Commonwealth of Pa. v. Cruz

• Decision Date: 14 July 2011
• Parties: COMMONWEALTH of Pennsylvaniav.Annibal CRUZ, Appellant.
• Court: Pennsylvania Superior Court

21 A.3d 1247

2011 PA Super 106

COMMONWEALTH of Pennsylvania

v.Annibal CRUZ, Appellant.

Superior Court of Pennsylvania.

Submitted Nov. 1, 2010.Filed May 17, 2011.Reargument Denied July 14, 2011.

Anthony J. Petrone, Philadelphia, for appellant.Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: FORD ELLIOTT, P.J., MUNDY and OTT, JJ.OPINION BY FORD ELLIOTT, P.J.:

Appellant, Annibal Cruz, brings this appeal following his conviction for various weapons' offenses. Appellant raises multiple suppression issues and a sufficiency of the evidence claim. Finding no merit, we affirm.

A suppression hearing held immediately prior to appellant's trial revealed the following facts. At approximately 1:25 p.m. on November 1, 2008, Officer Joseph Doyle of the Philadelphia police received a radio dispatch to be on the lookout for an “Hispanic male driving an older model green, small vehicle.” (Notes of testimony, 6/22/09 at 7.) The report stated that the man had a gun. ( Id.) Approximately one minute later, Officer Doyle observed a vehicle answering that description, which he stated “stuck out,” being “a classic car sort of a bright green, older color that you don't see on vehicles anymore.” ¹ ( Id. at 7–8.) Officer Doyle activated his lights and siren, and appellant brought the car to a halt between the moving and parking lanes. ( Id. at 8, 21–22.) Officer Doyle observed appellant moving sideways in the front seat. ( Id. at 9–10.) Officer Doyle approached the car and asked appellant for his driver's license, vehicle registration, and proof of insurance. ( Id. at 10–11.) Appellant said he had a license, but was evasive about where it was. ( Id. at 11, 14.) Appellant could provide neither of the other two items. ( Id.) The car also had no license plate. ( Id. at 14.) Appellant identified himself to Officer Doyle with five or six different names, and also different dates of birth. ( Id. at 11–12.) Officer Doyle testified that the computer was eventually able to produce a “hit” on appellant using the name Annibal Cruz, one of the birthdates, and appellant's Social Security number. Officer Doyle discovered that appellant had an outstanding warrant. ( Id. at 12.)

Within one minute of appellant's stop, other officers arrived on the scene with the initial complainant, who identified appellant as the man who had pulled a gun and threatened her. ( Id. at 12–13.) Officer Doyle ran the vehicle identification number, but found no result in Pennsylvania. ( Id. at 14.) Police then impounded the vehicle. ( Id. at 15.) Prior to the tow truck arriving, Officer Doyle conducted a brief inventory search of the vehicle, which the officer stated was protocol. ( Id. at 27.) When he touched a latched compartment on the vehicle's passenger side, the door fell open, revealing a firearm. ( Id. at 17–18.) Officer Doyle stated that he went to the passenger side because that was the direction in which he had observed appellant moving sideways. ( Id. at 18.) A rubber glove was also found in the car. ( Id. at 34.) The complainant had reported that appellant was wearing gloves. ( Id.) Upon inquiry, appellant stated that he used the glove to wash and wax the car. ( Id.)

Immediately after the court denied appellant's suppression motion, a bench trial was conducted. The court found appellant guilty of persons not to possess, use, manufacture, control, sell, or transfer firearms, firearms not to be carried without a license, and carrying firearms on public streets or public property in Philadelphia.² On September 14, 2009, appellant was sentenced to an aggregate term of 5 to 10 years' imprisonment. This timely appeal followed.

Appellant raises the following issues on appeal:

I. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS PHYSICAL EVIDENCE DISCOVERED DURING THE WARRANTLESS SEARCH OF A VEHICLE OPERATED BY THE DEFENDANT AFTER THE CAR WAS STOPPED BY THE POLICE BASED ON A VAGUE RADIO CALL ABOUT A PERSON WITH A GUN?

II. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS PHYSICAL EVIDENCE SEIZED DURING A WARRANTLESS SEARCH OF THE VEHICLE OPERATED BY THE DEFENDANT AFTER HE WAS IN POLICE CUSTODY AND WHERE NO EXIGENT CIRCUMSTANCES EXISTED THAT WOULD JUSTIFY A SEARCH OF THE VEHICLE WITHOUT A WARRANT?

III. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS PHYSICAL EVIDENCE SEIZED DURING AN UNLAWFUL LIVESTOP INVENTORY SEARCH OF THE VEHICLE OPERATED BY THE DEFENDANT BECAUSE (1) THE SEARCH INTO THE LATCHED COMPARTMENT THAT WAS SEPARATE FROM THE GLOVE BOX WAS CONDUCTED SOLELY FOR INVESTIGATIVE PURPOSES, (2) THE COMMONWEALTH FAILED TO SHOW THAT THE SEARCH COMPLIED WITH REASONABLE, STANDARD POLICIES AND PROCEDURES ESTABLISHED

BY THE PHILADELPHIA POLICE DEPARTMENT FOR CONDUCTING INVENTORY SEARCHES, (3) THE SEARCH EXCEEDED THE PHYSICAL SCOPE OF AN OTHERWISE VALID INVENTORY SEARCH, AND (4) THE POLICE DID NOT WAIT 24 HOURS BEFORE SEARCHING THE VEHICLE PURSUANT TO THE LIVESTOP STATUTE?

IV. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS AN INCRIMINATING STATEMENT MADE BY THE DEFENDANT WHILE IN POLICE CUSTODY WHERE THE POLICE FAILED TO FIRST ADVISE THE DEFENDANT OF HIS MIRANDA RIGHTS?

V. WAS THE EVIDENCE WAS [SIC] INSUFFICIENT AS A MATTER OF LAW TO SUPPORT THE GUILTY VERDICTS ON THE THEORY THAT THE DEFENDANT WAS IN CONSTRUCTIVE POSSESSION OF THE HANDGUN BECAUSE THE EVIDENCE FAILED TO SHOW THAT HE HAD KNOWLEDGE OF, OR INTENDED TO CONTROL, THE HANDGUN SECRETED OUT OF PLAIN VIEW IN A LATCHED COMPARTMENT OF THE VEHICLE HE WAS OPERATING?

Appellant's brief at 4.

We begin our analysis of the suppression issues with this standard of review:

[I]n addressing a challenge to a trial court's denial of a suppression motion [we are] limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the [Commonwealth] prevailed in the suppression court, we may consider only the evidence of the [Commonwealth] and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010), quoting Commonwealth v. Bomar, 573 Pa. 426, 445, 826 A.2d 831, 842 (2003).

In his first issue, appellant asserts that the information contained in the radio dispatch was not sufficiently reliable to amount to reasonable suspicion to justify Officer Doyle's initial stop. We observe that the forcible stop of a vehicle constitutes an investigative detention such that there must be reasonable suspicion that illegal activity is occurring. Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa.Super.2006), appeal denied, 594 Pa. 685, 934 A.2d 71 (2007). Police are justified in stopping a vehicle when relying on information transmitted by a valid police bulletin. In re D.M., 556 Pa. 160, 164, 727 A.2d 556, 558 (1999). Moreover, even where the officer who performs the stop does not have reasonable suspicion, the stop is nonetheless valid if the radio officer requesting the stop has reasonable suspicion. Commonwealth v. Jackson, 548 Pa. 484, 490 n. 3, 698 A.2d 571, 574 n. 3 (1997).

Appellant bases his argument on two decisions of this court, Commonwealth v. Wiley, 858 A.2d 1191 (Pa.Super.2004), appeal dismissed as improvidently granted, 588 Pa. 391, 904 A.2d 905 (2006), and Commonwealth v. Jones, 845 A.2d 821 (Pa.Super.2004). In Wiley, an anonymous informant contacted Philadelphia police that he had observed the appellant in the possession of a firearm, gave police a description of appellant, and the address of appellant's current location, a barbershop. An officer was alerted by radio dispatch, and he proceeded to the barbershop where appellant was stopped, frisked, and arrested. The informant subsequently came forward, but at the time of appellant's stop, the informant's identity was unknown. This court held that the vague, anonymous call did not supply the requisite reasonable suspicion necessary to make a Terry stop.³ The fact that the informant accurately described appellant and his location does not give any indication that appellant was also likely engaged in criminal activity; rather, further corroboration of criminal activity was required

Similarly, in Jones, Harrisburg police received a call informing them that a burgundy Chevrolet with license plate EJT8020 was parked on the 1100 block of Hannover Street and that drug activity was occurring. An officer was dispatched and appellant was stopped, frisked, and arrested. Police subsequently contacted the informant. The difference in Jones was that the police dispatcher at least knew the name of the informant. In addition to mirroring the rationale of Wiley, Jones also held that merely knowing the name of the informant did not render the information sufficiently reliable to justify the stop. We note that Jones is in conflict with other cases. Other cases have found that knowing the identity of the informant does sufficiently heighten the reliability of the information because where the informant's identity is known, he or she risks prosecution for giving false information to police.⁴ See Commonwealth v. Altadonna, 817 A.2d 1145, 1152 (Pa.Super.2003); Commonwealth v. Hayward, 756 A.2d 23, 34 (Pa.Super.2000). Notwithstanding this discrepancy, we find sufficient indicia of reliability in the present case.

Within one minute of appellant's stop, additional police arrived on the scene accompanied by the original complainant/informant. From this fact it may be inferred that the complainant was known to, and was in the company of, the police prior to the stop. Therefore, we find two reasons to attach heightened reliability to the information conveyed by the complainant. First, not only was the complainant known to the police, the complainant was actually in the company of...