Commonwealth v. Nesbit

COMMONWEALTH OF PENNSYLVANIA Appellant v. JONATHAN NESBIT

COMMONWEALTH OF PENNSYLVANIA Appellant v. JONATHAN NESBIT

Nos. 170 EDA 2021, 171 EDA 2021

Superior Court of Pennsylvania

August 24, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered November 25, 2020 In the Court of Common Pleas of Monroe County Criminal Division at No(s) CP-45-CR-0002557-2019, CP-45-CR-0000910-2019

Joseph D. Seletyn, Esq.

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E ^[*]

MEMORANDUM

STEVENS, P.J.E.

The Commonwealth brings this interlocutory appeal^[1] from the order entered in the Court of Common Pleas of Monroe County denying its motion to dismiss Defendant/Appellee Jonathan Nesbit's Omnibus Pretrial Motion as untimely filed, granting Nesbit's motion to extend the time for filing his Omnibus Pretrial Motion nunc pro tunc, and granting Nesbit's motion to suppress statements he made during his custodial interrogation as the involuntary product of Miranda^[2] violations.

Herein, the Commonwealth contends that the court's order accepting Nesbit's untimely motion for merits review contravened our Rules of Criminal Procedure and interpretive decisional law, as Nesbit demonstrated neither cause for the significantly late filing of his Omnibus Motion nor that justice required the court to accept the untimely motion. After careful review, we reverse and remand.

The present case arises from the Pocono Mountain Regional Police Department's investigation into the April 2, 2019 overdose-related death of 26 year-old Jaidee Ortiz. Police learned through witness statements and examination of Ortiz's text messages that one Ronald Aherns had delivered heroin to Ortiz earlier that day.

Using Ortiz's phone, Corporal Lucas Bray posed as Ortiz and arranged another heroin purchase with Aherns. When Aherns arrived, police arrested him. Aherns subsequently provided a statement to police implicating the 27 year-old Nesbit as his supplier.

Now posing as Aherns while using Aherns' cell phone, Corporal Bray arranged with Nesbit to purchase four heroin bags of approximately one gram from him, with delivery to be made at Aherns' home. When Nesbit arrived as arranged, he was arrested with four bags of heroin, which later tested positive for fentanyl, in his possession.

Corporal Bray and Corporal Matthew Nero brought Nesbit to an interview room at the Pocono Mountain Regional Police Department, where Nesbit eventually provided an uncounseled statement of his involvement with the delivery of heroin/fentanyl to both Ahrens (who delivered to Ortiz) and Corporal Bray (posing as Ahrens).

On April 4, 2019, a criminal complaint was filed against Nesbit at 910 CR 2019. In that docket, Nesbit was charged with Possession with Intent to Deliver, to wit: heroin and/or fentanyl, 35 Pa.C.S. § 780-113(a)(30), ("PWID"); Criminal Use of Communication Facility, 18 Pa.C.S.A. §7512(a); Intentional Possession of Controlled Substance by Person not Registered, 35 Pa.C.S. § 780-113(a)(16); and Possession of Drug Paraphernalia, 35 Pa.C.S. § 780-113(a)(32. These charges stem from a drug transaction occurring on April 3, 2019, in Tunkhannock Township, Monroe County, Pennsylvania.

On June 13, 2019, a criminal complaint was filed against Nesbit at 2557 CR 2019. In that docket number, Nesbit was charged with Drug Delivery Resulting in Death, 18 Pa.C.S.A. § 2506(a), Manufacture, Deliver or Possession with Intent to Deliver, to wit: heroin, 35 Pa.C.S. § 780-113(a)(30); Criminal Conspiracy - Engaging in Manufacture, Delivery or Possession with Intent to Deliver, 18 Pa.C.S.A. § 903(a)(1); Criminal Use of Communication Facility, 18 Pa.C.S.A § 7512(a); and Intentional Possession of Controlled Substance by Person not Registered, 35 Pa.C.S.A § 780-113(a)(16). These charges stem from an alleged drug delivery which resulted in the death of Jai Dee Ortiz on April 2, 2019. The delay in filing of these charges resulted from the need to obtain forensic toxicology reports necessary for the charge of Drug Delivery Resulting in Death.

From April through November of 2019, six different counsel entered their appearances and represented Nesbit in both cases.^[3] The sixth counsel was appointed conflict counsel and represented Nesbit during the November 26, 2019 proceeding at which joinder of the two cases against him occurred and at Nesbit's November 27, 2019 arraignment.

