J-S40010-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERNEST E. BLAKEMORE, II : : Appellant : No. 1609 EDA 2023
Appeal from the Judgment of Sentence Entered May 10, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No: CP-23-CR-0000720-2020
BEFORE: STABILE, J., McLAUGHLIN, J., and LANE, J.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 21, 2025
Appellant, Ernest E. Blakemore, II, broke into the home of an elderly
pastor, where he stole jewelry and repeatedly struck the pastor in the head
with a crowbar. A jury convicted Appellant of aggravated assault, burglary,
and possession of an instrument of crime (“PIC”). The trial court sentenced
Appellant to an aggregate term of 21½-43 years’ imprisonment with one year
of reentry supervision under 61 Pa.C.S.A. § 6137.2. In this direct appeal, we
hold that the trial court properly denied Appellant’s motion to reopen the
record in his suppression hearing. We conclude, however, that the imposition
of reentry supervision was an unconstitutional ex post facto punishment
because Appellant’s crimes took place before Section 6137.2 took effect.
Accordingly, we vacate this term of Appellant’s sentence. We affirm the order
on review in all other respects. J-S40010-24
The record reflects that on November 12, 2019, Appellant used a
crowbar to break into a residence in Chester owned by Gilbert Hamm, a 72-
year-old pastor, and his wife. Hamm and his wife had left their home earlier
that day. Hamm returned home first and found the front door jamb broken.
As Hamm began to enter the home, Appellant struck Hamm over the head
with the crowbar. While Hamm was bleeding profusely from his head wound,
calling for his wife, and asking neighbors for help, Appellant took a backpack
filled with Mrs. Hamm’s jewelry and fled the scene. Hamm survived but
suffered multiple seizures from his injuries.
Hamm’s nephew, who lived nearby, saw Appellant fleeing the house and
called the police. He described the suspect as a black male wearing all black,
with a black baseball cap. A short time later, officers observed Appellant
approximately four blocks away from Hamm’s house. Appellant matched the
description given by Hamm’s nephew. He was also carrying a crowbar and a
backpack that appeared to be filled with objects. The police stopped
Appellant, secured the crowbar, and waited for another officer to bring over
Hamm’s nephew, who immediately identified Appellant as the perpetrator.
Hamm’s wife later identified the jewelry recovered from Appellant’s backpack
as hers.
Detective Jamison Rogers interviewed Appellant at the police station.
Before speaking to Appellant, the detective advised Appellant of his Miranda1
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1 Miranda v. Arizona, 384 U.S. 436 (1966).
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rights. Appellant then signed and initialed a form confirming that he
understood his rights and wanted to speak with the police. In his recorded
statement, Appellant confessed to committing the burglary and expressed
remorse for his crimes. He said that he had seen Hamm’s wife leave the house
and assumed it would be empty. He was going around the house, grabbing
items that he thought he could sell, when Hamm confronted him. He struck
Hamm in the head with a crowbar and fled the house.
Appellant filed a motion to suppress the evidence recovered from his
backpack that he was carrying at the time of his arrest. He argued that his
backpack was illegally searched without a warrant, evidence was illegally
seized from the backpack, and that no exigent circumstances justified a
warrantless search. Motion To Suppress, 11/18/20, at ¶¶ 2-3, 5.
On Tuesday, May 11, 2021, the court held a suppression hearing in
which two officers testified about Appellant’s stop. Detective Rogers testified
about Appellant’s confession as follows:
Commonwealth: Okay. And prior to interviewing [Appellant] did you say anything to him?
Detective Rogers: Yes. I informed him of his rights. I read him his Miranda rights in which he did indicate that he understood. I not only read them -- his rights verbally but I also presented him with a form in which it lists a total of five questions all the way up to understanding your rights and understanding the English language of what you did, initial each question and sign on the bottom indicating that he did want to speak to me. And at that point I began the recorded statement.
N.T. Suppression Hearing, 5/11/21, at 33.
