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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE CRUZ
Appellant No. 2676 EDA 2016
Appeal from the Judgment of Sentence April 13, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0004122-2016
BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.
MEMORANDUM BY PANELLA, J. FILED OCTOBER 06, 2017
The trial court found Appellant, Jose Cruz, guilty of possession of crack
cocaine and sentenced him to a probationary period of three years.1 On
appeal, Cruz challenges the sufficiency of the Commonwealth’s evidence at
his suppression hearing and at trial. After careful review, we conclude the
Commonwealth failed to meet its burden at the suppression hearing, and
therefore reverse.
When reviewing a denial of a suppression motion, “we must consider
only the evidence of the prosecution and so much of the evidence of the
defense as remains uncontradicted when read in the context of the record as
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1 Additional charges of possession with intent to deliver and conspiracy were
dismissed after a preliminary hearing.
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a whole.” Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007).
We are not bound by the suppression court’s legal conclusions and review
the suppression court’s application of the law to the facts de novo. See
Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015).
In contrast, we defer to the suppression court’s findings of fact as it is
in the bailiwick of the suppression court to assess the credibility of witnesses
and the weight to be given to their testimony. See id. “It is within the
suppression court’s sole province as factfinder to pass on the credibility of
witnesses and the weight to be given to their testimony. The suppression
court is free to believe all, some or none of the evidence presented at the
suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183
(Pa. Super. 2003) (citations omitted).
Cruz opened his suppression hearing by seeking to suppress “any and
all physical evidence that came from [Cruz] on February 11, 2016 … on th
grounds – specifically narcotics on the grounds that there’s no reasonable
suspicion to stop my client, nor reasonable suspicion to frisk my client, no
probable cause to arrest my client and no probable cause to search my client
[incident to any arrest.]” See N.T., Suppression Hearing, 4/13/16, at 5. In
response to this, the Commonwealth presented a single witness, Philadelphia
Police Sergeant Patrick Love. Sergeant Love testified he was in plain clothes
in an unmarked police vehicle when he observed Cruz purchase crack
cocaine from another man. See id., at 7-8. Sergeant Love “then went over
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radio and … notified officers of their description and – to come and stop
them.” Id., at 8 (emphasis supplied). He then testified to his experience in
investigating narcotics and the basis of his belief the objects Cruz received
contained crack cocaine. See id., at 9-11. The Commonwealth then rested.
At no point in the suppression hearing did the Commonwealth present
evidence concerning the stop of Cruz. Nor did it present evidence of where
the challenged evidence was found. In fact, the Commonwealth did not even
present evidence of what was found.2
Most importantly, the Commonwealth did not present evidence of why
or how Cruz was searched. Sergeant Love testified that he instructed other
officers to “stop” Cruz. This could mean that he instructed officers to
approach Cruz and question him, or it could mean that he instructed them to
arrest Cruz.
From this record, we conclude the trial court’s finding that Sergeant
Love had probable cause to stop Cruz is supported by competent evidence.
Furthermore, it was reasonable for the trial court to infer that another officer
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2 While the Commonwealth did present evidence on these issues at the
subsequent trial, we cannot consider this evidence in reviewing the
suppression court’s decision to deny Cruz’s suppression motion. See In re
L.J., 79 A.3d 1073, 1085 (Pa. 2013).
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was relying on Cruz’s statement when the officer stopped Cruz.3 Beyond this
point, however, there is no evidence in the suppression record.
In responding to a motion to suppress, the Commonwealth bears the
burden of proving “the constitutional rights of the accused were not violated
by the search.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa.
2014). This is true even on issues upon which the accused bears the
ultimate burden of persuading the finder of fact. See id., at 701-702.
With this in mind, we note that the record of the suppression hearing
does not support any finding regarding the search of Cruz or the seizure of
crack cocaine. The investigating officer may have seen the crack cocaine in
plain view. Or he may have recognized it during a Terry4 search. Perhaps
the crack cocaine was found in a body cavity. The important point is that the
record cannot legally support any of these findings.
If the officers believed that they were justified in arresting Cruz based
upon Sergeant Love’s instruction, any subsequent search and seizure would
have been justified based upon our conclusion regarding probable cause. But
there is no evidence that can support a finding that the officers, objectively
or subjectively, arrested Cruz before searching him. Thus, any conclusion
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3The investigating officer was justified in relying on Sergeant Love’s radioed
order, even in the absence of corroborating information. See
Commonwealth v. Anthony, 97 A.2d 1182, 1187 (Pa. Super. 2009).
4 Terry v. Ohio, 392 U.S. 1 (1968)
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regarding the lawfulness of the search and seizure can be based only upon
pure conjecture.
Under these circumstances, the Commonwealth failed to carry its
burden of establishing that Cruz’s constitutional rights were not violated by
the search and seizure. We must therefore reverse the trial court’s order
denying Cruz’s suppression motion, which necessarily reverses the judgment
of sentence in its entirety.
Judgment of sentence reversed. Appellant discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/6/2017
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