author: FORD, J,

text:
    City of Allentown v. International Association of Fire Fighters

      C.P. of Lehigh County,
    no. 2007-C-3514.

      John Marchetto, for petitioner.

      Quintes D. Taglioli, for respondent.
    September 17, 2008
   FORD, J,

Before the court are the “petition to review arbitration award” filed on October 3,2007, and the “amended petition to review arbitration award” filed on November 13, 2007, by the City of Allentown. In these petitions, City asserts that an arbitration panel acted without jurisdiction and beyond its authority in a decision made on September 5,2007, regarding the rate of pay for specialist fire fighters. An argument was conducted on the petitions on June 12,2008. For the reasons that follow, we deny the City’s petitions and order the arbitration panel to immediately decide the issue of pay for the specialists.

PROCEDURAL HISTORY

City and the International Association of Fire Fighters, Local 302 (Union) are parties to a collective bargaining agreement (CBA). The CBA resulted from a December 22,2004 arbitration “award” issued by a panel composed of Thomas Anewalt, Esquire, John S. Stribula and Alan Symonette, Esquire. The panel acted pursuant to Act 111 (43 P.S. §§217.1-217.10), which governs collective bargaining between municipalities and fire fighters. The CBA went into effect on January 1,2005, and expires on December 31, 2011.

During the collective bargaining process, City and Union could not agree on a rate of pay for specialist fire fighters. The parties addressed this stalemate by including section 16 in the CBA. Under section 16, the parties were ordered to form a “Rank Differential Special Teams” committee. The committee was to be composed of representatives from the City and the Union, who would examine the duties of the specialists in question. The committee had to reduce its findings to writing by September 1, 2005. If, after reviewing the committee report, the parties could still not reach a resolution, the arbitration panel would make a final determination as to the specialists’ pay. According to section 16, the jurisdiction of the arbitration panel would expire on December 2, 2005.

For various reasons, the committee mandated by section 16 of the CBA was not formed. On December 30, 2005, after the jurisdiction of the arbitration panel had expired according to section 16, the City and the Union entered into a “memorandum of understanding” (MOU). In section 10 of the MOU, the parties agreed that the committee required under section 16 would still be formed. The agreement stated that the committee would complete its work by September 1, 2006. In section 11 of the MOU, the parties agreed that they were not empowered to extend the jurisdiction of the original arbitration panel. However, section 11 further provided that any dispute arising out of the interpretation of section 16 of the CBA would be arbitrated by a newly constituted panel comprised of Anewalt, Stribula and Symonette, the members of the original panel.

The parties once again failed to form the section 16 committee. On September 13, 2006, the Union sent a letter to Mayor Edward Pawlowski of the City. The letter, after citing the original arbitration award and the MOU, explained that the parties had reached an impasse as to the means to resolve the issue of pay for the specialist fire fighters. The Union demanded arbitration.

On April 30, 2007, the arbitration panel conducted a hearing to resolve the dispute. At the hearing, City argued that the panel lacked jurisdiction to hear the dispute and to supplement the original arbitration award. City further contended that the Union failed to follow the grievance process detailed in the original CBA prior to seeking arbitration. The panel rejected both of these arguments. The panel then ordered that the parties form the committee required in section 16 of the CBA. The committee was to complete its investigation by September 1,2007. The panel indicated that, if the parties could not agree to terms regarding specialists’ pay by the time the committee completed its report, the arbitration panel itself would decide the issue on September 10, 2007.

On September 5, 2007, Arbitrator Symonette, acting for a majority of the arbitration panel, reduced to writing this award stemming from the April 30,2007 arbitration hearing. City challenges this award through the present petitions. Due to this challenge by the City, the Rank Differential Special Teams committee again failed to form.

DISCUSSION AND CONCLUSIONS OF LAW

City asks us to set aside the arbitration order of September 5,2007. It claims that the arbitration panel lacked the jurisdiction to decide the matter. Specifically, City claims that the panel’s jurisdiction expired on December 2,2005, according to the terms of section 16 of the CBA. City also argues that the panel lacked the power to add additional terms to the CBA. Finally, City contends that Union wrongfully sought arbitration without exhausting the grievance process established by the original CBA.

City previously argued each of the aforementioned points in front of the arbitration panel on April 30,2007. In making its decision, the panel considered the terms of the CBA and the MOU. It found some of the terms of the two agreements contradictory, but it attempted to reconcile the two documents.

In cases involving Act 111, the court exercises a narrow certiorari scope of review. Pennsylvania State Police v. Pennsylvania State Troopers Association (Trooper James Betancourt), 540 Pa. 66, 79, 656 A.2d 83, 89-90 (1995). The court can review only “(1) the jurisdiction of the arbitrators; (2) the regularity of the proceedings; (3) an excess of the arbitrator’s powers; and (4) deprivation of constitutional rights.” Id.

The standard of review on these four topics is plenary in most circumstances, but is one of extreme deference to the arbitrators in cases where the resolution of the issues depends upon fact-finding or interpretation of the collective bargaining agreement. City of Philadelphia v. Fraternal Order of Police Lodge No. 5, 932 A.2d 274, 280 (Pa. Commw. 2007). The court “is bound by the arbitrator’s determination of these matters even though [it] may find them to be incorrect.” Id.

The arbitrators in this case interpreted the terms of the CBA and the MOU in deciding whether they possessed the jurisdiction to decide the dispute, whether they had the authority to order a remedy, and whether Union followed the proper procedure in demanding arbitration. Because the arbitrators engaged in interpretation of the CBA, the law mandates that we give the arbitrators’ final decision extreme deference. Therefore, it is unnecessary for the court to determine whether the panel’s conclusions were legally accurate. The arbitration order of April 30, 2007, is valid.

The Pennsylvania Supreme Court has commented on the importance of consistency and good faith in collective bargaining.

“To permit a public employer to secure an advantage in the bargaining process by agreeing to a term and subsequently avoid compliance by belatedly asserting that term’s illegality is . . . inimical to the integrity of the bargaining process and undermines the harmonious relationship it was designed to foster.” Fraternal Order of Police, E.B. Jermyn Lodge No. 2, by Tolan v. Hickey, 499 Pa. 194, 198, 452 A.2d 1005, 1007 (1982). “[T]he statutorily mandated obligation to bargain in good faith is not met by permitting the governmental employer to avoid the performance of a term by questioning its legality after having received the advantages that flowed from the term’s acceptance.” Id. at 199, 452 A.2d at 1008.

Here, City voluntarily entered into the MOU with the Union. In the MOU, City agreed that the period for allowing the section 16 committee to be formed would be extended. City further agreed with the Union, in a rather inventive way by both, that the original Act 111 arbitrators would resolve any disagreements related to the committee and interpretations of section 16. After the parties failed to assemble the committee, Union, in accord with the MOU, called for arbitration.

City, instead of abiding by the terms of the MOU which it signed, claimed the agreement did not grant the arbitration panel jurisdiction to hear the dispute. Additionally, City argued that Union failed to follow proper grievance procedures by demanding arbitration, even though the demand adhered to the conditions of the MOU. These arguments contradict City’s written agreement. We simply hold City to the terms of its agreement found in the MOU.

We are mindful of the prolonged nature of this dispute between City and Union. There is a need for finality on the issue of pay for the specialists. The arbitration award of September 5, 2007, seems to indicate that, if the parties failed to agree on specialists’ pay after the committee report was completed on September 1, 2007, the arbitration panel would decide the question itself at a hearing on September 10, 2007. That date has passed and no agreement has been reached regarding the pay for the specialists. Accordingly, we order the arbitration panel to decide this matter without the formation of a Rank Differential Special Teams committee. This directive is consistent with the parties’ agreement and it finally will bring an end to this dispute.


source: Caselaw Access Project

author: HECKLER, J,

license: Public Domain

text:
    Commonwealth v. Perry
    C.P. of Bucks County,
    no. 1194-2008.

