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COMMONWEALTH PENNSYLVANIA v. GLORIA RODRIGUEZ (07/18/88)

submitted: July 18, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GLORIA RODRIGUEZ, APPELLANT



Appeal from Judgment of Sentence July 17, 1987, in the Court of Common Pleas of York County, Criminal No. 2537 CA 1985.

COUNSEL

Richard K. Renn, York, for appellant.

William H. Graff, Jr., Assistant District Attorney, York, for Com., appellee.

Cirillo, President Judge, and Olszewski and Montemuro, JJ.

Author: Olszewski

[ 379 Pa. Super. Page 26]

Appellant, Gloria Rodriguez, takes this appeal from the July 17, 1987, judgment of sentence of the Court of Common Pleas of York County. Appellant was convicted of possession of drugs with intent to deliver. Pa.Stat.Ann.Tit. 35 ยง 780-113(a)(30) (Purdon 1986). Appellant was sentenced to a period of imprisonment of not less than one year and not more than two years.

On appeal, Appellant raises three issues for our consideration: (1) whether the trial court erred in refusing to suppress the evidence seized in a search of her automobile, (2) whether the denial of Appellant's request for a new trial because trial counsel was ineffective was proper, and (3) whether the evidence was sufficient to sustain the verdict of the lower court on the charge of possession of drugs with intent to deliver. We will discuss these issues seriatim.

On November 15, 1985, police received information from an informant that appellant and her husband were delivering cocaine to subjects in the York area and to the mobile home of Stephen Conn. Police observed appellant's vehicle in York on that day and were later advised by the informant that appellant and her husband had already delivered drugs to Conn.

A second informant told police that appellant and her husband were transporting cocaine to the York area and, more specifically, that on November 23, 1985, they were in the east end of York. Police followed up on this information and observed appellant's vehicle in York City.

On November 27, 1985, informant # 2 informed police that appellant and her husband would be coming to York to deliver drugs. Police then observed appellant's vehicle on Route I-83 entering York, but lost sight of it before it entered the city. Appellant's vehicle was later discovered by the police parked outside of the residence of Stephen Conn.

[ 379 Pa. Super. Page 27]

Officers observed appellant's vehicle exiting the trailer court where Stephen Conn resided. Police pursued and stopped the vehicle on Route 234. After a search of the vehicle revealed cocaine and a large sum of money, appellant and her husband were arrested. The police then immediately returned to the Conn residence and found cocaine and other drug-related paraphernalia. Appellant's vehicle was later secured, and an inventory search disclosed additional cocaine and heroin.

Next we must examine the procedural posture in which we find this case. We now set out the sequence of events in pertinent part. On November 27, 1985, appellant was charged by complaint with possession of drugs with intent to deliver and criminal conspiracy. A pre-trial suppression hearing was held at which motions to suppress were denied in an opinion dated February 20, 1987. The case was then tried and a guilty verdict was entered on April 20, 1987. On June 3, 1987, post-trial motions on the suppression issue were denied. Appellant was sentenced on July 17, 1987. An appeal was filed on August 12, 1987, by appellant through previous counsel; but as no briefs were ever submitted, the appeal was dismissed on December 10, 1987. Appellant filed a PCHA petition on February 9, 1988, setting forth the above three issues. The PCHA order of March 7, 1988, permitted appellant to file this appeal nunc pro tunc.

We now turn to appellant's first contention: failure of the trial court to suppress evidence. Our initial task in reviewing the ruling of a suppression court is to determine whether the factual findings are supported by the record. We must then determine the legitimacy of the inferences and legal conclusions drawn from those facts. Since the trial court found for the prosecution on this motion, we will consider only the evidence of the prosecution and so much of the evidence for the defense which, as fairly read in the context of the record as a whole, remains uncontradicted. Commonwealth v. Lark, 505 Pa. 126, 129, 477 A.2d 857, 859 (1984) (citations omitted); Commonwealth v. Monarch,

[ 379 Pa. Super. Page 28510]

Pa. 138, 146-47, 507 A.2d 74, 78 (1986) (citations omitted).

Basic constitutional jurisprudence holds that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are pre se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576, 585 (1967) (footnotes omitted). Both United States and Pennsylvania constitutional law permit the warrantless search and seizure of automobiles if based upon probable cause and accompanied by exigent circumstances. Coolidge v. New Hampshire, 403 U.S. 443, 454, 91 S.Ct. 2022, 2031, 29 L.Ed.2d 564, 575-76 (1971); Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Commonwealth v. Milyak, 508 Pa. 2, 493 A.2d 1346 (1985). This exception was created based on the inherent mobility of vehicles, with the consequent practical problems in obtaining a warrant prior to searching and on the "diminished expectation of privacy which is accorded automobiles because of their open construction, their function and their subjection to a myriad of state regulations." Milyak, 508 Pa. ...


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