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11/06/97 COMMONWEALTH PENNSYLVANIA v. MATHEW

November 6, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
MATHEW DOUGLASS, APPELLANT



Appeal from the Judgment of Sentence entered July 8, 1996 in the Court of Common Pleas of Philadelphia County, Criminal, at No. 95-12-0552. Before McINERNEY, J.

Before: Cavanaugh, Eakin, and Montemuro,* JJ.

The opinion of the court was delivered by: Eakin

OPINION BY EAKIN, J.:

Filed November 6, 1997

Mathew Douglass appeals from the judgment of sentence entered May 9, 1996 in the Court of Common Pleas of Philadelphia County (McInerney, P., presiding) following his convictions for theft, receiving stolen property, and the summary offense of criminal mischief. We affirm.

At approximately 9:45 p.m. on August 9, 1995, Wayne Johnson heard glass breaking and saw appellant leaning through the window of a parked car. Mr. Johnson called to the man that he was going to call the police and that appellant better get out of there. Appellant pulled his head out of the car, looked at Mr. Johnson and leaned back into the car; aside from Mr. Johnson and his friend, appellant was the only person on the block. Mr. Johnson notified police of the break-in and flagged down a passing police car. He told SEPTA Police Officer Charles Lawson he had just seen a black man wearing a white T-shirt and shorts breaking into a car in the 400 block of North Water Street, and if the officer acted quickly, he could probably catch the thief.

Officer Lawson drove immediately to the location and saw a Nissan matching Mr. Johnson's description with a broken window. He also saw appellant, the only other person on the street, about 30 yards from the car. Appellant was carrying a backpack that was open and contained in plain view a tape cassette case. Appellant acknowledged he was carrying cassette tapes. Officer Lawson asked appellant to accompany him back to the Nissan where they awaited the arrival of Mr. Johnson.

In the meantime, Mr. Johnson had viewed two other individuals, but neither was the perpetrator. Upon seeing appellant's face and clothing, Mr. Johnson positively identified appellant as the thief. About ten minutes had passed since Mr. Johnson first saw appellant. The owner of the Nissan returned to her car and identified the tapes and cassette case in appellant's backpack as hers.

On November 24, 1995, appellant's motion to suppress physical evidence was denied. After his conviction in the Philadelphia Municipal Court, he appealed and sought a trial de novo in the Court of Common Pleas. Following a bench trial, appellant was convicted again on all charges. On July 8, 1996, the trial court denied appellant's Motion for Extraordinary Relief and sentenced him to six to twelve months imprisonment. This timely appeal followed.

Appellant claims the identification evidence should be suppressed because the procedure by which he was identified was impermissibly suggestive and the fruit of an illegal arrest, and the physical evidence was seized without probable cause.

Our review of a trial court's refusal to suppress evidence is limited to determining whether the factual findings of the suppression court are supported by the record. Commonwealth v. Marinelli, Pa. , 690 A.2d 203, 214 (1997). Thus, if sufficient evidence is of record to support the suppression court's ruling and that court has not misapplied the law, we will not substitute our credibility determination for that of the suppression court Judge. Id. When reviewing the trial court's ruling on a motion to suppress, we may consider the evidence presented both at the suppression hearing and at trial. In Interest of D.W., 427 Pa. Super. 629, 635 n.2, 629 A.2d 1387, 1389 n.2 (1993) (quoting Commonwealth v. Chacko, 500 Pa. 571, 459 A.2d 311 (1983)).

Appellant's first issue is waived because he failed to move to suppress Mr. Johnson's identification of him:

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 306. If timely motion is not made hereunder, ...


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