      Holly Smith, for Commonwealth.

      Michael K. Parlow, for defendant.
    October 17, 2008
   HECKLER, J,

On May 5, 2008, appellant Marquis Tyrell Perry was convicted of possession of cocaine with the intent to deliver, possession of a controlled substance, possession of drug paraphernalia, resisting arrest, and disorderly conduct — engaging in fighting. That same day appellant was sentenced to serve a term not less than three months nor more than 23 months at Bucks County Correctional Facility as well as two years probation to be served consecutively to any other time appellant was then serving. Appellant has filed a timely appeal to the Pennsylvania Superior Court. Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we file this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On January 16, 2008 at approximately 10:30 p.m., Officer Thomas Phillips was on patrol with his partner Officer Anthony Durle in the Bloomsdale section of Bristol Township, Bucks County, Pennsylvania. N.T. 5/5/08, p. 6. The Bloomsdale section of Bristol Township is known by the officers to be a high-crime area where drugs are prevalent. N.T. 5/5/08, p. 4. It has been designated to be an area subj ect to the federal “Weed and Seed” program which aims at reducing the prevalence of drugs and street crime in specified neighborhoods. N.T. 5/5/08, p. 4.

On the night of January 16,2008, Officers Phillips and Durle were both in uniform, patrolling in a marked vehicle. N.T. 5/5/08, p. 6. Following them in another marked vehicle was Officer Eugene Zourybida and his partner Michael Sarcewicz. N.T. 5/5/08, pp. 13, 27-28. Zourybida and Sarcewicz were also in uniform. N.T. 5/5/08, pp. 27-28. The officers were traveling along Liberator Street approaching Mitchell Road when they first came upon appellant standing in a group of people at the comer of Mitchell Road and Liberator Street. N.T. 5/5/08, pp. 6-7. Officer Phillips did not immediately recognize appellant. N.T. 5/5/08, p. 8. As soon as appellant saw the officers, he and a second individual backed away from the group and began walking on Mitchell Road in the opposite direction of the patrol cars. N.T. 5/5/08, pp. 7, 14. Officer Phillips identified the second individual as a “Mr. Wilson Jr.” Mr. Wilson was known to the officer to have a serious prior record of criminal convictions. N.T. 5/5/08, p. 8. Officers Phillips andDurle followed appellant and Mr. Wilson down Mitchell Road in their patrol car, notifying Officers Zourybida and Sarcewicz that they intended to approach the pair. N.T. 5/5/08, pp. 8, 16. Officers Zourybida and Sarcewicz remained at the comer of Mitchell Road and Liberator Street. N.T. 5/5/08, pp. 13, 15.

Officer Phillips followed the two men down Mitchell Road, eventually pulling to the curb ahead of where the two men were walking. N.T. 5/5/08, pp. 14-15. Officer Phillips got out of the patrol car and approached the men on foot, asking them to stop and talk to him. N.T. 5/5/08, p. 9. His intent was to learn appellant’s identity. N.T. 5/5/08, p. 9. Officer Durle remained in the patrol car at that time. N.T. 5/5/08, p. 18.

As Officer Phillips approached the two men, appellant turned around and took off “in a full-out run” back toward the comer of Mitchell Road and Liberator Street. N.T. 5/5/08, p. 9. Officer Phillips called back to the two officers at the comer, informing them that appellant was running toward them. N.T. 5/5/08, pp. 9-10. Officer Phillips then proceeded to perform a pat-down search of Wilson Jr., to ensure that he was not armed. N.T. 5/5/08, p. 9.

Officer Zourybida, who had exited his patrol vehicle at the corner of Liberator Street and Mitchell Road, saw appellant running straight toward him. N.T. 5/5/08, pp. 13 -15,29. Zourybida noticed that appellant was running with both hands in his pockets. N.T. 5/5/08, p. 30. When appellant saw Officer Zourybida, his eyes popped wide open as though he was surprised. N.T. 5/5/08, p. 29. Keeping his hands in his pockets, he darted to the other side of the street, and continued away from the area of the encounter. N.T. 5/5/08, pp. 29-30. Officer Sarcewicz ran across the street, catching up with appellant. N.T. 5/5/08, p. 30. The officer stepped in front of appellant and grabbed him. N.T. 5/5/08, p. 30.

Both Officer Sarcewicz and Officer Zourybida tussled with appellant for several minutes, as appellant tried to fight his way free from their grasp. N.T. 5/5/08, pp. 30-32. Appellant knocked the officers into a fence and then down to the ground. N.T. 5/5/08, pp. 30-32. Eventually Officer Durle arrived on foot to assist. N.T. 5/5/08, p. 31. Officer Zourybida repeatedly warned appellant to “stop or else he would get sprayed.” N.T. 5/5/08, pp. 31-32. When appellant did not desist, Officer Durle sprayed him with pepper spray. N.T. 5/5/08, pp. 31-32. Eventually, the three officers were able to subdue and arrest appellant. N.T. 5/5/08, p. 32. On the ground at the scene ofthe struggle, the officers found $183 in small bills, several pills and a clear plastic bag containing 32 smaller plastic bags which held a substance later identified as cocaine. N.T. 5/5/08, p. 38, exhibit Cl Bristol Police Department Property Receipt.

On May 5,2008 this court held a hearing on appellant’s motion to suppress any statements or physical evidence obtained as a result of the seizure of appellant on January 16, 2008. This court denied appellant’s motion and a bench trial followed. Appellant was found guilty on all counts.

II. ISSUES RAISED ON APPEAL

Upon request by this court pursuant to Pennsylvania Rule of Appellate Procedure 1925, appellant has filed the following statement of matters complained of:

“(1) Whether the trial court erred in deciding that the defendant was not seized.

“(2) Whether the trial court erred in deciding that there were sufficient facts to support a reasonable suspicion to justify an investigatory detention.

“(3) Whether the trial court erred in deciding that the defendant was not forced to abandon property.”

III. DISCUSSION

The law on Fourth Amendment seizures, as it applies to the instant matter, is clear. Where a police officer approaches an individual and attempts to speak with that individual, the officer need not provide any justification for the interaction. In re D.M., 566 Pa. 445, 451, 781 A.2d 1161, 1164 (2001); Commonwealth v. Brown, 904 A.2d 925, 928 (Pa. Super. 2006) (citing In re D.M.). Such an interaction is not considered a seizure under the federal or state constitutions, and is always permitted. Id.

When police stop and frisk an individual, however, they have effectuated a seizure of that individual for constitutional purposes. Id. To legally conduct a stop and frisk, an officer must have a reasonable suspicion that criminal activity is afoot. Commonwealth v. Miller, 876 A.2d 427, 429 (Pa. Super. 2005). Both the United States Supreme Court and the Supreme Court of Pennsylvania have found that unprovoked flight from police in a high-crime area is sufficient to create a reasonable suspicion to justify a stop and frisk under the Fourth Amendment. Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000); In re D.M., 781 A.2d 1161; Brown, 904 A.2d at 928; Miller, 876 A.2d at 430-31.

In the instant case, the police acted lawfully when they stopped appellant on the night of January 16,2008. It is beyond dispute that the area in which the encounter occurred was a high-crime area as that term has been used in relevant cases. Officer Phillips’ initial approach of appellant and Mr. Wilson Jr. was completely lawful. Officer Phillips testified that he exited his vehicle, and walked toward appellant and Wilson Jr. The officer did not order the men to stop, but rather attempted to engage in a conversation with them. This interaction did not constitute a seizure and did not necessitate any particularized justification. Appellant was not seized until Officers Zourybida and Sarcewicz forcibly stopped him as he was running away from Officer Phillips. Because appellant fled from Officer Phillips in a high-crime area, his conduct created a reasonable suspicion of criminal activity that justified the seizure.

