Commonwealth v. Saunders

Full title: COMMONWEALTH OF PENNSYLVANIA v. CORY SAUNDERS, Appellant

Court: SUPERIOR COURT OF PENNSYLVANIA

Date published: Apr 19, 2017

J-S17035-17 (Pa. Super. Ct. Apr. 19, 2017)

Opinion

J-S17035-17 No. 3656 EDA 2015

04-19-2017

COMMONWEALTH OF PENNSYLVANIA v. CORY SAUNDERS, Appellant

MEMORANDUM BY MUSMANNO, J.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence November 6, 2015 in the Court of Common Pleas of Philadelphia County, Criminal Division, No(s): CP-51-CR-0013879-2013 BEFORE: OLSON, STABILE and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:

Cory Saunders ("Saunders") appeals from the judgment of sentence imposed following his conviction of possession of a controlled substance with intent to deliver and conspiracy.¹ We affirm.

1 See 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 903.

In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 8/24/16, at 1-6.

After Saunders filed his court-ordered Pa.R.A.P. 1925(b) Concise Statement, the trial court entered an Opinion, pursuant to Pa.R.A.P. 1925(a), wherein it determined that Saunders's first issue raised in the Concise Statement was waived for (1) failure to raise it before the trial court; and (2) lack of specificity. See Trial Court Opinion, 8/24/16, at 6-8. The trial court further determined that Saunders's second issue raised in the Concise Statement was waived for lack of specificity. See id. at 8-9.

On appeal, Saunders raises the following issues for our review:

1. Did the trial court violate [Saunders's] constitutional rights to due process and equal protection by finding that the claims presented on appeal were not sufficiently identified to have placed the trial court on notice of their nature?

2. Did the trial court violate [Saunders's] constitutional rights under the 4^th Amendment of the U.S. Constitution[,] and Article 1[,] sec. 8 of the Pennsylvania Constitution[,] when it failed to suppress the fruits of an unlawful vehicle search[,] which was made without probable cause?

3. Did the trial court violate [Saunders's] rights under the 6^thand 14^th Amendments of the U.S. Constitution[,] and Article 1[,] sec. 8 of the Pennsylvania Constitution[,] were violated [sic] in that there was insufficient evidence to support the verdict?

Brief for Appellant at 3.

In his first issue, Saunders contends that the trial court erred by determining that the issues raised in his Concise Statement were waived for lack of specificity. Id. at 11. Saunders asserts that his case was not factually or legally complex, as he was the sole defendant; he was convicted of only two charges; and the evidence for both convictions was the same. Id. Saunders claims that his Concise Statement sufficiently identified his claims on appeal, and requests remand of the case to the trial court to issue a new Pa.R.A.P. 1925(a) Opinion addressing Saunders's claims. Id. at 13.

Saunders has failed to address the trial court's additional ruling that the first claim raised in his Concise Statement was waived on the basis that he failed to preserve the claim before the trial court. See Trial Court Opinion, 8/24/16, at 6-8. In his Concise Statement, Saunders stated his first claim as follows: "The trial court violated [Saunders's] constitutional rights under the Fourth Amendment of the U.S. Constitution[,] and Article 1 sec. 8 of the Pennsylvania Constitution[,] when it failed to suppress the fruits of an unlawful vehicle search[,] which was made without [] probable cause." Concise Statement, 2/2/16, at 1.

Our review of Saunders's Motion to Suppress, which is somewhat vaguely worded, reveals that the basis for the Motion was that the police lacked probable cause to arrest Saunders, and that the subsequent search of Saunders was unlawful. See Motion to Suppress, 11/18/13, at 1-2. Nowhere in the Motion to Suppress does Saunders mention the vehicle, or assert that the search of the vehicle was unlawful or that it lacked probable cause. See id. Our further review of the notes of testimony from the suppression hearing discloses that counsel for Saunders argued that there was no probable cause to arrest Saunders because "he was arrested before any crime was committed." See N.T., 4/27/15, at 32-33; see also id. at 5 (wherein counsel for Saunders argues that "there was no probable cause to arrest [Saunders]. The arrest was unlawful."). Although counsel for Saunders argued that "the search of the vehicle is fruit of the poisonous tree[,]" see id. at 5, 33, he did not argue that there was no probable cause to support the warrant issued for the search of the vehicle. Accordingly, we are constrained to agree with the trial court's determination that the first claim raised in Saunders's Concise Statement is waived because he failed to raise the claim before the trial court. See Trial Court Opinion, 8/24/16, at 6-8; see also Pa.R.A.P. 302(a) (providing that issues not raised in the lower court are waived and cannot be raised for the first time on appeal). We therefore affirm the trial court's waiver determination regarding the first claim raised in Saunders's Concise Statement. See Trial Court Opinion, 8/24/16, at 6-8.²

2 Because we conclude that Saunders failed to preserve the first issue raised in his Concise Statement, we need not address the trial court's additional determination that the claim was waived for lack of specificity.

Saunders stated the second claim raised in his Concise Statement as follows: "[Saunders's] constitutional rights under the 14^th Amendment of the U.S. Constitution[,] and Article 1[,] sec. 9 of the Pennsylvania Constitution[,] were violated [sic] in that there was insufficient evidence to support the verdict."³ Concise Statement, 2/2/16, at 2. The trial court set forth the relevant law, and determined that the second claim raised in the Concise Statement was waived for lack of specificity because Saunders "failed to specify what element or elements of the two crimes of which he was convicted was not supported by the evidence." Trial Court Opinion, 8/24/16, at 8-9. We agree with the trial court's determination, and affirm its waiver determination regarding the second claim raised in Saunders's Concise Statement.

3 Notably, while Saunders raised a claim in his Concise Statement under the 14^th Amendment of the U.S. Constitution, and Article 1, sec. 9 of the Pennsylvania Constitution, he attempted to change his claim on appeal by invoking the 6^th and 14^th Amendments of the U.S. Constitution, and Article 1, sec. 8 of the Pennsylvania Constitution. --------

Because of our disposition of Saunders first issue on appeal, we need not address his second and third issues.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/19/2017

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