Com. v. Camacho

• Decision Date: 01 June 1993
• Citation: 425 Pa.Super. 567,625 A.2d 1242
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Oscar CAMACHO, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Hector CAMACHO, Appellee.
• Court: Pennsylvania Superior Court

Page 1242

625 A.2d 1242

425 Pa.Super. 567

COMMONWEALTH of Pennsylvania, Appellant, v. Oscar CAMACHO, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Hector CAMACHO, Appellee.

Superior Court of Pennsylvania.

Argued March 11, 1993.

Filed June 1, 1993.

Peter J. Gardner, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Andrew G. Gay, Philadelphia, for Oscar Camacho, appellee.

Before CAVANAUGH, JOHNSON and HOFFMAN, JJ.

CAVANAUGH, Judge.

This is an appeal from an order of the Court of Common Pleas of Philadelphia County which suppressed all the physical evidence seized by police at or near 2853 North Fourth Street in Philadelphia. The Commonwealth raises two issues on appeal: (1) the lower court erred in failing to find exigent circumstances for the police to search an automobile used for storing drugs at the 2800 block of North 4th Street and (2) the police lawfully entered 2853 North 4th Street. Our review indicates that the Commonwealth's first argument has merit, as the lower court has failed to apply the import of recent cases interpreting the automobile exception to the warrant requirement. However, we can not rule for the Commonwealth on the second issue, as the lower court as finder of fact and determiner of credibility found the search of the house illegal. We affirm in part, reverse in part.

This is a consolidated Commonwealth appeal from an order of the Hon. Anne Lazarus granting the motion to suppress of appellees Hector Camacho and Oscar Camacho. Both appellees were arrested for possession of controlled substances, possession with intent to deliver controlled substances, and criminal conspiracy. As the suppression court made certain findings of fact and credibility determinations which have pertinence to our analysis, we will discuss the relevant testimony proffered at the suppression hearing.

At the suppression hearing, Officer Thomas Clarke of the East Police Task Force testified that he had set up surveillance of the 2800 block of North 4th Street, Philadelphia, PA at approximately 6:30 p.m., on September 18, 1991. Apparently, Officer Clarke acted as the sole observer and was assisted by back-up units in the area. He testified that his observations were made from a nearby second floor, which he could not identify because of its confidential nature. His surveillance location, he testified, was no less than fifty and no more then seventy feet from the relevant action in this appeal.

During the course of his surveillance, Officer Clarke testified he saw several unidentified white and black males approach Hector Camacho, who was standing in the middle of the street in front of 2859 North 4th Street. Officer Clarke stated that each time a male would approach, Hector Camacho would walk over to a silver Toyota parked in front of 2859 or 2861 North 4th Street, reach into the passenger door, and retrieve an "object." Hector Camacho would then exchange the object with male for something that looked like currency. On cross-examination, Officer Clarke conceded that he was not sure that money was actually transferred or that the "objects" were drugs. However, he did testify that given his many years of experience, he was virtually positive that Hector Camacho was selling drugs.

After several of these transactions, Officer Clarke testified that he notified his backup. Before his backup arrived, Hector Camacho walked to 2853 North 4th Street. As soon as he got there, a door opened and a Hispanic male, later identified as Oscar Camacho, came out and stood on the top step. Hector Camacho handed something to Oscar Camacho from his right hand pocket. He then proceeded to walk back towards the silver Toyota, where he began to pace back and forth.

The back up unit that arrived shortly thereafter consisted of Sergeant Brian Gessner and Officer James Henninger. Both officers arrested Hector Camacho, and then Sergeant Gessner proceeded to 2853 North 4th Street. Sergeant Gessner claimed that the front gate at that residence was open, as was the doors to the house. Oscar Camacho, he testified, was right inside the doorway, and he turned back into the house and fled at Gessner's approach. Sergeant Gessner then stated he chased Oscar Camacho through the living room and kitchen into an adjoining shed at the back of the house. After capturing Oscar Camacho, Sergeant Gessner testified that he saw in plain view on the floor of the shed a clear, plastic bag of cocaine and two bundles of heroin. Thereafter, after a Spanish interpreter was sent for, the appellees' mother, Luz Camacho, signed a written consent to search the house. During this search, the police seized extensive drug paraphernalia.