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The Commonwealth also introduced a recording of Appellant’s
confession and played the portion where he confirmed he had been advised of
his Miranda rights. After the prosecutor finished questioning Detective
Rogers, defense counsel claimed that he did not know that Appellant made a
statement to the police. Counsel admitted, however, that the Commonwealth
emailed him a copy of the recording on Friday of the previous week, four days
before the hearing. Id. at 36. He claimed that he had already left his office
at that point and that he did not check his emails when he returned on
Monday, one day before the hearing. Id. at 36, 39.
Defense counsel questioned Detective Rogers about the content of the
confession and then requested to speak to the judge in chambers. When the
parties returned, Appellant pled guilty to aggravated assault and burglary in
exchange for the Commonwealth’s agreement not to seek the mandatory
minimum sentence.
On June 23, 2021, the date scheduled for sentencing, the court stated
at the beginning of the hearing, “[T]he suppression record is closed. That
motion has been heard and the suppression record is closed. There’s nothing
further on suppression, correct?” N.T., 6/23/21, at 3. Defense counsel
responded, “Correct.” Id. The court stated, “[w]e’re technically here for
sentencing.” Id. at 3-4. Minutes later, however, Appellant indicated that he
wanted to withdraw his guilty plea. Before accepting the withdrawal, the court
reminded Appellant that “we’re already done with the suppression issues.”
Id. at 7. Appellant confirmed that he understood. The court continued the
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case, reiterating that “[t]he suppression record is closed” and that the case
would be listed “strictly for trial.” Id. at 9.
On June 29, 2021, the court granted defense counsel’s motion to
withdraw his appearance. On June 30, 2021, the court entered an order
denying the motion to suppress.
On July 29, 2021, new counsel entered an appearance for Appellant. On
December 22, 2021, counsel filed a motion requesting reconsideration of the
order denying suppression. The motion alleged that prior counsel “stopped
asking questions” during the May 11, 2021 suppression hearing and “advised
[Appellant] to enter a guilty plea. The hearing was not completed but the
court entered an order denying the [suppression] motion.” Motion For
Reconsideration, 12/22/21, at ¶ 2. The motion continued that Appellant
withdrew his guilty plea and now “wishes to litigate and complete” the motion
to suppress. Id. at ¶ 4.
The court held a status hearing on the same date that the motion for
reconsideration was filed. During the hearing, counsel asked the court to
reopen the record for the motion to suppress because the suppression
proceeding “was never finished.” N.T., 12/22/21, at 4. The trial court
responded:
Well, let me stop you there . . . It was finished. I looked at this record. There were three witnesses called. All three were extensively examined during the suppression. And there was nothing further that [prior counsel] -- and after a conversation with [Appellant] wanted to pursue on suppression. I’ll look at your motion. But if you look at the notes you’ll see that again this was
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extensively on May 11 an extensive suppression motion. This Court’s not inclined to give two suppression motions for the same issues.
Id. at 4-5.
In an order docketed on December 31, 2021, the court denied the
motion for reconsideration as untimely.
On January 10, 2022, Appellant filed a motion to reopen the record.
Appellant argued this relief was warranted because: (1) the Commonwealth
did not present evidence regarding the search of Appellant’s backpack during
the May 11, 2021 suppression hearing; and (2) there was “no opportunity for
a hearing” on Appellant’s confession. Motion to Reopen the Record, 1/10/23,
at ¶¶ 11, 15. The court denied this motion.
The trial took place in early March 2023, and a jury found Appellant
guilty of aggravated assault, burglary and PIC. On May 10, 2023, the court
sentenced Appellant as outlined above. Appellant filed a timely post-sentence
motion challenging the weight of the evidence, which was denied, and a timely
appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
I) Whether the lower court erred by denying [Appellant’s] requests to reconsider and reopen the suppression record so he could finish litigating his motion to suppress physical evidence and raise a challenge to the admissibility of his alleged statements, where the initial hearing was interrupted due to a subsequently withdrawn guilty plea when previous defense counsel first learned about a recorded interrogation[.]
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II) Whether the court below illegally imposed one year of reentry supervision since [Appellant’s] alleged conduct occurred before the effective date of 61 Pa.C.S.[A.] § 6137.2[.]
