Commonwealth v. Galendez, 2009 PA Super 185 (Pa. Super. Ct. 9/16/2009)
| Decision Date | 16 September 2009 |
| Docket Number | No. 2798 EDA 2007.,2798 EDA 2007. |
| Citation | 2009 PA Super 185 |
| Parties | COMMONWEALTH OF PENNSYLVANIA, Appellee v. HARRY GALENDEZ, Appellant. |
| Court | Pennsylvania Superior Court |
Appeal from the Judgment of Sentence September 11, 2007 In the Court of Common Pleas of Philadelphia County Criminal No.CP-51-CR-0002330-2007.
BEFORE: KLEIN, PANELLA and KELLY, JJ.
OPINION BY KELLY, J.
¶ 1 Appellant, Harry Galendez, appeals from the judgment of sentence of two to four years' imprisonment entered in the Court of Common Pleas of Philadelphia County following his conviction of multiple violations of the Uniform Firearms Act.1 In this appeal he contests the basis of his arrest, and challenges a condition of his sentence imposed by the trial court. We affirm in part and vacate in part.
¶ 2 At around 7:30 on the evening of October 25, 2006, Philadelphia police officer Steven Johnson and his partner were on routine patrol when they spotted Appellant walking westbound on Westmoreland Street. Officer Johnson recognized Appellant from previous incidents in the area, and abruptly circled back, but Appellant was no longer on the street. Seeing Appellant in a barbershop, the officers entered, and after encountering some resistance, placed him under arrest. A search incident to the arrest revealed a loaded handgun in Appellant's waistband.
¶ 3 Prior to the Gun Court trial, Appellant filed a motion in limine to suppress the gun, arguing that the police had arrested him in violation of his constitutional rights, as they did not possess a warrant and lacked probable cause or reasonable suspicion to arrest and/or stop and frisk him. After a hearing, the court denied the motion.
¶ 4 At the subsequent bench trial, the Commonwealth introduced all nonhearsay testimony from the suppression hearing, as well as evidence that: (1) the gun was operable; (2) Appellant was not licensed to carry a weapon; and (3) because of his felony drug record, Appellant was not permitted to own a gun. Appellant testified in his own defense, alleging that someone in the barbershop threw the gun to the floor after the officers had arrested him. The trial court convicted2 Appellant of persons not to possess firearms,3 firearms not to be carried without a license,4 carrying firearms on the public streets of Philadelphia,5 and possession of a firearm with an altered serial number.6
¶ 5 Having waived a pre-sentence investigation and mental health evaluation, Appellant was sentenced the same day. Although the recommended minimum sentence under the Sentencing Guidelines was thirty-six to forty-eight months' imprisonment, the court sentenced Appellant in the mitigated range, ordering him to serve two to four years' imprisonment followed by one year of reporting probation. The following day, in the absence of both Appellant and his counsel,7 the trial court entered an order adding the following condition to Appellant's probation and parole: 8 (Order, 9/12/07).9
¶ 6 Upon learning of the order, Appellant's counsel filed a post-sentence motion on September 20, 2007 challenging the legality of the new condition and the fact that it was imposed in the absence of both Appellant and defense counsel. The trial court denied the motion without a hearing on October 11, 2007. Thereafter, Appellant filed a timely notice of appeal and was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 15, 2008, Appellant requested an extension of time to file the statement upon receipt of the notes of testimony, which were not yet available. Receiving no answer, Appellant filed a timely 1925(b) statement on February 29, 2008, and the trial court issued its opinion on March 7, 2008. Subsequently, Appellant received the notes of testimony and was permitted to file a supplemental statement of errors, which he did on July 16, 2008. In response, the trial court filed a supplemental opinion on July 16, 2008, simply incorporating by reference its previously filed opinion.
¶ 7 On appeal, Appellant raises three issues for our review challenging the trial court's denial of his suppression motion, the addition of the probation/parole condition in his absence, and the validity of that condition. (Appellant's Brief at 3).
¶ 8 Appellant first argues that the trial court erred in denying his motion to suppress because he was arrested without probable cause in violation of his constitutional rights based "on [ ] a supposed warrant for which there was no evidence in the record[.]" (Appellant's Brief at 3).
¶ 9 The standard of review of an appeal from a denial of a motion to suppress is well settled:
Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution 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 findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc) (internal quotation marks and citations omitted). "[A]t a suppression hearing the Commonwealth carries the burden of production and persuasion to establish by a preponderance of the evidence that the evidence was properly obtained." Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. 1998), appeal denied, 747 A.2d 368 (Pa. 1999) (citation and internal quotation marks omitted). See also Pa.R.Crim.P. 581(H) ().
¶ 10 The purpose of both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution is to protect citizens from unreasonable searches and seizures. See Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (citations omitted).
In determining whether Appellant was lawfully arrested, we begin with the notion that law enforcement authorities must have a warrant to arrest an individual in a public place unless they have probable cause to believe that 1) a felony has been committed; and 2) the person to be arrested is the felon. A warrant is also required to make an arrest for a misdemeanor, unless the misdemeanor is committed in the presence of the police officer.
Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (citations omitted).
[P]robable cause for a warrantless search exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing that suspect has committed or is committing a crime. When we examine a particular situation to determine if probable cause exists, we consider the totality of the circumstances, and do not concentrate on each individual element. We further note that probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent men act.
Commonwealth v. Wright, 867 A.2d 1265, 1267-68 (Pa. Super. 2005), appeal denied, 879 A.2d 783 (Pa. 2005), cert. denied, 546 U.S. 1104 (2006) (citations and internal quotation marks omitted).
¶ 11 At the suppression hearing, Officer Johnson testified that he arrested Appellant because he "knew [Appellant] to have a scofflaw warrant[,]" (N.T., 9/11/07, at 5). Appellant's first claim on appeal rests on the assertion that because the Commonwealth failed to produce the scofflaw warrant referred to by Officer Johnson, it failed to meet its burden of proof. We are not persuaded.
¶ 12 Appellant relies principally for support on our Supreme Court's decision in Commonwealth v. Queen, 639 A.2d 443 (Pa. 1994). There, a uniformed police officer responded to a radio request from detectives for backup. When he arrived at the scene, the detectives informed him only that the defendant resembled a person wanted for robbery. The officer approached the defendant's vehicle and asked him to exit. The defendant complied, and as he stepped out of the car, the officer observed a gun protruding from his shirt. When the defendant failed to produce a license for the weapon, he was arrested, and later sought to suppress the gun. The sole witness offering evidence at the suppression hearing was the arresting officer who knew nothing of the facts relied upon by the detectives.
¶ 13 The trial court denied the motion, and this Court affirmed, but the Pennsylvania Supreme Court reversed, relying on certain decisions of the United States Supreme Court10 for "the proposition that a stop and frisk may be supported by a police radio bulletin only if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion." Queen, supra at 445 (emphasis in original). In applying that principle, the Court held that suppression should have been granted because the Commonwealth failed to prove that the detectives had reasonable suspicion to believe the defendant was wanted for robbery. Because such facts were not provided, "the suppression court was required to speculate as to whether [the detectives] had sufficient facts to establish a reasonable suspicion." Id. at 446.
¶ 14 In Commonwealth v. Cotton, 740 A.2d 258 (Pa. Super. 1999), to which Appellant would have us compare his own case, a plainclothes officer driving in an unmarked car...
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