The appellees presented testimony that the arrest of Oscar Camacho did not occur in the shed as the police claimed. Oscar Camacho claimed to be sleeping in the third floor room of his mother's house when a police officer entered the room. According to this defendant, the officer took him into the living room, pushed him against the wall and held him there. Luz Camacho also gave testimony that could be construed to contradict the police version. She testified that she was sleeping on the sofa of her living room. She awakened to find someone struggling with her son. She jumped to her son's aid, but after fully waking, determined that it was the police.

After the conclusion of the parties' presentation at the suppression hearing, the lower court made several determinations. First, the court rendered the specific finding that "there was probable cause to arrest Hector Camacho based upon the articulable facts that the police officer had in his possession at that time." The court, however, ruled that the evidence found in the Toyota must be suppressed because:

there were no exigent circumstances present that would justify the search of a closed car and the search warrant would easily have been obtainable and the police could have safe-guarded that car and, therefore, the evidence obtained from the car was not incident to the arrest of Hector. It was not in his control or within ten feet of Mr. Camacho and, therefore, the evidence taken from the car, is in fact suppressed.

The court went on to suppress the drugs allegedly found in the shed after the arrest of Oscar Camacho, commenting that there may not have been probable cause to arrest him. However, it did not suppress other evidence of drug-related activity found in the house because the court was convinced that the Camachos' mother voluntarily gave her consent to search the house.

The suppression court made the following findings of fact in its October 19, 1992 opinion:

1. The majority of Officer Clarke's testimony was incredible;

2. Officer Clarke summoned back-up officers who arrested the defendant;

3. None of the participants in the alleged exchanges with Hector Camacho have been identified;

4. Police searched a silver Toyota which was parked on the street and a shed on the Camacho property;

5. Search warrants were not requested for either of the searches;

6. Hector Camacho was detained by the police prior to the search of the Toyota;

7. Oscar Camacho was arrested inside his mother's living room;

8. Police testimony describing the apprehension of Oscar Camacho was not credible.

9. Officers obtained a consent to search the house from Mrs. Camacho after the arrest of her sons;

10. Sergeant Gessner retrieved drugs from the shed behind the Camacho residence prior to obtaining Mrs. Camacho's consent to search the house.

After making these findings, the court made the following conclusions of law. First, in reference to the search of the Toyota, the court stated the search did not fall into any exception to the warrant requirement and was thus illegal. Second, in reference to the search of the house and shed, the court asserted that since it found that police testimony as to the apprehension of Oscar Camacho was unreliable, the evidence seized in the house and shed must be suppressed. In direct contrast to its ruling at the suppression hearing, the court suppressed evidence found pursuant to Mrs. Camacho's consent to search her house. Accordingly, pursuant to its rulings, it suppressed all the evidence attained on September 18, 1991. This appeal followed.

We begin with our standard of review The well established judicial principle is that in reviewing a suppression court's ruling the appellate court is bound by factual findings supported by the record. [A]nd, [it] may not substitute [its] own findings for those of the suppression court. This principle of deference to trial courts has one important caveat however, appellate courts are not bound by findings wholly lacking in evidence.

* * * * * *

[W]here the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court must consider only the evidence of the defendant's witnesses and so much of the evidence of the prosecution as read in context of the record as a whole remains uncontradicted.

Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137, 138-139 (1983), as quoted in Commonwealth v. Lagamba, 418 Pa.Super. 1, 3, 613 A.2d 1, 2 (1992).

Preliminarily, we note that the court made credibility determinations in the case sub judice. We have held in circumstances other than a suppression hearing as follows:

A reviewing court is bound by the lower court's determination of issues of credibility, unless said determination is a manifest error. Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa.Super. 418, 307 A.2d 449 (1973). Issues of credibility are resolved through personal observation; therefore, absent clear and manifest error, a lower court's assessment of witnesses' integrity is not properly reversible on appeal. Shawcreaw v. Shawcreaw, 248 Pa.Super. 223, 375 A.2d 68 (1977); Re Estate of Duncan, 426 Pa. 283, 232 A.2d 717 (1967).

Commonwealth v. Smith, 322 Pa.Super. 504, 511, 469 A.2d 1104, 1109 (1983); accord Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (19...