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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.: CP-51-CR-0009452-2011

BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED MAY 24, 2016

Appellant, Earl Johnson, appeals from the judgment of sentence 

entered in the Philadelphia County Court of Common Pleas (CCP) following 

his conviction, after a trial de novo, of possession of a small amount of 

marijuana.1 On appeal, Appellant challenges the denial of his motion to 

suppress evidence by the Municipal Court of Philadelphia (Municipal Court). 

After careful review, we conclude that Appellant has waived his issue and 

affirm the judgment of sentence. 

We take the following relevant facts and procedural history from the 

CCP’s June 24, 2015 opinion and our independent review of the certified 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(31).
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record. On September 3, 2009, at approximately 11:15 a.m., Philadelphia 

Police Officer Michael Haas and his partner, Officer Sliner,2 were directed 

over police radio to respond to an incident at an apartment building. Upon 

arrival at the scene, while waiting for an elevator in the lobby, the officers 

encountered Appellant, whom Officer Haas recognized from a previous 

arrest. Without provocation, Appellant began yelling and cursing at the 

officers. In response, Officer Haas asked Appellant if he lived in the building 

and requested that he produce identification. Appellant removed a large 

bundle of mail from his pants pocket; the bundle included one small bag of 

marijuana. The officers arrested him for the marijuana possession. 

On July 28, 2011, Appellant was tried in the Municipal Court.3 Prior to 

trial, Appellant submitted a motion to suppress evidence, which the 

Municipal Court denied.4 The Municipal Court convicted Appellant of 

possession of a small amount of marijuana, and sentenced him to thirty 

days’ probation. 

____________________________________________

2 Officer Sliner’s first name is not apparent from the record. 

3 The record of the proceedings that took place in the Municipal Court is not 

included in the certified record transmitted to this Court on appeal. 

4

Philadelphia Court Criminal Division Rule 630 governs pre-trial applications 

to suppress evidence in municipal court cases. See Phila. Co. Crim. Div. 

Rule 630. Section D of the Rule provides that in such cases, pre-trial 

applications to suppress shall be heard on the same day set for trial, and the 

judge hearing the application “will hear the same as a Common Pleas Court 

Judge.” Id. at (D).
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On August 17, 2011, Appellant filed a de novo appeal to the CCP. At 

the conclusion of Appellant’s November 10, 2014 de novo bench trial, the 

court found him guilty of the above-stated offense. It sentenced him to time 

served. Appellant did not file any post-trial or post-sentence motions. On 

November 20, 2014, he filed the instant, timely appeal.5

Appellant raises one question for our review: “Did not the [Municipal] 

[C]ourt err in failing to suppress the physical evidence where [A]ppellant 

was subjected to an investigative detention that was not supported by 

reasonable suspicion?” (Appellant’s Brief, at 3).

Our standard of review in addressing a challenge to the 

denial of a suppression motion is limited to determining whether 

the suppression court’s factual findings are supported by the 

record and whether the legal conclusions drawn from those facts 

are correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the suppression court’s factual findings are 

supported by the record, we are bound by these findings and 

may reverse only if the court’s legal conclusions are erroneous. 

Where . . . the appeal of the determination of the suppression 

court turns on allegations of legal error, the suppression court’s 

legal conclusions are not binding on an appellate court, whose 

duty it is to determine if the suppression court properly applied 

the law to the facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

____________________________________________

5

Pursuant to the CCP’s order, Appellant filed a timely concise statement of 

errors complained of on appeal on June 4, 2015. See Pa.R.A.P. 1925(b). 

The court entered an opinion on June 24, 2015, in which it stated its 

determination that Appellant’s issue on appeal is waived. See Pa.R.A.P. 

1925(a); (see also Trial Court Opinion, 6/24/15, at 6).
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Commonwealth v. Best, 120 A.3d 329, 346 (Pa. Super. 2015) (citations 

omitted).