As appellant struggled to free himself from police, several pills, bags of cocaine and cash fell from the area of his person onto the ground. These items were seized by police. Because these items were obtained as a result of the lawful seizure of appellant, they too were lawfully seized. This court appropriately denied appellant’s motion to suppress the items seized on the evening of January 16, 2008. See Commonwealth v. Johnson, 474 Pa. 512, 519, 379 A.2d 72, 75 (1977) (evidence obtained in violation of an individual’s constitutional right to be free from unreasonable searches and seizures cannot be used against him at trial.), (emphasis added)

For the foregoing reasons, appellant is not entitled to the relief he seeks and his appeal should be denied.


author: LUDGATE, J,

text:
    Commonwealth v. Perez

      C.P. of Berks County,
    no. CP-06-CR-2456-2008.

      Adrian Shchuka, for Commonwealth.

      Kevin Beals and Sean Fitzgerald, for defendant.
    November 18, 2008
   LUDGATE, J,

This matter is before this court on the defendant’s omnibus pretrial motion in which the defendant raises habeas corpus as to Count 2, murder of the first degree of Kayla Diaz-Santiago, a motion to declare the death penalty unconstitutional and a motion to quash aggravating factors. Defendant Albert Perez’ omnibus pretrial motion shall be decided based on the pretrial hearing held before this court on September 19, 2008.

1. FACTUAL HISTORY OF THE CASE

Albert Perez (defendant) and Duceliz Diaz-Santiago were boyfriend and girlfriend and resided at the Shillington home of Haydee Santiago, Duceliz Diaz-Santiago’s mother, from November 2004 to June of 2005. (N.T. pretrial hearing 9/19/2008 pp. 31-33.) Haydee Santiago testified that the defendant would “mistreat” Kayla Diaz-Santiago, Duceliz Diaz-Santiago’s daughter, including “grab[ing] [her] by the ear.” (N.T. pretrial hearing 9/19/2008 pp. 33-34.) Santiago further testified that the defendant told her daughter that they had to move out of Santiago’s home after Santiago began to call the defendant’s attention to the mistreatment. Id.

Haydee Santiago last saw her daughter alive on January 14 of 2007. (N.T. pretrial hearing 9/19/2008 p. 35.) Hay dee Santiago testified that on that day, Duceliz Diaz-Santiago’s home was well organized and “looking really nice” and that Duceliz Diaz-Santiago was the happiest she had ever seen her because her job had become permanent. (N.T. pretrial hearing 9/19/2008 p. 35.) The previous day, January 13, 2007, Diaz-Santiago told her mother that the defendant had asked “if she wanted to go leave with him outside of the state.” (N.T. pretrial hearing 9/19/2008 p. 36.) Diaz-Santiago planned to meet the defendant and said the defendant had a surprise for Diaz-Santiago and Kayla. (N.T. pretrial hearing 9/19/2008 pp. 36-37.)

Duceliz Diaz-Santiago and Kayla Diaz-Santiago were found dead on January 15, 2007, at 404 Main Street, Bemville, Berks County, Pennsylvania. (N.T. pretrial hearing 9/19/2008 pp. 35, 40.) Duceliz Diaz-Santiago’s body was found with a ligature around the neck which was not looped or tied in any way. (N.T. pretrial hearing 9/19/2008 p. 42.) Kayla Diaz-Santiago’s body was found hanging from a bathroom towel rod by use of a pair of pajama bottoms tied into a complex knot. (See Commonwealth exhibits 4 p. 6, 3 p. 4.)

An alleged suicide note was found on a computer located in the living room of the apartment. (N.T. pretrial hearing 9/19/2008 p. 43.) The note read exactly as follows; all mistakes are contained in the original text of the note:

“I’m doing something today thast will affe4ct us all, I want uou to do me a favor, get jajaira and eddie and all 4 of their kids, he raped me when i went to their hous e and she watched, so i want you to kill thenm, ill be watchin to make sure you do this, leave albert alone though just tell albert i love him and this ist his fault, and its not the familys faut eithe, i just deont weant to live anymore, mommy and poppi i Hove you, mio i love you Carlos i love you and Brenda i love you, please tell albert i will always love him.... i sorry it has to be this way everyone, but this is what iv wanted to do for a very long tmie, peace3 out and i ’ll be keeping an eye on all of you, and even though we argued andfight over stupid things, you guys are always gonna bwe in my heart, ” (Commonwealth exhibit 5, N.T. pretrial hearing 9/19/2008 p. 44.)

Corporal Moyer testified that “jajaira” is the defendant’s ex-wife, “eddie” is Jajaira’s current boyfriend and the defendant fathered four children with Jajaira. (N.T. pretrial hearing 9/19/2008 p. 44.) The alleged suicide note was submitted to the Behavioral Sciences Unit of the Federal Bureau of Investigation (FBI). (N.T. pretrial hearing 9/19/2008 p. 45.) Analysis of the note by the FBI Behavioral Sciences Unit determined it “highly likely” that the defendant authored the notes and “highly likely” that Diaz-Santiago did not author the note. Id.

Two days after the discovery of victim’s bodies, police first spoke with the defendant at his place of employment. (N.T. pretrial hearing 9/19/2008 pp. 45-46.) In his first statement to police, the defendant stated that he and Diaz-Santiago were in a relationship for about two years, but he had not seen her in approximately two months. (N.T. pretrial hearing 9/19/2008 p. 46.) The defendant stated that he was not the biological father of Kayla Diaz-Santiago but had signed paperwork for her custody and was paying child support to her mother. (N.T. pretrial hearing 9/19/2008 p. 47.) The defendant stated that on the morning of January 15, 2007, he was living with his girlfriend, Melanie Ledbetter, at her residence in Wyomissing, Berks County, Pennsylvania. Id. On that day, the defendant claimed “he got up, took (Melanie Ledbetter) to work in the morning, and returned back home and went to bed.” Id. The defendant then admitted that he saw Duceliz at her workplace the Friday before the homicide, that they had sexual relations inside his car and that he told her he had a new girlfriend and that this would be the last time he would see her. (N.T. pretrial hearing 9/19/2008 p. 48.) The defendant continued to deny that he was at Diaz-Santiago’s residence in Bemville on January 15, 2007. Id.

Diaz-Santiago’s computer was taken into evidence by authorities and a search warrant was served on America Online for any data in their possession. (N.T. pretrial hearing 9/19/2008 pp. 48-49.) Diaz-Santiago used the e-mail address of Alandliz04@aol.com. (N.T. pretrial hearing 9/19/2008 p. 49.) E-mails obtained pursuant to the search warrant revealed that the defendant and Diaz-Santiago continued to have an ongoing relationship despite the defendant’s residing with another woman. Id. One e-mail from the defendant to Diaz-Santiago sent on August 15, 2006 reads “She aint my kid. Take me off support.” (See Commonwealth exhibit 6 p. 6; N.T. pretrial hearing 9/19/2008 p. 51.) Another e-mail from Diaz-Santiago to the defendant sent January 4, 2007 states “she has a huge surprise.” (See Commonwealth exhibit 6 p. 2; N.T. pretrial hearing 9/19/2008 p. 52.) The defendant also filed a petition for modification of an existing support order on August 11, 2006, in the Berks County Court of Common Pleas, in which the defendant sought to terminate child support on grounds of substantially changed circumstance, claiming “Kayla is not my daughter.” (See Commonwealth exhibit 7; N.T. pretrial hearing 9/19/2008 pp. 52-53.) The petition was denied on September 28, 2006. (See Commonwealth exhibit 7 p. 2.)

