Com. v. Williams, E.

J-A17016-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
v.
ERNEST WILLIAMS,
Appellant. No. 1569 WDA 2016
Appeal from the Judgment of Sentence, July 5, 2016,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0016085-2013.
BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.
CONCURRING AND DISSENTING MEMORANDUM BY KUNSELMAN, J.:
FILED: January 31, 2019
This case is a procedural train wreck. The first suppression judge heard
testimony from the officers, but did not see the video that purported to give
them probable cause to stop Williams, because the video was inoperable.
Then, that judge refused to re-open the record to watch the video and see
whether it contradicted the officers’ testimony. Later, that judge recused
from the case.
Upon a motion to open the record presented to another judge, that
judge looked at the video, but did not have the benefit of hearing the officers’
testimony first-hand and observing their demeanor on the stand. Moreover,
counsel for Williams never got to cross-examine the officers about the video.
Instead, the new judge, bound by the coordinate jurisdiction rule, made a
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determination that he could not overrule the first judge. See
Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (noting that under
the law of the case doctrine, a court involved in later phases of litigated matter
should not reopen questions decided by another judge of that same court or
by higher court in earlier phases of the matter). From my reading of the
record and the trial court opinion in this case, it did not appear to me that the
second judge performed a de novo review of this issue. Under these facts, I
believe the first suppression judge erred and the error was not cured by the
second judge merely watching the video. I don’t believe the video, as it was
“introduced” in this case, is even properly part of the record from the
suppression hearing for this Court to view as part of its appellate review to
the suppression court’s ruling. As such, I believe Williams is entitled to a new
suppression hearing, and I dissent from the Majority decision on this issue.
I would remand this case to the court below with directions to conduct
a new suppression hearing. If, after a new hearing, the suppression judge
determines that the evidence concerned should not be suppressed, then the
judgment of sentence should stand affirmed. If, on the other hand, it
determines that the evidence concerned or a part of it should be suppressed,
then the judgment of sentence should be vacated and a new trial be granted.
Commonwealth v. Ryan, 419 A.2d 762, 763 (Pa. Super. 1980).
As for whether probable cause existed to arrest Williams without a
warrant, if the court relied only on the officer’s testimony, without the video
evidence, then probable cause existed to arrest Williams. However, the real
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issue is whether the officers’ testimony was credible. Because I believe
Williams did not get a full opportunity to question the officers’ credibility at
the suppression hearing because the video was inoperable, again, I believe a
remand for a new suppression hearing is warranted.
As for Williams’ final claim regarding the failure to dismiss a juror who
saw him in the courthouse hallway, I concur with the Majority decision on that
issue.
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