J-A14033-17

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

STEWART ENOS

No. 1131 EDA 2016

Appeal from the Order March 22, 2016

In the Court of Common Pleas of Montgomery County

Criminal Division at No(s): CP-46-CR-0008798-2014

BEFORE: BENDER, P.J.E., BOWES, J., AND SHOGAN, J.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:

FILED DECEMBER 08, 2017

I agree with Judge Bender’s concurring memorandum that the Majority’s 

disposition of the Commonwealth’s second issue renders its analysis of the

first issue obiter dictum. I also write to voice my disagreement with the 

Majority’s determination of the second issue that the trial court abused its 

discretion in ruling on the merits of Stewart Enos’s untimely motion to 

suppress. I believe that the trial court was within its discretion to determine 

that this issue implicated the interests of justice, such that it could assess the 

merits of Enos’s belated motion to suppress. Although I believe it was within 

the court’s purview to entertain the belated motion, I disagree with the 

learned trial judge’s decision to suppress. 
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This matter centers upon a controlled drug buy conducted on July 7, 

2014, in Pottstown, Montgomery County. At that time, the lead investigator, 

Sergeant Michael Markovich of the Pottstown Police Department, solicited the 

aid of a confidential informant (“CI”), in order to make contact with, and 

purchase narcotics from, a suspected drug dealer in the area. After ensuring 

that the CI was not in possession of drugs, money, or drug paraphernalia, 

Sergeant Markovich provided him with twenty dollars in prerecorded money, 

and outfitted the CI with a covert video-recording device. That device did not 

record sound, and it did not transmit an audio/video feed. The CI contacted 

the suspect, whom he knew as “Stew,” and established a time and place to 

transact the drug sale. 

The CI proceeded to the agreed upon location on foot. Sergeant 

Markovich followed the CI in his police vehicle from a short distance. When 

the CI arrived at the meeting point, a white Toyota pick-up truck with tinted 

windows stopped nearby. The CI entered the truck, which proceeded 

approximately one-half block eastward, at which point it stopped and the CI 

exited. The concealed video device recorded the interior of the vehicle during 

this short trip, and captured Enos providing the CI with crack cocaine in 

exchange for the prerecorded money. 

Enos was subsequently arrested and charged with possession with intent 

to deliver a controlled substance, possession of a controlled substance, and 

possession of drug paraphernalia. On March 21, 2016, Enos filed a pre-trial
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motion that sought the disclosure of the identity of the confidential informant. 

He also filed a pre-trial motion in limine, in which he claimed that the video 

recording of the alleged drug transaction was unreliable and could not be 

authenticated without the testimony of the confidential informant. After a 

hearing on the matter, the trial court denied both motions. Immediately 

thereafter, the trial court conducted voir dire, and the jury was empaneled.

On March 22, 2016, the day trial was scheduled to commence, Enos filed 

an untimely motion to suppress the videotaped evidence. Defense counsel 

premised the motion on this Court’s ruling in Commonwealth v. Dunnavant, 

63 A.3d 1252 (Pa.Super. 2013), aff’d by an equally divided court, 107 A.3d 

29 (Pa. 2014), that the concealed recording of the interior of a suspect’s home

during a controlled drug transaction violated that suspect’s constitutional 

rights, and thus, warranted suppression of the video recording. The trial court 

found that, pursuant to Pa.R.Crim.P. 581(B), the opportunity to present the 

suppression issue clearly existed prior to trial since the Dunnavant decision 

had been filed in 2013.

1

 Nevertheless, the court found that it was in the 

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1 The Crimes Code governs motions to suppress evidence, and reads, in 

pertinent part:

(B) Unless the opportunity did not previously exist, or the 

interests of justice otherwise require, such motion shall be 

made only after a case has been returned to court and shall 

be contained in the omnibus pretrial motion set forth in Rule 

578. If timely motion is not made hereunder, the issue of 

suppression of such evidence shall be deemed waived. 
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interests of justice to ignore defense counsel’s procedural miscue, and held a 

hearing on Enos’s suppression motion. 

Following the hearing, the trial court granted Enos’s motion to suppress

and, sua sponte, declared a mistrial based on manifest necessity. The 

Commonwealth filed a timely notice of appeal and certified that the trial court’s 

ruling terminated or substantially handicapped the prosecution. The 

Commonwealth complied with the trial court’s order to file a Rule 1925(b) 

concise statement of errors complained of on appeal, and the trial court 

authored its Rule 1925(a) opinion. This matter is now ready for our review. 