Before we may address the merits of Appellant’s claim, we must 

determine whether he has properly preserved it for appellate review. For 

the following reasons, we agree with the CCP that he has not. (See Trial Ct. 

Op., at 3, 6). 

An appellant convicted in Philadelphia’s Municipal Court 

has two appellate options.

Pennsylvania Rule of Criminal Procedure 

1006(1)(a) provides that a defendant convicted in 

Philadelphia Municipal Court has the right to request 

either a trial de novo or file a petition for a writ of 

certiorari with the Philadelphia Court of Common 

Pleas. This Court has held that when a defendant 

files a petition for a writ of certiorari, the Philadelphia 

Court of Common Pleas sits as an appellate court.

Commonwealth v. Coleman, 19 A.3d 1111, 1118–19 (Pa. 

Super. 2011) (citations omitted). “A trial de novo gives the 

defendant a new trial without reference to the Municipal 

Court record; a petition for writ of certiorari asks the Common 

Pleas Court to review the record made in the Municipal Court.” 

Commonwealth v. Menezes, 871 A.2d 204, 207 n.2 (Pa. 

Super. 2005). These options are mutually exclusive. 

Pa.R.Crim.P. 1008(A) (“The notice [of appeal from a Municipal 

Court ruling] shall state which method of review is being sought 

in the court of common pleas by indicating whether it is a notice 

of appeal or notice of a petition for a writ of certiorari.”).

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

(emphasis added).

“A trial de novo is generally limited to a relitigation of guilt or 

innocence only,” and a defendant is not entitled to relitigate pre-trial 
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motions. Commonwealth v. Douglass, 701 A.2d 1376, 1379 (Pa. Super. 

1997) (citation omitted). Therefore, “a defendant [can] not relitigate at the 

trial de novo issues raised, or which could have been raised, at the Municipal 

Court suppression hearing.” Commonwealth v. Dobson, 405 A.2d 910, 

914 (Pa. 1979). 

This bar on relitigation of pre-trial suppression motions at trials de 

novo is codified in Philadelphia Court Criminal Division Rule 630(G), which 

provides: 

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. 

Phila. Co. Crim. Div. Rule 630(G).

Here, instead of petitioning for a writ of certiorari following his 

Municipal Court conviction, which would have permitted CCP review of the 

suppression motion, Appellant pursued a trial de novo, thereby precluding 

relitigation of the suppression issue at trial. See id.; see also Dobson,

supra at 914; Douglass, supra at 1379. However, as the CCP explained, 

Appellant was not deprived entirely of a means of trial court review of his 

suppression motion by seeking a trial de novo. (See Trial Ct. Op., at 5-6). 

Specifically, Philadelphia Court Criminal Division Rule 630(H) provides a 

mechanism for such review after the trial de novo. The rule states:

In the event a defendant is convicted after appeal and trial de 

novo in the Common Pleas Court, a defendant may raise in an 
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application for a Motion for a New Trial the admissibility of the 

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.

Phila. Co. Crim. Div. Rule 630(H) (emphasis added).

Therefore, in the instant case, following his trial de novo and 

conviction in the CCP, Appellant could have sought the CCP’s review of the 

Municipal Court’s suppression ruling by filing a motion for a new trial. See 

id. However, because Appellant did not file a motion for a new trial, the CCP 

never “review[ed] the transcript and decision of the suppression hearing as 

part of the Common Pleas Court record.” Id. Thus, there is no record on 

the suppression issue in the CCP for this Court to review.

Based on the foregoing, in light of Appellant’s failure to adhere to 

procedural rules regarding pre-trial suppression motions and the consequent 

absence of a record and determination on the suppression issue in the CCP, 

we conclude that Appellant has failed to preserve his suppression claim for 

appellate review. Accordingly, because Appellant waived his sole issue on 

appeal, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Lazarus joins the Memorandum.

Judge Bowes files a Concurring Memorandum in which Judge Lazarus 

joins.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2016