Com. v. Rosario-Hernandez, ROSARIO-HERNANDE

• Decision Date: 20 September 1995
• Docket Number: ROSARIO-HERNANDE,A
• Citation: 666 A.2d 292,446 Pa.Super. 24
• Parties: COMMONWEALTH of Pennsylvania v. Felix Antonioppellant.
• Court: Pennsylvania Superior Court

Page 292

666 A.2d 292

446 Pa.Super. 24

COMMONWEALTH of Pennsylvania v. Felix Antonio ROSARIO-HERNANDEZ, Appellant.

Superior Court of Pennsylvania.

Submitted June 22, 1995.

Filed Sept. 20, 1995.

John Elder, Assistant Public Defender, Reading, for appellant.

Iva C. Dougherty, Assistant District Attorney, Reading, for Commonwealth, appellee.

Before CAVANAUGH, WIEAND and OLSZEWSKI, JJ.

CAVANAUGH, Judge:

This is an appeal from the judgment of sentence of seven (7) to fifteen (15) years imprisonment, imposed following appellant being found guilty as an accomplice to the crimes of voluntary manslaughter, aggravated assault (serious bodily injury), aggravated assault (deadly weapon), and recklessly endangering another person. The charges in this case arose from a shooting incident in Reading, Pennsylvania, in which appellant was the driver of the getaway car. After careful review, and for the reasons which follow, we affirm appellant's convictions, but vacate the trial court's judgment of sentence and remand for resentencing.

The first issue raised by appellant is that the court erred in failing to suppress his statement to police, where he was arrested without probable cause and his statement was the fruit of the illegal arrest. Appellant proffers three arguments that probable cause was lacking: 1) that the police information placing him at the scene was based on hearsay; 2) that the reliability of the witnesses upon which the police relied was not established; and 3) that the information provided to police only established that he was present at the scene.

When reviewing the ruling of a suppression court,

we must determine whether the factual findings are supported by the record. When it is a defendant who has appealed, we must consider only the evidence of the prosecution and so much of the evidence for the defense as, fairly read in the context of the record as a whole, remains uncontradicted. Assuming that there is support in the record, we are bound by the facts as are found and we may reverse the suppression court only if the legal conclusions drawn from those facts are in error. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980); Commonwealth v. Johnson, 467 Pa. 146, 354 A.2d 886 (1976); Commonwealth v. Goodwin, 460 Pa. 516, 333 A.2d 892 (1975).

Commonwealth v. Cortez, 507 Pa. 529, 532, 491 A.2d 111, 112 (1985).

Appellant did not present evidence at the suppression hearing and does not contest the facts surrounding his arrest. His contention is that the suppression court's decision was based upon an erroneous legal conclusion. Thus, we need only determine whether the facts support the conclusion that the arrest of appellant was supported by probable cause.

Probable cause for a warrantless arrest exists if the facts and circumstances within the the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing the suspect has committed or is committing a crime. Commonwealth v. Quiles, 422 Pa.Super. 153, 166-67, 619 A.2d 291, 298 (1993). In determining whether probable cause existed for a warrantless arrest in a particular situation, a court will look not just at one or two individual factors, but will consider the "totality of the circumstances" as they appeared to the arresting officer. Id. The reliability of information provided to police can be verified in a number of ways, including: where the police are able to provide independent corroboration of the information, or where the information is adverse to the individual's penal interest. In the Interest of J.H., 424 Pa.Super. 224, 228, 622 A.2d 351, 353 (1993).

Viewing the facts within the knowledge of the arresting officer, we conclude that he was warranted in believing that appellant had been involved in the commission of a crime. Several police officers, including the arresting officer, interviewed a number of people regarding the shooting incident. Two people, who both witnessed the shooting, told police that they saw a Hispanic male fire shots on Franklin Street and then run to a nearby vehicle (one of the witnesses described it as a big red car) driven by another Hispanic male, which then sped away. A third eyewitness told police that he saw the shooter get out of a red Cadillac and the passenger slide over into the driver's seat. The shooter walked onto Franklin Street and fired several shots at two individuals, then reentered the Cadillac which sped away.