A search warrant was executed on the defendant’s residence, that being his girlfriend’s home located at 1537 Singer Road, Wyomissing, Berks County, Pennsylvania. (N.T. pretrial hearing 9/19/2008 p. 53.) This search recovered a Sony Playstation 2 video game console which was identified as belonging to Diaz-Santiago. Id. Several individuals had seen the Playstation 2 in Diaz-Santiago’s apartment. (N.T. pretrial hearing 9/19/2008 p. 54.) Also, upon discovery of the victims’ bodies, a cabinet in Diaz-Santiago’s apartment was found to be dusty, except for one spot as though something had recently sat there. Id.

Police questioned the defendant again on January 19, 2007. (N.T. pretrial hearing 9/19/2008 p. 54.) In his second statement to police, the defendant again denied being at Diaz-Santiago’s apartment on the day of the homicide and denied possession of the Playstation 2. (N.T. pretrial hearing 9/19/2008 pp. 54-55.)

The defendant gave a third statement to police on January 24,2007, in which he admitted to being at Diaz-Santiago’s apartment the day of the homicide but denied having sexual relations with her on January 15, 2007. (N.T. pretrial hearing 9/19/2008 pp. 55-56.) However, a lab report prepared by the Bethlehem DNA laboratory in Bethlehem, Pennsylvania found “[t]he DNA profile obtained from the blood sample of Albert Perez . . . matches the DNA profile obtained from sperm fractions from the crotch panel of Duceliz Diaz-Santiago’s black underwear . . . and the swabs collected from Duceliz Diaz-Santiago[].” (See Commonwealth exhibit 8 p. 5; N.T. pretrial hearing 9/19/2008 pp. 56-57.)

On April 18,2007, a search warrant was executed on the defendant’s body; blood and hair samples were seized. (N.T. pretrial hearing 9/19/2008 p. 58.) On that day, the defendant also gave afourth statement to police in which he admitted he and Diaz-Santiago had sexual relations on the day of the homicide. Id.

Upon his arrest on May 1, 2007, the defendant gave his fifth statement to police, in which he admitted to killing Duceliz Diaz-Santiago, but blamed Duceliz Diaz-Santiago for the death of Kayla Diaz-Santiago. (N.T. pretrial hearing 9/19/2008 p. 59.) The defendant stated “I started screaming at Liz as to why she [killed Kayla] and laid Kayla back down. At that point she started screaming repeatedly.” (N.T. pretrial hearing 9/19/2008 pp. 60-61.) However, Corporal Moyer testified that neighbors in the area were canvassed and the only screaming heard by anyone was that of children playing in a shower. (N.T. pretrial hearing 9/19/2008 pp. 61-62.) Regarding the death of Duceliz Diaz-Santiago, the defendant stated that “[a]t that moment I didn’t realize how but I picked up the cord that was lying on the floor and then, without knowing how, I ended up behind Liz, strangling her with the cord. After realizing she had passed out and went limp, I dropped her and left the building.” (N.T. pretrial hearing 9/19/2008 p. 60.) The defendant then admitted that he staged the crime scene by hanging Kayla’s body on the towel rack, attempting to hang Diaz-Santiago’s body on the closet coat rack and writing the alleged suicide note. Id. After doing so, the defendant stated “[o]n my way home, I called my Mom and had a small conversation with her. I went home, exercised, ate, and took a small nap. I then went to Mel’s job to get her lunch. After getting her lunch and spending about a half hour with her, I went back to Liz’ apartment. When I got there, I saw that the roads were shut down and the police were there, so I turned around and came back home.” (N.T. pretrial hearing 9/19/2008 p. 61.)

Pathologist Dr. Richard Bindie conducted autopsies of Duceliz Diaz-Santiago and Kayla Diaz-Santiago. (See Commonwealth exhibits 1 and 2; N.T. pretrial hearing 9/19/2008 p. 22.) Regarding Duceliz Diaz-Santiago, Dr. Bindie concluded the cause of death to be “compressive neck injury or trauma with features of ligature strangulation.” (N.T. pretrial hearing 9/19/2008 pp. 22-23.) Ligature strangulation, Dr. Bindie explained, is categorized as a type of asphyxiation in which blood vessels to the brain and the windpipe are compressed which could cause death within a few minutes, usually not exceeding eight minutes. (N.T. pretrial hearing 9/19/2008 p. 23.) Dr. Bindie also stated that unconsciousness but not death could occur during ligature strangulation within “half a minute up to a minute or two.” (N.T. pretrial hearing 9/19/2008 p. 24.) Dr. Bindie concluded that it would be “almost impossible” for a person to hang oneself without having a ligature looped, tied or wrapped around one’s neck. (N.T. pretrial hearing 9/19/2008 p. 25.) Dr. Bindie concluded that Duceliz Diaz-Santiago’s manner of death was homicide. (N.T. pretrial hearing 9/19/2008 p. 26.)

Regarding Kayla Diaz-Santiago, Dr. Bindie concluded the cause of death to be “compressive neck injury or trauma with features of ligature strangulation and suspension or hanging.” (N.T. pretrial hearing 9/19/2008 p. 26.) Kayla Diaz-Santiago’s body was found with a complex knot ligature around the neck, which Dr. Bindie described as very tight and tough to open and unravel. (N.T. pretrial hearing 9/19/2008 p. 27.) The knot could not have become so tight simply by the weight of Kayla’s body, Dr. Bindie concluded. Id. Dr. Bindie stated that it was possible that Kayla was alive but unconscious at the time the ligature was tied because suffocation generally takes longer than ligature strangulation. (N.T. pretrial hearing 9/19/2008 pp. 27-29, 30.) Kayla’s manner of death was homicide. (N.T. pretrial hearing 9/19/2008 p. 29.)

Dr. Isidore Mihalaki, a forensic pathologist, was consulted by Corporal Moyer regarding the manner of death of Duceliz Diaz-Santiago and Kayla Diaz-Santiago. (N.T. pretrial hearing 9/19/2008 p. 62.) Dr. Mihalaki did not testify at the pretrial hearing, but his report was introduced through Corporal Moyer. Id. Dr. Mihalaki’s report concluded “that the mother’s death preceded the daughter’s death.” (N.T. pretrial hearing 9/19/2008 p. 63.)

2. DISCUSSION OF ISSUES PRESENTED IN DEFENDANT’S OMNIBUS PRETRIAL MOTION

The defendant raises the following issues:

(A) Petition for the issuance of a writ of habeas corpus

(B) Motion to declare the death penalty unconstitutional

(C) Motion to quash aggravating factors

(D) Motion to allow for enlargement of penalty phase expert witness(es) at public expense

(E) Motion for change of venue or venire

(F) Motion to reserve the right to file additional pretrial motions

The court will only address issues A, B and C. Issue A will be limited to Count 2, murder of the first degree of Kayla Diaz-Santiago, because the defendant raised habeas corpus only as to that count. (N.T. pretrial hearing 9/19/2008 p. 69.) Issue D has previously been granted. (N.T. pretrial hearing 9/19/2008 p. 6.) Issue E was denied with the possibility of revisiting the issue upon jury selection. Id. Issue F was granted under extraordinary circumstances. (N.T. pretrial hearing 9/19/2008 p. 7.)

This matter will be determined based on the evidence and testimony presented at the pretrial hearing held before the court on September 19, 2008, the defendant’s brief in support of his omnibus pretrial motion, the Commonwealth’s brief in opposition to the motion, and the applicable statutory and case law.

