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06/17/97 COMMONWEALTH PENNSYLVANIA v. LUIS

June 17, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
LUIS RODRIGUEZ, APPELLANT



Appeal from the JUDGMENT OF SENTENCE October 8, 1996 In the Court of Common Pleas, Criminal Division Delaware County, No. 5628 of 1995. Before CLOUSE, J.

Before: Cavanaugh, Tamilia And Olszewski, JJ. Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Cavanaugh

OPINION BY CAVANAUGH, J.:

FILED: JUN 17 1997

Luis Rodriguez appeals from the judgment of sentence of the Court of Common Pleas of Delaware County imposed following his convictions of possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. We affirm.

On December 24, 1995, a criminal complaint was issued, charging appellant, Rodriguez, with the following: criminal conspiracy; resisting arrest or other law enforcement; knowingly or intentionally possessing a controlled substance; manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance; and possession of drug paraphernalia. The charges arose out of an incident which occurred when, on December 23, 1995, appellant was a front seat passenger in a vehicle stopped for a traffic violation and an open cardboard box containing several zip lock bags filled with marijuana was found on the front passenger floor.

A hearing was held on May 7, 1996 on appellant's motion to suppress the marijuana, and on May 29, 1996, said motion was denied. A jury trial was held on September 17 and 18, 1996, *fn1 and appellant was found guilty of possession of a controlled substance with intent to deliver, possession of drug paraphernalia and criminal conspiracy. *fn2 The trial court sentenced appellant on October 8, 1996 to a minimum of two years to a maximum of four years for possession of a controlled substance with intent to deliver; a minimum of six months to a maximum of twelve months for criminal conspiracy; and one year probation for possession of drug paraphernalia, with the sentences to run concurrently.

Rodriguez raises the following issues on appeal:

1. Whether the Trial Court erred in not granting the Appellant's Motion to Suppress Evidence where the police officer violated the Fourth Amendment of the U.S. Constitution, Article I, Section 8 of the Pennsylvania Constitution and the law articulated by the Pennsylvania Supreme Court in Commonwealth v. Pollard, 450 Pa. 138, 299 A.2d 233 (1973), when the officer seized the passengers in a motor vehicle stopped for a traffic violation only, ordered them out of the vehicle and subjected them to a pat-down search, thereby causing a box of marijuana in the vehicle to come into the view of the police officer, where the police officer possessed no individualized or particularized probable cause or reasonable suspicion to believe that the occupants of the vehicle were engaged in criminal activity and where the police officer had no safety concerns, fears or beliefs that the occupants of the vehicle possessed weapons or that the police officers on the scene were in any kind of danger.

2. Whether the Trial Court erred in not severing the trial of the Appellant, Luis Rodriguez, from his Co-Defendants, where he sought a jury trial and they sought non-jury trials.

3. Whether the Appellant was prejudiced by the Trial Court dismissing his Co-Defendants from the trial and defense counsel table at the close of the Commonwealth's case, only leaving Appellant at the defense table half way through the trial of all Defendants to face the jury.

The facts of this case leading up to appellant's arrest and conviction are as follows:

On December 23, 1995, at approximately 7:00 p.m., appellant was the front seat passenger in a vehicle driven by Arturo Camacho. The vehicle was stopped by Police Officer Peter Lunn after he observed it failing to stop at a red light. The officer was in the process of writing a warning when he noticed that the registration information provided by the driver, Camacho, did not correspond with the tags on the vehicle. *fn3 Officer Lunn received assistance from Officer Jason Mark and prepared to issue citations and have the car towed because of the improper registration. Officer Mark, on instruction from Officer Lunn, directed the two rear passengers to exit the vehicle and they complied. As appellant got out of the front passenger seat, he was given a quick pat-down for weapons and directed to walk towards Officer Lunn. Officer Mark then moved closer to look in the vehicle and saw a coffee maker box in plain view. The box was open and a clear plastic bag was bulging out of it containing what the officer recognized to be marijuana. As Officer Mark looked back towards Officer Lunn, appellant began to run away. Officer Mark gave chase along with other officers and appellant was apprehended approximately five to six minutes later.

Prior to trial, appellant filed a motion to suppress the marijuana evidence, claiming that it had been observed and seized only after appellant had been unlawfully required to exit the vehicle. Appellant raises a Fourth Amendment claim and also cites Article I, Section 8, of the Pennsylvania Constitution as his basis for arguing in favor of suppressing the evidence. The trial court's denial of appellant's motion for suppression is the first Initially, we ...


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