In addition to these three eyewitnesses, several other individuals provided information to police. Nasser Abdellah, who lived with the shooter and appellant at 514 South Eleventh Street, told police that the shooter and appellant had left the house together the day of the shooting and returned together a half hour later. He further revealed that upon returning, the shooter told him that he had shot the victim. Abdellah also told police that he agreed to take the shooter to Philadelphia, and that they left appellant at the residence.

Another individual, Carmello Heyere, told police that his car had been used in the shooting, and that he was at appellant's residence when appellant and the shooter returned after the incident. The shooter advised Heyere that he and appellant had used the red Cadillac to go to and from the shooting and that he had shot a man on Franklin Street. Heyere also told police that appellant was called "Shorty".

Finally, while the police were interviewing Heyere's girlfriend, she received an anonymous phone call. The caller stated that the driver of the shooter's car was at 514 South Eleventh Street (appellant's residence) and goes by the name of "Shorty". The caller also gave a physical description of appellant. Heyere's girlfriend relayed this information to the police.

Based upon all of the information learned by police, we conclude that the Commonwealth did more than place appellant at the scene. Viewed objectively, this information connected him with the shooter in circumstances which made it probable that he was involved with the shooter and/or had acted in concert with him. The information provided by secondary witnesses was also reliable in that it was corroborated to a large degree by eyewitnesses (red Cadillac involved in shooting; two Hispanic males were involved--one was the shooter, the other was the driver), and one of the secondary witnesses proffered information which was adverse to his penal interest (Abdellah helped shooter flee to Philadelphia). Finally, appellant has failed to offer, nor are we aware, of any authority which prohibits the use of hearsay, especially in a case, such as this one, where the information was relayed through other police officers. Of necessity, a determination of probable cause, whether by magistrate or by a police officer, will in many cases require the police to rely on information learned from others. It is for this reason that the reliability of individuals providing information is examined. We remind appellant that the officer need only possess sufficient facts such that a person of reasonable caution would believe that a crime had been committed and that appellant was involved. In this case, the arrest of appellant was supported by an abundance of probable cause.

The second issue raised by appellant is that the evidence was insufficient to support his convictions as an accomplice to voluntary manslaughter, two counts of aggravated assault and recklessly endangering another person. Specifically, appellant argues that there was no evidence that he was aware of the intentions of the shooter, and that his actions were more consistent with innocence than guilt.

SB21[10-15] In evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth, which has won the verdict, and draw all reasonable inferences in its favor. We then determine whether the evidence is sufficient to permit a jury to determine that each and every element of the crimes charged has been established beyond a reasonable doubt. It is the function of the jury to pass upon the credibility of the witnesses and to determine the weight to be accorded the evidence produced. The jury is free to believe all, part or none of the evidence introduced at trial. The facts and circumstances established by the Commonwealth "need not be absolutely incompatible with [the] defendant's innocence, but the question of any doubt is for the jury unless the evidence 'be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.' "

Commonwealth v. Shoup, 423 Pa.Super. 12, 16, 620 A.2d 15, 17 (1993) (citations omitted). Both direct and circumstantial evidence must be considered in determining whether the Commonwealth has proved all of the elements of the offenses charged beyond a reasonable doubt. Commonwealth v. French, 396 Pa.Super. 436, 440, 578 A.2d 1292, 1294 (1990), aff'd., 531 Pa. 42, 611 A.2d 175 (1992).

As noted supra, appellant was found guilty as an accomplice in the shooting incident. A person may be held criminally liable as an accomplice, "if with the intent of promoting or facilitating the commission of the offense, he aids or agrees or attempts to aid such other person in planning or committing it." 18 Pa.C.S.A. § 306(c)(1)(ii). The least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of responsibility as an accomplice. Commonwealth v. Calderini, 416 Pa.Super. 258, 263, 611 A.2d 206, 208 (1992).

The evidence produced at trial established the following. A red Cadillac driven by the shooter, and in which appellant was a passenger, was sitting at a traffic light at Ninth and Franklin Streets. The two men inside were conversing. The shooter then got out of the car and appellant immediately slid over into the driver's seat and put the car in gear. The shooter walked a short distance down Franklin Street...