A. Petition for the Issuance of a Writ of Habeas Corpus

The scope of habeas corpus review is to determine whether the Commonwealth has sufficient evidence to establish a prima facie case against the accused on* the crimes charged. Commonwealth v. Packard, 767 A.2d 1068 (Pa. Super. 2001). In order to establish a prima facie case, the Commonwealth is required to present evidence with regard to each of the material elements of a charge and to establish sufficient probable cause to warrant belief that the accused committed the offenses charged. Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360 (2005); Commonwealth v. Lutz, 443 Pa. Super. 262, 661 A.2d 405 (1995). While the Commonwealth is not required to prove guilt beyond a reasonable doubt, the evidence presented to establish a prima facie case should be such that, if presented at trial and accepted as true, the judge would be warranted in allowing the case to go to the jury. Commonwealth Santos, 583 Pa. 96, 876 A.2d 360 (2005); Commonwealth v. Saunders, 456 Pa. Super. 741, 691 A.2d 946(1997).

In order to prove a person guilty of murder of the first degree, 18 Pa.C.S. §2505(a), the Commonwealth must prove that the killing was done intentionally. 18 Pa.C.S. §2505(a). “A person acts intentionally with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.” 18 Pa.C.S. §302(b)(l). The Commonwealth may prove any element or all the elements of the crime of homicide by circumstantial evidence. Commonwealth v. Crawley, 514 Pa. 539, 551, 526 A.2d 334, 340 (1987). “There is no requirement that a homicide, including murder in the first degree, be proven by eyewitness testimony.” Commonwealth v. Hardcastle, 519 Pa. 236, 250, 546 A.2d 1101, 1107-1108 (1988), cert. denied, 493 U.S. 1093 (1990).

The defendant has been charged with the killing of Kayla Diaz-Santiago. This court finds that the Commonwealth has offered sufficient evidence relating to the charge of murder in the first degree. The evidence before this court is that the defendant would mistreat Kayla Diaz-Santiago. (N.T. pretrial hearing 9/19/2008 pp. 33-34.) The defendant resented paying child support to her mother and had previously sought to terminate his obligation. (See Commonwealth exhibit 6 p. 6; N.T. pretrial hearing 9/19/2008 p. 51; see Commonwealth exhibit 7; N.T. pretrial hearing 9/19/2008 p. 52.) The Commonwealth presented evidence that the defendant arranged to meet with the victims on the day of the homicide and was present at Duceliz Diaz-Santiago’s Bernville apartment the day of the homicide. The defendant admitted to killing Duceliz Diaz-Santiago, fabricating the alleged suicide note and staging the scene to look like a murder-suicide perpetrated by Diaz-Santiago. However, the Commonwealth presented evidence that Duceliz Diaz-Santiago did not kill Kayla Diaz-Santiago, namely Dr. Mihalaki’s report “that the mother’s death preceded the daughter’s death.” (N.T. pretrial hearing 9/19/2008 p. 63.)

This court finds there is sufficient circumstantial evidence to support the charge of murder in the first degree of Kayla Diaz-Santiago. The defendant’s motion for habeas corpus as to murder in the first degree of Kayla Diaz-Santiago is denied.

B. Constitutionality of the Death Penalty

The issue of whether the death penalty is constitutional has been carefully and fully explained by the Pennsylvania Supreme Court in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1452 (1983), reh. denied, 463 U.S. 1236, 104 S.Ct. 1236, 77 L.Ed.2d 1452 (1983). In Zettlemoyer, the court held, “[i]t is undisputed that the framers of the United States Constitution did not consider the death penalty to be a per se violation of the prohibition against4 cruel punishments ’. ” Id. at 74, 454 A.2d at 967. “Neither did the framers of the Pennsylvania Constitution, Article I, Section 9 enacted simultaneously with Article I, Section 13, [which] provides ‘nor can (the accused in a criminal prosecution) be deprived of his life, liberty, or property, unless by the judgment of his peers or the law of the land.’” Id. at 74, 454 A.2d at 967. “For the foregoing reasons, we hold that the death penalty is not ‘cruel punishment’ within the proscription of Article I, Section 13 of the Pennsylvania Constitution, and . . . [is] permissible under the constitutions of this state and of the United States.” Id. at 77, 454 A.2d at 969. See also, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). Additionally, “Pennsylvania’s capital cases receive the highest [level of] scrutiny and have more procedural safeguards than cases involving other crimes.” Commonwealth v. Cuevas, 574 Pa. 409, 418, 832 A.2d 388, 393 (2003).

Additionally, the Pennsylvania Supreme Court has upheld the validity of Pennsylvania’s death penalty. The courts have ruled that 42 Pa.C.S. §971 l(d)(16) is not unconstitutionally vague or overbroad. “It is a fundamental principle of constitutional law that a challenge to a statute may not be raised in the abstract but must find its basis in an injury to the party seeking to have the enactment declared unconstitutionally infirm.” Commonwealth v. Bell, 512 Pa. 334, 342, 516 A.2d 1172, 1177 (1986). See Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). Commonwealth v. Bardo, 551 Pa. 140, 154-55, 709 A.2d 871, 878 (1998). This court has previously addressed and rejected vagueness challenges to various other aggravating circumstances. See Commonwealth v. Fahy, 521 Pa. 298, 316, 516 A.2d 689, 698 (1986).

42 Pa.C.S. §971 l(d)(l 1), the aggravating factors that a defendant had previously been convicted of another murder either before or at the time of the charged capital murder does not violate the Eighth Amendment or the Due Process Clause. Commonwealth v. Fletcher, 580 Pa. 403, 861 A.2d 898 (2004).

42 Pa.C.S. §9711 is not denial of equal protection of law since the statute creates categories for which the penalty may be imposed and is rationally related to a legitimate state objective. “Absent some showing that prosecutorial discretion is being abused in the selection of cases in which the death penalty will be sought, there is no basis for appellant’s assertions [that the statute violates the Eighth Amendment].” Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), cert. denied, 483 U.S. 1010, 107 S.Ct. 3241, 97 L.Ed.2d 746 (1987). “The same rationale can be applied to appellant’s unsupported equal protection challenge. Therefore, absent some actual showing of prosecutorial abuse of discretion, appellant’s argument is without merit.” Commonwealth v. Hardcastle, 512 Pa. 236, 258, 546 A.2d 1101, 1111 (1988). (footnote omitted) See also, Commonwealth v. Tilley, 528 Pa. 125, 595 A.2d 575 (1991).

42 Pa.C.S. §9711 does not violate the Separation of Powers Doctrine. “It is the province of the legislature to determine the punishment imposable for criminal conduct.” (footnote omitted) Commonwealth v. Wright, 508 Pa. 25, 40, 494 A.2d 354, 361 (1985), aff’d sub nom., McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). “We perceive no difference between the mandatory nature of the death penalty and other mandatory sentencing, which is constitutional with respect to the doctrine of separation of powers and procedural due process.” Commonwealth v. Moore, 534 Pa. 527, 549, 633 A.2d 1119, 1130 (1993). See also, Commonwealth v. Nenninger, 359 Pa. Super. 444, 519 A.2d 433 (1986).

The defendant contends that the method of execution employed by this Commonwealth, being lethal injection, constitutes cruel and unusual punishment. However, this issue was addressed very recently by the United States Supreme Court. Lethal injection by three drug protocol (sodium thiopental, pancuronium bromide and potassium chloride) does not violate the Eighth Amendment’s prohibition upon cruel and unusual punishment. Baze v. Rees, 128 S.Ct. 1520 (2008). “[T]he rights . . . against ‘cruel punishments’ [Article I, Section 13 of the Pennsylvania Constitution] are co-extensive with those secured by the Eighth and Fourteenth Amendments [of the United States Constitution].” Zettlemoyer, 500 Pa. at 73-74, 454 A.2d at 967.

The Commonwealth has not made public the actual combination of drugs used to conduct a lethal injection but statute requires use of “an ultrashort-acting barbiturate in combination with chemical paralytic agents.” 61 P.S. §3004(a). The Supreme Court of the United States has never invalidated a state’s chosen procedure for carrying out a sentence of death on grounds of cruel and unusual punishment. Baze, 128 S.Ct. at 1530.