Appellant’s Brief at 6.
Appellant first argues that the trial court abused its discretion by
denying his motions to reconsider the order denying suppression and his
motion to reopen the suppression record. He claims that “[t]he lower court
lacked a complete record upon which to decide the search and seizure’s
legality, and [Appellant] never even had an opportunity to challenge his
[confession].” Appellant’s Brief at 15. We review the court’s decision for
abuse of discretion. Commonwealth v. Micklos, 672 A.2d 796, 802-03 (Pa.
Super. 1996). For multiple reasons, we hold that the court properly exercised
its discretion.
First, Appellant and his attorney agreed on the record that the
suppression record was closed and that there would be no further proceedings
relating to suppression.
It is well-settled that parties are bound by agreements that they make
during court proceedings. See Commonwealth v. Hemingway, 13 A.3d
491, 500 (Pa. Super. 2011) (when Commonwealth, in its official duties,
participates in a pretrial conference and agrees to provide grand jury
transcripts to defendant, “it is bound by the agreements reached therein, just
as the defendant is bound”); Commonwealth v. Ortiz, 854 A.2d 1280, 1284
(Pa. Super. 2004) (Commonwealth is bound by restitution agreement reached
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with defendant); Commonwealth v. Impellizzeri, 661 A.2d 422, 432 (Pa.
Super. 1995) (but for defendant “opening the door,” Commonwealth is bound
by pretrial agreement to exclude evidence); Commonwealth v. McSorley,
485 A.2d 15, 19 (Pa. Super. 1984) (terms of diversion agreement binding on
the Commonwealth).
In this case, during a hearing on Appellant’s motion to suppress,
Appellant decided to plead guilty after the Commonwealth presented
compelling evidence of his guilt, including a Mirandized confession that he
gave shortly after his arrest. Several weeks later, however, on the scheduled
date of sentencing, the court permitted Appellant to withdraw his guilty plea.
According to Appellant, the court’s decision was functionally equivalent to the
grant of a new trial, i.e., the decision “wiped the slate clean” and allowed
Appellant to renew suppression litigation and raise any and all suppression
issues that he wanted to raise. See Appellant’s Brief at 14 (citing
Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa. 2002)). We disagree.
When the court permitted Appellant to withdraw his plea, it emphasized
repeatedly that the suppression record was closed and that the case would be
listed strictly for trial. As the Commonwealth correctly observes, the court
“repeatedly and unequivocally warned [Appellant] that withdrawing his guilty
plea would not wipe the slate clean.” Commonwealth’s Brief at 13. In
addition, defense counsel and Appellant expressly agreed on the record that
the suppression record was closed. Appellant was bound by this agreement,
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see Hemingway, Ortiz, Impellizzeri, supra, precluding him from
requesting additional suppression hearings after his plea was withdrawn.
Appellant’s reliance on Commonwealth v. Ryan, 442 A.2d 739 (Pa.
Super. 1982), is misplaced. There, this Court found that the trial court abused
its discretion in not permitting the Commonwealth to reopen the suppression
record because it was not clear that the record had been closed. Id. at 745.
“In fact, a review of the suppression proceedings below indicate[d] that all
parties believed the suppression hearing to be in abeyance pending resolution
of [an issue relating to the] burden of proof[.]” Id. The Commonwealth had
made it clear “on several occasions before the suppression order” that it had
testimony it intended to present. Id. In contrast, in the present case, the
court repeatedly advised the parties that the suppression record was closed,
and both Appellant and defense counsel agreed to this point on the record.
Denial of Appellant’s motion to reopen the record was proper for a
second, independent reason: Appellant’s inability to satisfy the requisites of
Pa.R.Crim.P. 581, the rule governing suppression proceedings. Rule 581(B)
requires the defendant to include motions to suppress evidence within an
omnibus pretrial motion. The omnibus motion “shall state specifically and with
particularity the evidence sought to be suppressed, the grounds for
suppression, and the facts and events in support thereof.” Pa.R.Crim.P.
581(D).
