Com. v. Garcia

• Decision Date: 13 July 1995
• Citation: 661 A.2d 1388,443 Pa.Super. 414
• Parties: COMMONWEALTH of Pennsylvania v. Ruben GARCIA, Appellant.
• Court: Pennsylvania Superior Court

Page 1388

661 A.2d 1388

443 Pa.Super. 414

COMMONWEALTH of Pennsylvania v. Ruben GARCIA, Appellant.

Superior Court of Pennsylvania.

Argued April 4, 1995.

Filed July 13, 1995.

Joseph P. Burt, Erie, for appellant.

Kenneth A. Zak, Asst. Dist. Atty., Erie, for Commonwealth, appellee.

Before POPOVICH, FORD ELLIOTT and BROSKY, JJ.

BROSKY, Judge:

This is an appeal from the judgment of sentence entered following appellant's convictions for possession of cocaine, a schedule II controlled substance, ¹ and possession of this drug with the intent to deliver. ²

Appellant presents the following issues for our review: (1) whether the suppression court erred in refusing to suppress the evidence; (2) whether the trial judge erred by questioning a surrebuttal witness; (3) whether the trial judge erred in limiting defense counsel's closing argument to a period of twenty minutes; (4) whether the prosecutor's references to appellant's need for an interpreter constituted misconduct which necessitates the grant of a new trial; (5) whether the trial judge's actions relating to trial counsel's contumacious behavior deprived appellant of his right to a fair trial; and (6) whether trial counsel's contemptuous conduct constituted ineffective assistance of counsel. For the reasons set forth below, we affirm.

Before addressing appellant's claims, it is necessary to recount the pertinent facts giving rise to this appeal. During the early morning hours of November 10, 1992, Detective Steven Goodzich of the Erie Police Department received information from two confidential informants that appellant, Ruben Garcia, had cocaine in his car and on his person. ³ Detective Goodzich further learned that appellant was accompanied by Carrie Ferraro, and that they were in a bar/restaurant known as Luigi's Tavern. Detective Goodzich was also informed that appellant's white Cadillac, in which the cocaine was stored, was parked nearby. Detective Goodzich relayed this information to Officer Terry Dawley who was on duty with his canine partner, Cujo, at the time.

Officer Dawley, who was previously acquainted with both appellant and Ms. Ferraro, proceeded to Luigi's Tavern where he observed appellant's car parked across from the bar. Shortly thereafter, he saw the pair exit the tavern and enter appellant's vehicle. Appellant left the area and drove eastward; Officer Dawley followed. While driving, the officer observed appellant repeatedly looking in his rearview mirror and leaning over towards the passenger side of the car. As a result of this suspicious conduct, Officer Dawley signaled to appellant to pull his vehicle over.

Appellant complied and in response to Officer Dawley's instructions, exited the car and stood by the trunk. Officer Dawley told appellant that he was suspected to be in possession of drugs; the officer then asked appellant if he would permit the car to be searched. Appellant consented and told the officer to "go ahead." Before Officer Dawley could perform the search, however, he noticed that appellant had his hands in his pockets. Concerned for his own safety, the officer thrice asked appellant to remove his hands. Appellant simply looked at the officer, said nothing and steadfastly refused to remove his hands so that they were visible. In view of appellant's behavior, the officer believed that appellant was in possession of a weapon and removed appellant's hands from his pockets. The officer then reached into appellant's pocket and removed its contents. Although no weapons were discovered, Officer Dawley found a plastic bag containing eleven smaller plastic packets which were later confirmed to contain cocaine. Appellant was then placed under arrest.

While Officer Dawley was talking with appellant, two other Erie Police officers arrived to assist. They parked nearby and noticed Ms. Ferraro moving nervously in the front seat of appellant's car. The officers, again acting out of concern for their own safety, asked Ms. Ferraro to exit the vehicle. Ms. Ferraro complied. After a pat-down frisk disclosed that Ms. Ferraro had no weapons, the officers looked inside the car and noticed a clear plastic baggie containing a white substance, which was later determined to be cocaine, lying on the floor near the passenger seat. The officers then apprised Officer Dawley of their discovery.