C. Motion to Quash Aggravating Factors

Because habeas corpus has been denied as to Count 2, this motion is withdrawn as per defense counsel’s motion and the court need not address it.

      . Although the defendant’s omnibus pretrial motion does not raise any claim of violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny, the court wishes to note that the defendant initialed the custodial written statement, acknowledging an affirmative response to each of the questions “Do you understand your rights as I have explained them to you?”, “With these rights in mind, do you now wish to make a statement?” and “Can you read and write the English language?”. (See Commonwealth exhibit 9. p. 1.)


author: BUCCI, J,

text:
    Commonwealth v. Albarran

      C.P. of Berks County,
    no. CP-06-CR-0000373-2008.

      Jay M Nigrini, for appellant.

      James T. Goldsmith, for appellee.
    October 15, 2008
   BUCCI, J,

PROCEDURAL HISTORY

In a bench trial held on July 25,2008, Jose Gonzalez Albarran (appellant) was found guilty of possession with intent to deliver a controlled substance, possession of a controlled substance, possession of drug paraphernalia, driver’s license to be required and registration and certificate to be required.

This court sentenced the appellant, on July 25, 2008, to nine to 36 months for possession with intent to distribute a controlled substance with a concurrent sentence of two to 12 months for possession of drug paraphernalia, for an aggregate sentence of nine to 36 months.

On August 21,2008, appellant filed a timely notice of appeal to the Pennsylvania Superior Court. On August 28, 2008, this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). Appellant filed a timely concise statement on September 3, 2008, alleging the court erred:

“(1) In denying appellant’s motion to suppress physical evidence after the arresting officer illegally searched and seized money from the appellant’s pockets and then failed to obtain a knowing and voluntary consent to search the appellant’s vehicle.”

FACTUAL BACKGROUND

On January 1,2008, Officer Christopher Cortazzo was on routine patrol in the City of Reading, Berks County. N.T. at 3-4. At approximately 9 p.m., Officer Cortazzo stopped the appellant’s vehicle in the 800 block of North 11th Street of the city because the vehicle registration sticker expired the previous day. N.T. at 4-5. As Officer Cortazzo approached the vehicle on foot, appellant stuck his head out of the driver’s side window of his vehicle and yelled, “Hey, Cortazzo. You know me from Topher’s Cafe.” Officer Cortazzo did not recognize appellant. However, Officer Cortazzo is familiar with the illegal drug activity that occurs in Topher’s Cafe.

Just prior to asking appellant for identification, Officer Cortazzo smelled marijuana emanating from the vehicle. N.T. at 7. He also saw that appellant was shaking and his demeanor, in general, was “peculiar and suspicious”. N.T. at 7. Thereafter, Officer Cortazzo asked appellant to exit his vehicle. N.T. at 8. After he exited his vehicle, appellant attempted to reach in his pants pockets on three occasions. N.T. at 9. Officer Cortazzo asked appellant to keep his hands out of his pockets and to “relax” numerous times. Concerned for his safety, Officer Cortazzo conducted a Terry frisk of appellant. During the course of the patdown, Officer Cortazzo discovered a razor-blade-style knife and nearly $3,000 in U.S. currency in appellant’s pants pockets.

Then, while speaking with the passenger of the vehicle, Officer Cortazzo observed a white plastic shopping bag containing a box of Ziploc bags and a brick-shaped object wrapped tightly in a plastic bag on the back seat of the vehicle. N.T. at 10-11. Officer Cortazzo asked appellant if there was anything illegal in the vehicle. Appellant told Officer Cortazzo, that he did not have anything illegal. Appellant then offered Officer Cortazzo the opportunity to search the vehicle. Incident to defendant’s consent, Officer Cortazzo search the vehicle and retrieved the two suspicious plastic shopping bags containing a brick of marijuana, a digital scale and a box of Ziploc bags. N.T. at 12-14. When Officer Cortazzo placed the marijuana and contraband on the roof of the vehicle, appellant fled on foot. N. T. at 15. Officer Uczynski pursued and later apprehended appellant.

DISCUSSION

Appellant argues this court erred by denying appellant’s pretrial motion to suppress evidence of a brick of marijuana and numerous items of contraband found on his person and in his vehicle.

In reviewing a decision to admit or suppress evidence, the reviewing court must ascertain whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) citing Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa. Super. 1999). The reviewing court should only consider the evidence of the Commonwealth and any defense evidence which remains uncontradicted when read in the context of the entire record. Ryerson, 817 A.2d at 513.

This court held an omnibus pretrial hearing on April 24, 2008. After hearing testimony and considering the arguments of counsel, the court wrote findings of fact and conclusions of law denying the appellant’s motion to suppress the evidence. This court hereby incorporates by reference its findings of fact and conclusions of law. However, the court will briefly summarize its conclusions in support of its decision to deny appellant’s motion to suppress the evidence.

Pursuant to the valid traffic stop, Officer Cortazzo justifiably asked the appellant to step out of his vehicle for officer safety because the traffic stop occurred at night in a high-crime area; because the defendant appeared very nervous and his hands were shaking; and because defendant said he frequented Topher’s Cafe which Officer Cortazzo knows is a place where illegal drug sales occur. See Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005), citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), for the proposition that after a valid traffic stop the police do not need any level of suspicion to ask the occupants to step out of the vehicle.

Then Officer Cortazzo conducted a Terry frisk of appellant. A law enforcement officer may pat down an individual detained for investigative purposes if the officer has reasonable suspicion that the individual is presently armed and dangerous. Commonwealth v. E. M., 558 Pa. 16, 28, 735 A.2d 654, 661 (1999), citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). Nevertheless, a Terry frisk, should be limited to what is necessary for the discovery of weapons or immediately identifiable contraband. See e.g., In re J.N., 878 A.2d 82 (Pa. Super. 2005); Com monwealth v. Johnson, 429 Pa. Super. 158, 631 A.2d 1335 (1993).

Although Officer Cortazzo was justified in patting down appellant to conduct a limited frisk for weapons and contraband, the seizure of the $2,890 from the defendant’s pocket exceeded the permissible scope of a Terry frisk. There is no evidence on the record that Officer Cortazzo had reason to believe that the currency was contraband or a weapon. Therefore, the court concludes that the seizure of the $2,890 was unconstitutional. However, the Commonwealth argues that the inevitable discovery rule permits the Commonwealth to overcome the taint created by the warrantless seizure of the cash.

The inevitable discovery rule, provides that illegally seized evidence may be admissible, if the Commonwealth can establish “that ultimately or inevitably [the evidence] would have been discovered by lawful means.” Commonwealth v. Ariondo, 397 Pa. Super. 364, 378, 580 A.2d 341, 348 (1990), citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The Pennsylvania Superior Court held, in Van Winkle, that currency illegally seized from the defendant during a search of his person was nevertheless admissible, under the inevitable discovery rule, since it would have been found pursuant to a search incident to arrest for possession of contraband seized from the defendant’s vehicle. Van Winkle, 880 A.2d at 1285.

In Van Winkle, after initiating a valid traffic stop, the arresting police officer frisked the defendant for weapons and found $3,385 on his person. Van Winkle, 880 A.2d at 1282, 1285. Thereafter, the police officer discovered 30 grams of cocaine and a small amount of marijuana in the car. Id. Similarly, in this case, Officer Cortazzo seized $2,890 cash from the defendant’s person, and later found a brick of marijuana and other contraband in the vehicle. In both instances, the search of the vehicle was valid and the currency would have ultimately been found during a search incident to arrest for the contraband found in the car. Id. Consequently, the $2,890 is admissible evidence under the inevitable discovery rule.

