J-A11002-18

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COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT 

OF PENNSYLVANIA

Appellee

v.

AMAVILES MARTINEZ, JR.

Appellant No. 1350 MDA 2017

Appeal from the Judgment of Sentence July 31, 2017 In the 

Court of Common Pleas of Berks County Criminal Division at Nos:

CP-06-CR-0000907-2014

BEFORE: STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY STABILE, J.: FILED AUGUST 14, 2018

Appellant, Amaviles Martinez, Jr., appeals from his judgment of 

sentence of six to fifteen years’ imprisonment for possession of a firearm by 

a felon1 and possession of controlled substances with intent to deliver.2 We

affirm.

On February 6, 2014, Berks County probation officers visited Appellant’s 

residence while Appellant was on probation for a corrupt organizations 

conviction. The officers discovered a substantial amount of marijuana and a 

firearm during the visit. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105.

2 35 P.S. § 780-113(a)(30).
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On March 21, 2014, the Commonwealth filed an information charging 

Appellant with the above offenses along with possession of drug 

paraphernalia. The trial court granted Appellant an extension of time until 

May 16, 2014 to file omnibus pretrial motions. Appellant did not file a motion 

to suppress until October 24, 2016, two years and five months after the 

extended deadline. On October 27, 2016, the trial court denied the 

suppression motion as untimely. 

Almost two months later, on December 22, 2016, Appellant filed a 

motion seeking reconsideration of the order denying his suppression motion. 

Appellant admitted that his initial motion was both untimely and boilerplate in 

nature but asked the court to excuse these defects in the interests of justice. 

On December 27, 2016, the trial court denied the motion for reconsideration. 

On March 13, 2017, Appellant filed a second motion for reconsideration 

fleshing out his argument for suppression. In essence, Appellant asserted 

that (1) on the afternoon of February 6, 2014, probation officers visited his 

residence without advance notice and demanded entry without any reasonable 

suspicion of any criminal wrongdoing; (2) Appellant did not voluntarily consent 

to their entry; (3) during the visit, the probation officers obtained 

incriminating statements from Appellant without first providing Miranda3

warnings; and (4) based on these incriminating statements, a probation officer 

found marijuana in the living room, and (5) a police officer who responded to 

____________________________________________

3 Miranda v. Arizona, 384 U.S. 436 (1966).
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the probation officer’s call unlocked a bedroom door and found a gun inside. 

On March 17, 2017, the court denied Appellant’s second motion for 

reconsideration. 

The trial court granted the Commonwealth’s motion to sever the 

firearms charge from the other charges. During trial on the firearms charge, 

Appellant’s wife testified that she owned the firearm instead of Appellant and 

that she obtained the firearm to “protect her family.” N.T., 6/7/17, at 136. 

Nevertheless, the jury found Appellant guilty of the firearms charge. On July 

26, 2017, the trial court, sitting without a jury, found Appellant guilty of the 

remaining charges. 

On July 31, 2017, the trial court imposed sentence. Appellant filed 

timely post-sentence motions, which the trial court denied, and a timely notice 

of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925. 

The trial court stated in its opinion that it denied Appellant’s initial suppression 

motion and two motions for reconsideration because they were untimely and 

boilerplate in nature. Trial Ct. Op., 10/5/17, at 4-5. 

Appellant raises two issues in this appeal:

A. Whether the trial court erred and abused its discretion first, by 

failing to hold a pretrial evidentiary hearing on Appellant’s 

amended motion to suppress based on violation of the Appellant’s 

rights under the Fourth and Fifth Amendments to the United 

States constitution and analogous provisions of the Pennsylvania 

constitution, and second, thereby in effect denying the motion to 

suppress?

B. Whether, in this prosecution of [Appellant] for alleged unlawful 

possession of a firearm, the trial court erred and abused its 
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discretion by barring [Appellant’s] wife from testifying to the 

circumstances supporting her testimony that she alone obtained 

the firearm for protection of her household and family?

Appellant’s Brief at 2. 

In his first argument, Appellant objects to the trial court’s refusal to hold 

a pretrial hearing due to the tardiness of his suppression motion. We review 

decisions denying leave to file an untimely suppression motion for abuse of 

discretion. Commonwealth v. Long, 753 A.2d 272, 279 (Pa. Super. 2000). 