On February 4, 2020, 69 days after Nesbit's arraignment, the same counsel filed an Omnibus Pretrial Motion seeking suppression of Nesbit's statements provided during his custodial interrogation. On March 11, 2020, the Commonwealth filed a Motion to Dismiss the Omnibus Motion as untimely under the Rules of Criminal Procedure which require such motions to be filed no later than 30 days after arraignment. See Rule 579(A), infra.

On May 1, 2020, Nesbit retained private counsel, who, on June 8, 2020, filed, inter alia, a Motion Nunc Pro Tunc requesting an extension of time for the late filing of the Omnibus Motion. After conducting a June 9, 2020 hearing on the motion, the court entered its November 25, 2020 Opinion and Order granting Nesbit's requested relief, in part, ^[4] and suppressing Nesbit's statements made during his custodial interrogation. Pursuant to Pa.R.A.P. 311(D), the Commonwealth filed a timely appeal of the court's Order, certifying that the court's decision terminated and/or substantially handicapped the prosecution of Nesbit in both cases.

The Commonwealth presents for this Court's consideration the following issues:

1. Whether the lower court abused its discretion in denying the Commonwealth's Motion to Dismiss [Nesbit's] Omnibus Motion and thereby granting [Nesbit's] Motion to Extend Time for filing Omnibus Nunc Pro Tunc for cause shown, when [Nesbit's]

Omnibus Motion was beyond the omnibus deadline in Pa.R.Crim.P. 579 and 581 and [Nesbit] failed to demonstrate cause for said late filing?

2. Whether the lower court erred in granting Nesbit's Motion to Suppress on the basis that Nesbit unequivocally invoked his right to counsel and any continued questioning violated his constitutional rights?

Commonwealth's Brief, at 8.

When the Commonwealth appeals from the grant of a suppression order, we adhere to the following standard of review:

[We] consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts.

Commonwealth v. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016) (citation omitted). We review the suppression court's legal conclusions de novo. Id. "[A]ppellate courts are limited to reviewing only the evidence presented at the suppression hearing when examining a ruling on a pre-trial motion to suppress." Commonwealth v. Harlan, 208 A.3d 497, 499 (Pa. Super. 2019) (citation omitted).

Raised first is the issue asking whether the trial court properly applied Pa.R.Crim.P. 579 and 581^[5] in accepting Nesbit's untimely suppression motion for "cause shown" or 'in the interests of justice." Specifically, the trial court determined the exceptions to Rule 579's 30-day time-bar applied because five pretrial counsel had sought and were granted withdrawal for reasons of conflict during the seven months leading up to the joinder of Nesbit's two docketed cases on November 26, 2019 and his arraignment on the second case on November 27, 2019, when Nesbit was newly represented by his sixth counsel.

The Commonwealth maintains the court misconstrued the procedural rules to find that cause was shown or the interests of justice were implicated in the present case simply because multiple attorneys represented Nesbit during the period leading up to his November 27, 2019 arraignment. It emphasizes there were lengthy periods where one counsel represented Nesbit, the most important of these taking place from the November 27, 2019 arraignment through May 1, 2020, during which sixth counsel had the opportunity to file a timely Omnibus Motion, or a motion seeking an extension of time to do, by December 27, 2019, but he never did. In this respect, the Commonwealth observes that the court gave no other reason for its decision to excuse Nesbit's significantly late filing other than the number of counsel changes that had preceded the filing of his Omnibus Motion.

A review of the trial court's Opinion of November 25, 2020, denying the Commonwealth's Motion to Dismiss Nesbit's untimely Omnibus Motion shows that it relied expressly on the frequent changes in representation to forgive Nesbit's untimely Omnibus Motion:

The Commonwealth has asked this [trial court] to dismiss Nesbit's Motion as being untimely. Pa.R.Crim.P. 579(A) states that the "omnibus pretrial motion for relief shall be filed and served within 30 days after arraignment unless . . . the defendant or defense attorney, or the attorney for the Commonwealth, was not aware of the grounds for the motion, or . . . the time for filing has been extended by the court for cause shown."

The Commonwealth argues that Nesbit has waived his suppression issue and his request to sever the cases for trial because of his untimely Motion^[fn] In response to the Commonwealth's Motion to Dismiss, Nesbit argues that there have been six (6) attorneys representing him over a fifteen (15) month period.^[fn] Several of the other appointed attorneys have been relieved of representing Nesbit due to various conflicts.

[fn] Nesbit's Formal Arraignment was

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