During the course of the traffic stop Officer Cortazzo used his flashlight to see into the interior of appellant’s vehicle. In the back seat, he observed, in plain view and from a lawful vantage point, two plastic bags — one containing Ziploc bags and the other containing a brick-shaped object. Based on his training and experience, he reasonably believed the object to be a brick of marijuana. Consequently, the seizure of the marijuana, Ziploc bags and scale were incident to a valid search under the plain view doctrine.

Even if the plain view doctrine is not applicable, nevertheless the search of the car was constitutionally permissible per the defendant’s consent. Appellant’s consent followed a lawful detention. Officer Cortazzo had reasonable suspicion to stop appellant’s car for violation of the Vehicle Code. Furthermore, Officer Cortazzo had reasonable grounds to suspect that appellant was involved in illegal drug activity because of the odor of marijuana emanating from the vehicle, the appellant’s suspicious actions in a high-crime area and appellant’s association with an establishment known for illegal drug trafficking. Therefore, appellant was legally detained pursuant to the traffic violation and for suspicion of illegal drug activity.

Defense counsel argues, citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000), and Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000), that the initial traffic stop concluded and a second investigative detention occurred when Officer Cortazzo reached into appellant’s pockets. In both, Freeman and Stridden, the arresting officer returned the defendant’s license and concluded the traffic stop before requesting consent to search the vehicle without reasonable suspicion or probable cause. Freeman, 563 Pa. at 85, 90, 757 A.2d at 905, 908; Strickler, 563 Pa. at 53, 757 A.2d at 886-87. The facts at bar are distinguishable. Here, in contrast, Officer Cortazzo, under the reasonable belief that drug activity was afoot, conducted his search of the vehicle prior to concluding the lawful traffic stop.

Officer Cortazzo was the only officer who spoke with appellant; no official weapons were drawn; and appellant was not restrained in any way. The interaction occurred on a city street, in a well-populated area. The defendant is 30 years old, of at least normal intelligence. Moreover, the consent to search the vehicle was not made in response to a request from Officer Cortazzo, but was rather an unsolicited offer to search the vehicle on the part of appellant. Based on a totality of the circumstances, the Commonwealth has met its burden. These factors prove that the consent was voluntary and not the product of duress, coercion or incidentally, the seizure of currency.

Because the marijuana and contraband were in plain view and appellant voluntarily consented to the search of his vehicle, the court requests that this allegation of error be denied.

June 16, 2008

CONCLUSION

For the foregoing reasons, it is respectfully requested that appellant’s appeal be denied and his judgment of sentence affirmed.

BUCCI, J,

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN DISPOSITION OF THE DEFENDANT’S MOTION TO SUPPRESS THE EVIDENCE

(1) Defendant is charged with possession with intent to deliver a controlled substance to wit; marijuana; possession of marijuana; and possession of drug paraphernalia, and related conspiracy charges. All of which arose out of the search of the defendant and the vehicle he operated on January 1, 2008.

(2) On January 1, 2008 at approximately 9 p.m. Officer Christopher Cortazzo of the Reading Police Department was on routine patrol in the 800 block of North 11th Street in the City of Reading, Berks County, Pennsylvania.

(3) At that time and place Officer Cortazzo observed and stopped a vehicle operated by the defendant because he observed that the vehicle registration sticker had expired on midnight of December 31, 2007 (21 hours earlier).

(4) The 800 block of North 11th Street is known to Officer Cortazzo to be a high-drug, high-crime area. This block is also associated with illegal gang activity.

(5)As Officer Cortazzo approached the driver side of the vehicle, the defendant who was the operator of the vehicle stuck his head out of the driver’s side window and called to Officer Cortazzo by name stating, “Hey, Cortazzo. You know me from Topher’s Cafe.” Officer Cortazzo did not recognize the defendant. However, the defendant’s admission raised Officer Cortazzo’s suspicion because Topher’s Cafe is associated with illegal drug activity and sales.

(6)When Officer Cortazzo reached the driver’s side window, he smelled the distinct odor of marijuana emanating from the car (he is very familiar with the odor of marijuana based upon his training and experience as a police officer).

(7)When Officer Cortazzo asked the defendant for identification, the defendant responded that he did not have any identification on his person.

(8) Officer Cortazzo testified that the defendant appeared nervous and his hands were shaking.

(9) Officer Cortazzo then asked the defendant to step out of the vehicle.

(10) While speaking to the defendant outside of the vehicle, the defendant repeatedly attempted to put his hands in his pockets. Officer Cortazzo told the defendant three times not to put his hands in or near his pockets because Officer Cortazzo was concerned for his safety.

(11) Officer Cortazzo then conducted a patdown of the defendant’s clothing and reached into the defendant’s pocket and seized $2,890 in cash from the defendant’s pants pocket. Officer Cortazzo asked the defendant where he got so much money and the defendant responded “I worked my ass off.”

Officer Cortazzo then shined his flashlight into the interior of the vehicle and observed a white translucent plastic shopping bag containing a box ofZiploc bags and observed what appeared to be a brick-shaped object wrapped tightly in another plastic bag. Officer Cortazzo testified that the brick-shaped object appeared to him to be a brick of marijuana based upon his training and experience. However, Officer Cortazzo did not enter the vehicle or seize the suspected contraband at this point in the encounter.

(12) Officer Cortazzo then asked the defendant if there was anything illegal in the car. The defendant responded that there was nothing illegal in the car and the defendant offered Officer Cortazzo the opportunity to search the car.

(13) After attaining the defendant’s consent, Officer Cortazzo searched the car and seized the plastic shopping bag which did, indeed, contain a brick of marijuana and a digital scale.

(14) Officer Cortazzo retrieved the said items from the car and placed the scale and the Ziploc bags on the roof of the car. When the defendant saw this he fled on foot and was chased and apprehended by Officer Uczynski.

(15) The defendant was arrested and searched. Two cell phones and his identification were seized from his person pursuant to the search incident to his arrest.

CONCLUSIONS OF LAW

(16) The courts have identified three levels of interaction between citizens and the police. “The first of these is a ‘mere encounter’ (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or respond. The second, an ‘investigative detention’, must be supported by a reasonable suspicion; it subjects a suspect to a stop and. a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or ‘custodial detention’ must be supported by probable cause.” Commonwealth v. Pakacki, 587 Pa. 511, 519, 901 A. 2d 983, 987 (2006). (internal citations omitted)

(17) An investigative detention occurs when the police temporarily detain an individual by means of physical force or a show of authority for investigative purposes. Commonwealth v. Barber, 889 A.2d 587, 592 (Pa. Super. 2005). Police may stop and detain a vehicle where there is reasonable suspicion of criminal activity or the police have observed a violation of the Motor Vehicle Code. Commonwealth v. Polo, 563 Pa. 218, 225, 759 A.2d 372, 376 (2000).

(18) On December 31,2007 an investigative stop occurred between Officer Cortazzo and the defendant when Officer Cortazzo conducted a valid traffic stop of the defendant’s vehicle because he observed the expired vehicle registration sticker. 75 Pa.C.S. §6308(b).

(19) Pursuant to the valid traffic stop, Officer Cortazzo was justified in asking the defendant to step out of the car for his safety because the traffic stop occurred at night in a high-crime area; because the defendant appeared very nervous and his hands were shaking; and because defendant said he frequented Topher’s Cafe which Officer Cortazzo knows is a place where illegal drug sales occur. See Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005), citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) for the proposition that after a valid traffic stop the police do not need any level of suspicion to ask the occupants to step out of the vehicle.

(20) “As a general rule, a search or seizure without a warrant is deemed unreasonable for constitutional purposes.” Commonwealth v. Holzer, 480 Pa. 93, 102, 389 A.2d 101, 106 (1978), quoting Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971).