At this point, Officer Dawley decided to conduct a sniff-search of the vehicle to determine whether any additional quantities of cocaine was present. Accordingly, Rudy, a trained drug-dog, was brought to the scene and exposed to the vehicle. Rudy exhibited a positive response in the hood area of the car, thus signifying that drugs were located therein. Consequently, the vehicle was impounded and towed to police headquarters. Based on the above information, Officer Dawley obtained a warrant to search the car. The search yielded an additional packet of cocaine which had been secreted in the engine compartment near the battery. ⁴ As a result, appellant was charged with various offenses arising out of this incident.

Appellant filed a motion to suppress the physical evidence seized from his person and vehicle. ⁵ The motion was denied and appellant was convicted of the above crimes following a jury trial held in June of 1993. ⁶ Appellant timely filed post-trial motions which were denied. On July 19, 1993, appellant was sentenced to a term of five (5) to ten (10) years imprisonment. ^{7 7} Appellant then timely appealed therefrom. ⁸

Appellant initially challenges the lower court's refusal to suppress the physical evidence. Before we can address this issue, we must first ascertain whether it has been sufficiently preserved for review. ⁹ "It is well-established that issues not raised in post-trial motions are not preserved for appellate review. This rule applies even where the issue was properly presented in a pre-trial motion." Commonwealth v. Metz, 534 Pa. 341, 345, 633 A.2d 125, 127 (1993). See also Pa.R.Crim.P., Rule 1123, 42 Pa.C.S.A. and comment thereto (only those issues included in written post-verdict motions are considered preserved for appellate review). However, an exception to this rule exists in certain limited circumstances where the defendant raises the issue post-trial in a procedurally defective manner and the trial court chooses to overlook the defect and address the issue on its merits. Commonwealth v. Metz, supra. The requisite limited circumstances are not present here.

Appellant did not contend that the lower court had erred in denying his suppression motion in his timely filed post-trial motions. Nor did appellant attempt to raise the issue in supplemental post-trial motions. Rather, this issue was not expressly presented to the trial court until it was raised in appellant's statement of matters complained of on appeal. Judge Bozza did not discuss appellant's procedurally defective method of presenting this issue. Opinion of Judge Bozza, filed 8/24/94, at 1-2. Nor did the trial judge appear to have directly considered its merits. He instead noted that the suppression motion had been heard and decided by Judge Connelly, and that Judge Connelly's opinion and order were attached to Judge Bozza's discussion and made a part thereof. ¹⁰ Id.

The above review demonstrates that appellant did not raise the suppression issue at any time during the post-trial motion stage of the proceedings. Nor did appellant file or request permission to file supplemental post-trial motions for the purpose of raising this claim. Although appellant included this issue in his Rule 1925(b) statement, the trial court neither addressed this procedural defect nor expressly discussed the merits of the issue. Under these circumstances, appellant's challenge to the suppression ruling must be deemed waived. ¹¹ Commonwealth v. Metz, 534 Pa. at 345-346, 633 A.2d at 127 (defendant waived issue on appeal where he did not raise it at all at the post-trial stage, not even in a procedurally defective manner, and the trial court did not explicitly choose to overlook the omission and address the issue on its merits). Compare Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988) (per curiam order), construed in Commonwealth v. Metz, supra (issue was not waived where it was presented in supplemental post-trial motions filed without leave but the trial court addressed it on its merits).

In his second allegation of error, appellant argues that the trial judge erred by questioning a surrebuttal witness regarding a possible violation of the trial court's previous "gag-order" which precluded the disclosure of any information pertaining to the confidential informants' identities and testimony. With regard to this issue, this court has observed:

A new trial is required only when the trial court's questioning is prejudicial, that is when it is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. It is always the right and sometimes the duty of the trial judge to interrogate witnesses. However, questioning from the bench should not show bias or feeling or be unduly protracted.

Commonwealth v. Ables, 404 Pa.Super. 169, 184, 590 A.2d 334, 341 (1991), allocatur denied, 528 Pa. 620, 597 A.2d 1150 (1991) (citations omitted). Accord Commonwealth v. Roldan, 524 Pa. 366, 369, 572 A.2d 1214, 1215 (1990). We will examine the trial court's conduct with these considerations in mind.

The trial transcript revealed that Detective Goodzich and Ms. Ferraro were called as rebuttal witnesses. Prior to Detective Goodzich testifying, however, the trial court closed the courtroom to the public. N.T., 6/16/93, at 160-161. The trial judge further admonished the jury, counsel, appellant and everyone else in the courtroom that the names of the informants, their testimony and their role in this case was not to be divulged. Id. at 156-157 and 189-190. To rebut the testimony proffered by Detective...