The Rules of Criminal Procedure require defendants to file suppression 

issues within an omnibus pretrial motion. Pa.R.Crim.P. 581(B). The 

defendant must file and serve the omnibus motion “within 30 days after 

arraignment . . . unless the time for filing has been extended by the court for 

cause shown.” Pa.R.Crim.P. 579(A). If the defendant files an untimely 

suppression motion, “the issue of suppression of such evidence shall be 

deemed to be waived” unless the court excuses the defendant’s tardiness in 

the “interests of justice.” Pa.R.Crim.P. 581(B). The “interests of justice” test 

requires consideration of “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. Brown, 378 A.2d 1262, 1266 (Pa. Super. 1977). 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), 
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overruled on different grounds, Commonwealth v. Grant, 813 A.2d 726, 

738 (Pa. 2002).

Courts are unwilling to apply the “interests of justice” exception in the 

defendant’s favor when he raises an untimely suppression issue whose merits 

are not apparent. Hubbard, 372 A.2d at 695 (where officers requested 

consent to inspect defendant’s automobile and boots after short, informal 

questioning period in defendant’s home in which officers twice advised 

defendant of his right to refuse consent, defendant’s motion at murder trial to 

suppress evidence relating to automobile and boots on ground that he had not 

been advised of his Miranda rights before consenting to inspection did not 

raise apparently meritorious claim; thus, “interests of justice” did not require 

that such motion be heard). Courts are also reluctant to excuse untimely 

motions arguing issues that the defendant could have timely raised by the 

original due date. Commonwealth v. Johonoson, 844 A.2d 556, 561 (Pa. 

Super. 2004) (trial court properly denied defendant’s supplemental 

suppression motion as untimely where defendant knew facts and 

circumstances surrounding traffic stop at time of original suppression motion 

but limited original motion to different issue and did not file supplemental 

motion until four months later, after court had denied original motion); 

compare Commonwealth v. Long, 753 A.2d 272, 279-80 (Pa. Super. 2000) 

(trial court properly considered, in prosecution for driving under the influence, 

defendant’s oral suppression motion presented at conclusion of 

Commonwealth's case, on ground that recently obtained videotape of traffic 
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stop and arresting officer’s trial testimony provided basis for the motion not 

available pretrial).

In this case, the original deadline for Appellant’s motion to suppress was 

Monday, April 21, 2014, thirty days after Appellant’s arraignment. 

Pa.R.Crim.P. 579(A). Appellant requested and received an extension to file 

his motion until May 14, 2014. Despite this extension, he did not file his 

original suppression motion until October 24, 2016, two years and five months 

after the extended deadline, and he failed to present good cause for this 

lengthy delay. Bluntly put, Appellant displayed abject indifference to the 

court’s schedule. Moreover, Appellant’s original motion and initial motion for 

reconsideration were boilerplate in nature. His second motion for 

reconsideration, which claimed that the probation officers performed the 

search without his consent and failed to provide Miranda warnings, was more 

detailed than his prior motions, but its merit was not “so apparent that justice 

required it be heard.” Hubbard, 372 A.2d at 693. Further, nothing prevented 

Appellant from raising these arguments 21⁄2 years earlier in a timely 

suppression motion. We conclude that the trial court acted within its 

discretion by denying Appellant’s original motion to suppress and motions for 

reconsideration without a hearing. 

In his second argument, Appellant contends that the trial court erred by 

precluding Appellant’s wife from explaining her reasons for obtaining the 

firearm that law enforcement officers discovered in the residence. We review 
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the trial court's evidentiary rulings for abuse of discretion. Commonwealth 

v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007). 

We conclude that this ruling was a proper exercise of the trial court’s 

discretion. The court explained that it permitted Appellant’s wife to testify 

that the gun belonged to her and not Appellant, but it barred testimony about 

her reasons for owning the gun because they “[had] no bearing on any 

material fact. The material fact in this case was possession of the gun by 

Appellant. Whether [Appellant’s wife] had acquired the gun legally or with a 

substantial justification was irrelevant [to whether Appellant was in possession

of the gun].” Trial Ct. Op. at 9 (emphasis added). We also observe that this 

ruling did not prejudice Appellant, for his wife still managed to explain her 

reason for obtaining the gun by testifying that she needed the gun to “protect 

her family.” N.T., 6/7/17, at 136. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/14/18