(21) However, a law enforcement officer may pat down an individual detained for investigative purposes if the officer has reasonable suspicion that the individual is presently armed and dangerous. Commonwealth v. E.M., 558 Pa. 16, 28, 735 A.2d 654, 661 (1999), citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). Nevertheless, a Terry frisk, should be limited to what is necessary for the discovery of weapons or immediately identifiable contraband. See e.g., In re J.N., 878 A.2d 82 (Pa. Super. 2005); Commonwealth v. Johnson, 429 Pa. Super. 158, 631 A.2d 1335 (1999).

(22) Although Officer Cortazzo was justified in patting down the defendant to conduct a limited frisk for weapons and contraband, the seizure of the $2,890 from the defendant’s pocket exceeded the permissible scope of a Terry frisk. There is no evidence on the record that Officer Cortazzo had reason to believe that the currency was contraband or a weapon. Therefore, the court concludes that the seizure of the $2,890 was unconstitutional.

(23) However, the Commonwealth argues that the inevitable discovery rule permits the Commonwealth to overcome the taint created by the warrantless seizure of the cash. To put plainly, the cash would have been found after the lawful search of the defendant incident to his arrest for the contraband found in the car.

(24) The inevitable discovery rule, provides that illegally seized evidence may be admissible, if the Commonwealth can establish “that ultimately or inevitably [the evidence] would have been discovered by lawful means.” Commonwealth v. Ariondo, 397 Pa. Super. 364, 378, 580 A.2d 341, 348 (1990), citing Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984).

(25) The Pennsylvania Superior Court held, in Van Winkle, that currency illegally seized from the defendant during a search of his person was nevertheless admissible, under the inevitable discovery rule, since it would have been found pursuant to a search incident to arrest for possession of contraband seized from the defendant’s vehicle. Id. at 1285.

In Van Winkle, after initiating a valid traffic stop, the arresting police officer frisked the defendant for weapons and found $3,385 on his person. Thereafter, the police officer discovered 30 grams of cocaine and a small amount of marijuana in the car. Similarly, in this case, Officer Cortazzo seized $2,890 cash from the defendant’s person, and later found a brick of marijuana and other contraband in the vehicle. In both instances, the search of the vehicle was valid and the currency would have ultimately been found during a search incident to arrest for the contraband found in the car. Id. at 1282, 1285.

(26) Consequently, the $2,890 is admissible evidence under the inevitable discovery rule.

(27) The Pennsylvania Supreme Court has stated, “under the plain view doctrine, the warrantless seizure of . . . evidence which is in plain view is permissible when two criteria are met. First, the evidence must be seen from a lawful vantage point. Second, it must be immediately apparent . . . that the object observed is incriminating evidence.” Commonwealth v. Ellis, 541 Pa. 285, 297, 662 A.2d 1043, 1049 (1995). A police officer may view the interior of a car in the same fashion as any private citizen. Commonwealth v. Petroll, 558 Pa. 565, 576, 738 A.2d 993, 999 (1999). Further, nothing precludes a police officer from using a flashlight to bring objects into plain view. Commonwealth v. Milyak, 508 Pa. 2, 6, 493 A.2d 1346, 1348 (1985).

(28) During the course of the traffic stop Officer Cortazzo used his flashlight to see into the interior of the defendant’s vehicle. In the back seat, he observed, in plain view and from a lawful vantage point, two plastic bags — one containing Ziploc bags and the other containing a brick-shaped object. Based on his training and experience, he reasonably believed the object to be a brick of marijuana. Consequently, the seizure of the marijuana, Ziploc bags and scale were incident to a valid search under the plain view doctrine.

(29) Even if the plain view doctrine is not applicable, nevertheless the search of the car was constitutionally permissible per the defendant’s consent.

(30) Consent is an exception to the warrant requirement. The Commonwealth bears the burden of establishing voluntary consent. The first issue is whether the defendant was legally or illegally detained. For the legal detention, the Commonwealth must only prove voluntary consent. However, for an illegal detention of a defendant, the Commonwealth must prove that: (1) the consent was voluntary and (2) the consent was not the product of the illegal detention. Commonwealth v. Reid, 571 Pa. 1, 26, 811 A.2d 530, 544 (2002).

(31) Here, the defendant’s consent followed a lawful detention. Officer Cortazzo had reasonable suspicion to stop the defendant’s car for violation of the Vehicle Code. Furthermore, Officer Cortazzo had reasonable grounds to suspect that the defendant was involved in illegal drug activity because of the odor of marijuana emanating from the vehicle, the defendant’s suspicious actions in a high-crime area and the defendant’s association with an establishment known for illegal drug trafficking. Therefore, the defendant was legally detained pursuant to the traffic violation and for suspicion of illegal drug activity.

(32) Defense counsel argues, citing Freeman and Strickler, that the initial traffic stop concluded and a second investigative detention occurred when Officer Cortazzo reached into the defendant’s pockets. Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000); Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000). However, in each of the cases cited, the arresting officer returned the defendant’s license and concluded the traffic stop before requesting consent to search the vehicle without reasonable suspicion or probable cause. Freeman, 563 Pa. at 85, 90, 757 A.2d at 905, 908; Strickler, 563 Pa. at 53, 757 A.2d at 886-87. Here, in contrast, Officer Cortazzo, under the reasonable belief that drug activity was afoot, conducted his search of the vehicle prior to terminating the lawful traffic stop.

(33) This court also notes that although the seizure of the currency was initially unconstitutional, it did not taint the defendant’s consent. The “illegal seizure” referred to in Reid is not the seizure of evidence, but rather the illegal detention of a person. Id. at 544. Therefore, as already discussed, here, the defendant was legally detained.

(34) Because this court finds that the defendant was legally detained, the Commonwealth need only prove that the consent was voluntary.

(35) “If a person voluntarily consents to a search, evidence found as a result of that search is admissible — The consent, however, must be given freely, specifically, unequivocally and voluntarily. The question whether a consent to a search was in fact voluntary or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Commonwealth v. Washington, 438 Pa. Super. 131, 136-37, 651 A.2d 1127, 1130(1994). (citations omitted) In determining the voluntariness of the consent “[a] reviewing court should evaluate the characteristics of the accused, the interaction between the accused and the police, and assess how a reasonable person in the accused’s shoes would have reacted to that interaction.” Reid, 811 A.2d at 546. (citations omitted)

(36) Officer Cortazzo was the only officer who spoke with the defendant; no official weapons were drawn; and the defendant was not restrained in any way. The interaction occurred on a city street, in a well-populated area. The defendant is 30 years old, of at least normal intelligence and possesses experience in the criminal justice system related to drug trafficking. Moreover, the consent to search the vehicle was not made in response to a request from Officer Cortazzo, but was rather an unsolicited offer to search the vehicle on the part of defendant. Based on a totality of the circumstances, the Commonwealth has met its burden. These factors prove that the consent was voluntary and not the product of duress, coercion or incidentally, the seizure of currency.

(37) Therefore, the defendant’s motion to suppress the $2,890 cash, as well as the contraband seized from his car, must be denied.

(38) The court notes that the defendant’s omnibus pretrial motion for relief seeks suppression of any statements made by the defendant during the course of the investigation, including a statement made by the defendant to Officer Cortazzo, wherein the defendant told Officer Cortazzo that he fled the police because he knew that the bag contained marijuana. However, this evidence was not adduced at the time of the suppression hearing. Therefore the court will not at this time address the motion to suppress the statements without prejudice.

The court will enter the following order:

ORDER

And now, June 16, 2008, in consideration of the defendant’s omnibus pretrial motion for relief it is hereby ordered and decreed that the defendant’s motion to suppress physical evidence is hereby denied. Defendant’s motion to suppress his statements to the police shall be held in abeyance.

      .35 Pa.C.S. §780-113(a)(30).

      .35 Pa.C.S. §780-113(a)(16).

      .35 Pa.C.S. §780-113(a)(32).

      . 75 Pa.C.S. §1501(a).

      . 75 Pa.C.S. §1301(a).