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Rule 581 “is designed to provide one single procedure for the
suppression of evidence[.]” Comment, Pa.R.Crim.P. 581. A defendant cannot
file supplemental motions to suppress “unless the opportunity did not
previously exist, or the interests of justice otherwise require.” 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.”
Micklos, 672 A.2d at 802-03. “If the court determines that the evidence shall
not be suppressed, such determination shall be final, conclusive, and binding
at trial, except upon a showing of evidence which was theretofore
unavailable[.]” Pa.R.Crim.P. 581(J). Thus, a defendant is “not entitled to a
second suppression hearing on the same issue” before trial unless he identifies
some “previously unavailable evidence” that he needs to present.
Commonwealth v. Sample, 468 A.2d 799, 802 (Pa. Super. 1983).
In Commonwealth v. Johonoson, 844 A.2d 556 (Pa. Super. 2004),
disapproved on other grounds by Commonwealth v. Livingstone, 174 A.3d
609 (Pa. 2017), the defendant’s suppression motion challenged only the
voluntariness of his statement to the police. After the trial court denied this
motion, the defendant filed a supplemental motion to suppress in which he
argued for the first time that the police lacked reasonable suspicion to detain
him. The trial court denied this supplemental motion as untimely. This Court
upheld the trial court, reasoning that the defendant “could have easily” raised
this claim “during the initial suppression hearing[.]” Id. at 561. The defendant
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already “knew the facts and circumstances surrounding the stop” because a
trooper had described the stop at the suppression hearing. Id.
Here, as in Johonoson, Appellant fails to present any valid reason in
his brief for reopening the record. Although he claims that the trial court
“lacked a complete record upon which to decide the search and seizure’s
legality,” Appellant’s Brief at 15, his brief fails to specify what he would have
added to the record. This is because there was nothing to add; Appellant’s
own counsel confirmed on the day Appellant withdrew his plea that there was
“nothing further on suppression.” N.T., Sentencing Hearing, 6/23/21, at 3.
The record establishes that counsel was correct. The Commonwealth
presented the testimony of two police officers concerning Appellant’s arrest.
The first witness, Officer Abreu, testified that he had received a radio call
about the burglary shortly before he saw Appellant within four blocks of the
crime scene. N.T., Suppression Hearing, 5/11/21, at 8. The radio call
described the suspect as a “black male wearing all black with a black baseball
cap.” Id. Appellant matched this description, because he was wearing “all
black” clothing as well as “a black baseball cap.” Id. at 9. Appellant also was
carrying a crowbar and a backpack “extremely stuffed with objects,” id. at 9-
10, items that were consistent with a burglary. Accordingly, Officer Abreu and
his partner stopped Appellant, secured the crowbar, and waited for another
officer to bring over an eyewitness. Id. at 11-12.
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When the eyewitness identified Appellant as the man who fled the
victim’s house, the police arrested Appellant and searched his backpack
incident to arrest.2 Id. at 12. The second witness, Officer Ticknor, testified
that he visited the crime scene and spoke with a neighbor 3 who had observed
an individual leaving the victim’s premises. Id. at 19. Officer Ticknor heard
over the radio that another officer had stopped someone matching the
description of the burglar. Id. Officer Ticknor drove the neighbor by the
scene of the stop, and he identified Appellant as the person he had seen
fleeing the house. Id. at 19, 21. Defense counsel thoroughly cross-examined
Officers Abreu and Ticknor. Id. at 13-16, 22-26. Given this evidence,
Appellant cannot credibly contend that he needed to reopen the record for
presentation of further evidence concerning the legality of the search and
seizure.
Appellant also argues that reopening the record is necessary to allow
him to contest the legality of his confession. Appellant’s brief suggests that
his confession only came to light in the middle of the suppression hearing and
2 In the trial court, Appellant complained in his motion to reopen the record
that the Commonwealth’s witnesses had not specified who searched his backpack, “where it was done and what items were recovered.” Motion to Reopen the Record, at ¶13. This argument is absent from Appellant’s brief in this Court. Even if Appellant had raised this argument on appeal, we cannot see how it would have affected the outcome in view of the other compelling evidence of probable cause to stop Appellant and search his belongings for evidence of crime.
