion on April 16, 2020,
which was 195 days past the deadline, and thus, patently untimely.
In his untimely suppression motion, Appellee sought to suppress a
firearm seized from his backpack by a third party (“Christine Monaco”) and
various incriminating statements he made to police. See “Omnibus Pretrial
Motion,” 4/16/20 at ¶¶ 3-17. The Commonwealth aptly notes that “[t]hese
issues were known to [Appellee] early in the case, arguably at the time of his
arrest and disclosed in the police incident report provided in the initial
discovery.” Commonwealth’s Brief at 18.
Moreover, the record reflects that Appellee neither explained the
apparent untimeliness of the motion nor showed good cause for the lengthy,
195-day delay. At no point in the proceedings did Appellee request an
extension of time to file a timely suppression motion, despite appearing before
the court on multiple occasions.
Despite the shortcomings in Appellee’s untimely suppression motion,
the Majority found that the suppression court properly excused the untimely
filing in the “interests of justice,” noting that the merits of the motion were
apparent. I do not agree that they are.
On the contrary, a review of Appellee’s sparse, 2-page suppression
motion reveals that he failed to articulate sufficient facts that would have
rendered apparent the merits of the motion, namely that Christine Monaco
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was somehow acting as an agent of the state when she searched Appellee’s
bag. See e.g., Hubbard, 372 A.2d at 695 (noting that the “interests of
justice” exception does not require that a defendant’s untimely suppression
motion be heard when the merits of the suppression issue are not apparent).
Accordingly, I find that the suppression court did not have a proper basis
for applying the “interest of justice” exception to the timeliness requirement
of Rule 579(A) to excuse Appellee’s untimely suppression motion.
Based on the foregoing, I would vacate the order granting Appellee’s
suppression motion and remand this case for further proceedings. Therefore,
I respectfully dissent.
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