The Commonwealth presents two questions for our review: 

I. Did the trial court err when it extended Commonwealth v. 

Dunnavant, [supra], to suppress a video of a drug 

transaction in [Mr. Enos’s] car, where he had a diminished 

expectation of privacy? 

II. Did the trial court abuse its discretion when it heard [Mr. 

Enos’s] untimely suppression motion after swearing the jury 

when defense counsel admitted that the grounds for that 

motion previously existed and the interests of justice did not 

require it? 

Commonwealth’s brief at 4. 

At the outset, I note that, although the Majority fully considered the 

merits of the Commonwealth’s first issue, its disposition as to the second issue 

renders this discussion merely dicta. The second procedural issue should have 

____________________________________________

Pa.R.Crim.P. 581(B). 
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been addressed first in order to determine whether the first issue was properly 

before this Court. 

Turning to the Majority’s handling of the Commonwealth’s second issue, 

it found that the trial court abused its discretion when it ruled on Enos’s 

untimely motion to suppress. In this vein, the Majority observed that the trial 

court considered Enos’s motion in the “interests of justice,” Pa.R.Crim.P. 

581(B), because it recognized the novelty of his argument, and that failing to 

hear it would almost certainly result in a meritorious PCRA claim contesting 

defense counsel’s stewardship. 

The Majority determined that the trial court erred in utilizing this 

reasoning. First, it noted that, pursuant to Pa.R.Crim.P. 579, a motion to 

suppress must be filed as part of an omnibus pretrial motion within thirty days 

of arraignment, unless the opportunity to do so did not exist, the defendant 

or defense counsel was unaware of the grounds for the motion, or the time of

filing was extended by the court for good cause shown. The Majority 

concluded that none of those exceptions was applicable herein, and 

highlighted that Enos filed a pretrial motion in limine, as detailed above, which 

dealt with the exact same video evidence, yet he did not move to suppress it 

at that time. As Pa.R.Crim.P. 579 delineates the exceptions to the timeliness 

of a pre-trial omnibus motion, I find the Majority’s analysis in this regard 

misses the mark since it is undisputed that Enos did not file his motion prior 

to the commencement of trial. Rather, Pa.R.Crim.P. 581(B), which the trial 
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court expressly relied upon, provides the means by which a trial court may 

consider an untimely motion to suppress which was not included in a pre-trial 

omnibus motion, and hence, our analysis should concentrate on that Rule 

alone. 

The Majority sets forth the appropriate standard of review regarding 

untimely motions to suppress under Pa.R.Crim.P 581(B), which reads, in 

relevant part, as follows:

A defendant may file supplemental motions to suppress, but only 

“unless the opportunity did not previously exist, or the interests 

of justice otherwise require.” Pa.R.Crim.P. 581(B); 

Commonwealth v. Micklos, 448 Pa.Super. 560, 672 A.2d 796, 

802 (1996). “The ‘interest of justice’ exception provides a trial 

judge with discretion to excuse a party’s tardy presentation of a 

suppression motion.” Id. 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. 

Majority Memorandum at 18 (citing Commonwealth v. Johonoson, 844 

A.2d 556, 560-561 (Pa.Super. 2004) (footnote omitted)). 

Essentially, the Commonwealth argues that the trial court abused its 

discretion by misapplying the law enunciated in Dunnavant, supra, which 

did not squarely apply to the clandestine recordings of a drug transaction

occurring within a vehicle. Further, it contends that by basing its 

determination on a potentially meritorious PCRA claim in a subsequent 

proceeding, the trial court deprived the Commonwealth of an opportunity to 
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fully litigate that issue in the proper setting, and under the proper 

jurisprudential backdrop. 

The Majority found this reasoning persuasive, and, in addition, noted 

that defense counsel’s errors were especially egregious since jeopardy had 

attached to the proceedings, and he could provide no justification for why he 

had not brought this issue before the court prior to trial, other than his own 

negligence. In my view, respectfully, the Majority should have ended its 

analysis here and ordered reversal on that basis. Nevertheless, it proceeded 

to address the merits of the decision to suppress and concluded that the trial 

court abused its discretion in suppressing the video evidence obtained by the 

Commonwealth.