3 The neighbor was later identified during trial as Hamm’s nephew.
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thus deprived Appellant and his attorney of an adequate opportunity to
prepare a challenge to the confession. See Appellant’s Brief at 14 (“The initial
suppression hearing was interrupted by [Appellant’s] open guilty plea . . .
[Appellant] entered the plea when prior counsel became aware of a
‘devastating’ recorded ‘confession’ omitted from the complaint and earlier
discovery”).
This is simply not the case. While defense counsel claimed during the
suppression hearing that he “didn’t know that [Appellant] made a statement”
to the police, N.T., Suppression Hearing, 5/11/21, at 36, he admitted that the
Commonwealth sent him a recording of the confession four days before the
hearing. Id. Contrary to the suggestion in Appellant’s brief, this was not a
case in which the Commonwealth ambushed Appellant with a confession
during the suppression hearing. While the better practice would have been to
send the confession to defense counsel further in advance of the suppression
hearing, the disclosure of the confession four days before the hearing gave
defense counsel adequate opportunity to prepare any defense or objection to
the confession. Moreover, Appellant’s brief fails to argue, let alone
demonstrate, that he has new evidence concerning the legality of the
confession that was unavailable at the time of the suppression hearing.
Rule 581 provides that the defendant cannot file supplemental motions
to suppress “unless the opportunity did not previously exist, or the interests
of justice otherwise require,” and cannot obtain a second suppression hearing
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on the same issue unless he identifies some “previously unavailable evidence”
that he needs to present. Pa.R.Crim.P. 581(B, J). Because Appellant fails to
meet these requirements, the court properly denied his motion for
reconsideration and his motion to reopen the record.
In his next argument, Appellant maintains that the trial court erred by
sentencing Appellant to one year of reentry supervision pursuant to 61
Pa.C.S.A. § 6137.2, because this statute was not in effect at the time of his
crimes. The Commonwealth agrees, and we do as well, that the reentry
portion of Appellant’s sentence is illegal under the Ex Post Facto Clause of
Article I, Section 17 of the Pennsylvania Constitution.
Section 6137.2 provides that if an individual is committed to the
Department of Corrections4 with an aggregate minimum term of imprisonment
of four or more years, Section 6137.2 requires the trial judge to include a
consecutive one-year term of reentry supervision. 61 Pa.C.S.A. § 6137.2(a,
b). Section 6137.2(f) provides that this statute only applies to defendants
sentenced after its effective date, December 18, 2019. After Section 6137.2
took effect, however, this Court narrowed the statute’s reach in
Commonwealth v. Carey, 249 A.3d 1217 (Pa. Super. 2021). There, the
defendant was sentenced in 2020, after Section 6137.2 took effect, so the
4 Section 6137.2 refers to an individual being committed to the “department.”
Another statute in Title 61, however, defines “department” as “the Department of Corrections of the Commonwealth.” 61 Pa.C.S.A. § 102.
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trial judge ordered one year of reentry supervision. This Court found his
sentence unconstitutional under the Ex Post Facto Clause, because the
defendant committed his crimes in February 2019, before Section 6137.2 took
effect. Id., at 1229. We vacated this portion of the sentence, id., noting that
remand for resentencing was not required because our ruling did not disturb
the trial court’s sentencing scheme. Id. at 1229 n.10.
This case involves the same situation as Carey, because Appellant’s
crimes took place on November 12, 2019, before Section 6137.2 took effect.
Therefore, as applied to Appellant, the imposition of a one-year term of
reentry supervision “constitutes an unconstitutional ex post facto
punishment.” Id., at 1229. Accordingly, we vacate the provision of
Appellant’s sentence imposing a one-year period of reentry supervision.
Otherwise, Appellant’s judgment of sentence remains intact. We do not
remand for resentencing because our decision does not disturb the trial court’s
sentencing scheme. Id. at 1229 n.10.
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Date: 2/21/2025
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