Com. v. Bolden, L.

• Court: Superior Court of Pennsylvania
• Decided: September 9, 2016
• Docket: 157 EDA 2011
• Status: Unpublished

Opinion

J-S64043-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LAMONT BOLDEN

Appellant No. 157 EDA 2011

Appeal from the Judgment of Sentence December 20, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0012129-2010

BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 09, 2016

Appellant Lamont Bolden appeals from the judgment of sentence

entered by the Court of Common Pleas of Philadelphia County after the trial

court convicted Appellant of possession of a small amount of marijuana.1

For the following reasons, we affirm.

On March 6, 2009, Appellant was arrested and charged with

possession of a controlled substance2 and possession of a small amount of

marijuana. His case was listed for trial in Philadelphia’s Municipal Court.

Appellant filed a suppression motion in the Municipal Court on September

27, 2010. After a hearing, the Honorable Joseph O’Neill of the Municipal

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1 35 P.S. § 780-113(a)(31). 2 35 P.S. § 780-113(a)(16).

*Former Justice specially assigned to the Superior Court. J-S64043-16

Court denied the motion to suppress. The same day, Judge O’Neill held a

stipulated bench trial, convicted Appellant of both charges, and imposed an

aggregate sentence of sixty days incarceration.

Appellant appealed and chose to request a trial de novo in the Court of

Common Pleas. The Commonwealth withdrew the charge of possessing a

controlled substance. On December 20, 2010, Judge Robert P. Coleman

held a bench trial at which Appellant again stipulated to the record made at

the Municipal Court suppression hearing. Judge Coleman convicted

Appellant of possession of a small amount of marijuana and sentenced

Appellant to thirty days probation and fifty hours of community service. This

timely appeal followed.

The sole issue Appellant raises on appeal is whether the lower court

erred in denying his suppression motion. The Commonwealth argues that

Appellant waived this claim on appeal as he failed to raise it before the Court

of Common Pleas after his trial de novo.

Upon a conviction in the Philadelphia Municipal Court, an appellant has

two options to proceed on appeal: a defendant may 1) request a trial de

novo or 2) file a petition for a writ of certiorari with the Court of Common

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

2011) (citing Pa.R.Crim.P. 1006) (some 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.

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

Commonwealth v. Menezes, 871 A.2d 204, 207 n. 2 (Pa.Super. 2005)).

In Beaufort, this Court found that the defendant waived his desired claim

for purposes of appellate review as he first raised the issue in a pre-trial

motion in the Municipal Court but failed to raise it again before the Court of

Common Pleas in his trial de novo. We held that when a defendant is

afforded a trial de novo, any matter pertaining to the proceedings before the

magistrate are rendered irrelevant. Beaufort, 112 A.3d at 1269 (citing

Commonwealth v. Appel, 652 A.2d 341, 343 (Pa.Super. 1994)).

In the same manner, Appellant filed a suppression motion before the

Municipal Court, which was denied. After electing to proceed to a trial de

novo in the Court of Common Pleas, Appellant failed to raise his suppression

challenge before the trial court. Appellant’s failure to preserve the issue

below results in waiver of the claim. See Pa.R.A.P. 302(a) (“Issues not

raised in the lower court are waived and cannot be raised for the first time

on appeal”).

For the foregoing reason, we affirm.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/9/2016

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