I would not find that the trial court abused its discretion in considering 

Enos’s untimely motion to suppress. Rule 581(B) sets forth two exceptions 

when a trial court may consider such an untimely motion: when the 

opportunity did not previously exist, or when the interests of justice otherwise 

require. Pa.R.Crim.P. 581(B). As outlined above, the “interests of justice” 

exception provides the trial judge with discretion to hear such untimely 

motions. Johonoson, supra. When considering that Enos’s untimely 

motion to suppress falls squarely within the auspices of Rule 581(B), and the 

trial court expressly resolved its decision on the interests of justice, I would 

limit my analysis to those facts and considerations relevant to that 

determination. Hence, the Majority’s reliance on defense counsel’s admitted 
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missteps, which are germane to the first exception under Rule 581(B), seems 

particularly out-of-place when evaluating whether the court abused its 

discretion in considering the untimely motion in the “interests of justice.” 

I acknowledge that this Court has previously held that the trial court 

should exercise its discretion to hear an untimely suppression motion “where 

the merits of counsel’s [motion] were so apparent that justice required it be 

heard.” Commonwealth v. Long, 753 A.2d 272, 280 (Pa.Super. 2000) 

(citing Commonwealth v. Hubbard, 372 A.2d 687, 693 (Pa. 1977)). 

Nevertheless, I would not limit this principle as narrowly as the 

Commonwealth advocates, that is, only to situations where the law “clearly 

supported the defendant’s motion[.]” Commonwealth’s brief at 26. 

In my mind, if we permit the trial court to consider an untimely motion 

to suppress only where the law “clearly supports” that decision, then we leave 

no room for the court to exercise its discretion. Such an outcomedeterminative analysis transmutes the exercise of discretion into a mere 

administration of mandated law. This reading alters our analysis from one of 

“apparent merit” to one of “actual merit.” Further, doing so limits the reach 

of zealous advocacy, and stifles, as was the case here, robust discussion of an 

otherwise significant constitutional question. 

Here, Enos presented a motion to suppress seeking to extend 

Dunnavant’s holding to the interior of an individual’s personal vehicle. He 

presented a reasonable position with arguable merit. After considering the 
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facial rationality of that motion, the trial court determined that justice would 

be best served by permitting a hearing on the topic.2 The trial court further 

supported this decision by noting that defense counsel’s failings likely 

constituted a meritorious claim for ineffective assistance of counsel during 

collateral review. Therefore, it concluded that it would be a waste of judicial 

resources to withhold argument on the matter until a later proceeding. 

In my mind, such a ruling is a quintessential exercise of trial court 

discretion, and we need not, nor should we, rely upon our resolution of Enos’s 

first claim in arriving at that conclusion. Rather, we should review the trial

court’s exercise of discretion from its perspective at the time Enos submitted 

his untimely motion, without the benefit of hindsight. The trial court was 

persuaded by defense counsel’s position, wrought through zealous advocacy. 

We should not quarrel with the trial court’s exercise of its discretion after the 

fact simply because, on appellate review, we would not be similarly swayed. 

From the face of the untimely motion to suppress, Enos’s position had 

apparent merit, and thus, the trial court did not abuse its discretion in 

____________________________________________

2

It bears stating that I believe that the evaluation of the apparent merit of 

Enos’s motion to suppress was alone sufficient to support the trial court’s 

finding that it was in the interests of justice to hold a hearing. The trial court’s 

estimation of the merits of a subsequent PCRA claim are not relevant to this 

determination. Nonetheless, considerations of judicial economy certainly play 

some role when evaluating the interests of justice in this context, however, I 

am not persuaded by the trial court’s reasoning in this regard herein. 
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considering it. Accordingly, I would reach the merits of the Commonwealth’s 

initial challenge. 

With regard to the Commonwealth’s first contention, the Majority 

reasoned that the issue was controlled by Commonwealth v. Blystone, 549 

A.2d 81 (Pa. 1988), and that Enos “forfeited his decreased reasonable 

expectation of privacy in his automobile when he invited the CI into it.” 

Majority Memorandum at 11. It observed that, “[o]nce he opened his car to 

the CI, he relinquished any reasonable expectation of privacy and the 

protections of the Fourth Amendment and Article I, Section 8, and he risked 

that the entire transaction could be recorded and given to the police.” Id. at 

11-12. Hence, the Majority concluded that the trial court abused its discretion 

in extending the Dunnavant case to the surreptitious video recording of a 

controlled drug buy within a suspect’s car. Insofar as this analysis is 

concerned, I agree with the Majority’s legal reasoning and application of 

Blystone, supra, to the facts at hand. As such, in light of the above, I offer 

this concurring and dissenting memorandum.