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08/26/97 COMMONWEALTH PENNSYLVANIA v. EDGAR STROUD

August 26, 1997

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
EDGAR STROUD, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 9504-0047. Before GEROFF, J.

Before: Beck and Hudock, JJ., and Cercone, P. J. E. Opinion BY Hudock, J.

The opinion of the court was delivered by: Hudock

OPINION BY HUDOCK, J.:

Filed August 26, 1997

In this appeal the Commonwealth asserts the trial court erred in granting Appellee's motion to suppress evidence. *fn1 We affirm in part and reverse and remand in part.

The standard of review employed by an appellate court when reviewing the grant of a suppression motion has been summarized by our Supreme Court:

We begin by noting that where a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible. Pa.R.Crim.P. 323(h). See Commonwealth v. Iannaccio, 505 Pa. 414, 480 A.2d 966 (1984), cert. denied, 474 U.S. 830, 106 S. Ct. 96, 88 L. Ed. 2d 78 (1985). In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. Commonwealth v. Monarch, 510 Pa. 138, 147, 507 A.2d 74, 78 (1986). If so, we are bound by those findings. Commonwealth v. James, 506 Pa. 526, 533, 486 A.2d 376, 379 (1985). Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. James, 506 Pa. at 532-33, 486 A.2d at 379; Commonwealth v. Hamlin, 503 Pa. 210, 216, 469 A.2d 137, 139 (1983).

Commonwealth v. DeWitt, 530 Pa. 299, 302, 608 A.2d 1030, 1031 (1992) (footnote omitted). Moreover, if the evidence when so viewed supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal Conclusions drawn from those findings. Commonwealth v. Reddix, 355 Pa. Super. 514, 518, 513 A.2d 1041, 1042 (1986).

Based upon the testimony presented at the suppression hearing, the court made factual findings which may be summarized as follows: On March 15, 1995, at about 7:20 p.m., Police Officer Joseph Santomieri, as a result of personal knowledge and information from neighbors that drugs were being sold in the 5600 block of Nelson Street, was conducting a surveillance of the block from an alley. During the course of this surveillance, Officer Santomieri observed Appellee, through binoculars at a distance of approximately forty feet. Appellee was standing on the east side of Nelson Street engaged in a conversation with two males who were standing on the opposite side of the street. A third male approached Appellee and engaged him in a conversation. The male handed Appellee U.S. currency, and Appellee took an object from his right shoe and handed it to the other male, who then turned and walked away. Officer Santomieri radioed his observations to his back-up team, which included Officers Robert Stott and Michael Kopecki.

A minute later Appellee went to a blue Oldsmobile which was parked on the west side of Nelson Street, opened the trunk with a key, and removed a brown paper bag. He took a clear plastic bag from the paper bag and removed from it objects which he put in his right shoe. He returned the plastic bag to the brown paper bag, placed the brown bag back into the trunk, closed the lid, remained standing in the street, and resumed his conversation with the males with whom he had previously been talking. About one minute later, another male approached Appellee, handed him currency and received from Appellee an object which he had removed from his shoe. Officer Santomieri radioed his back-up concerning what he had observed and asked them to come to his location.

Officer Santomieri could not identify the objects that Appellee had removed from his shoe and had handed to the two males or the objects which he removed from the plastic bag. When asked to describe the objects with as much detail as he could, he responded that the objects were so small that Appellee held them between his fingers and that Appellee's fingers were approximately a quarter of an inch apart.

After the second exchange, Appellee began walking north on Nelson Street. Officer Robert Stott, who was driving to Officer Santomieri's location, arrested Appellee and brought him back to Officer Santomieri, who identified him. Appellee was placed inside Officer Stott's vehicle. Officer Kopecki went to the Oldsmobile and returned with the brown paper bag. At the time of the hearing, Officer Santomieri had been a police officer for 23 1/2 years, and the last 8 1/2 years as a narcotics officer. Officer Santomieri testified that he knew the area to be a "high drug location" and that he believed that he had observed two drug transactions and, based on his experience, he believed that the small objects which were being passed were drug vials. N. T., 3/26/96, at 17.

Officer Stott testified that Officer Santomieri had radioed information to him concerning the alleged drug sales. He testified that he arrested Appellee who had three drug vials in his right shoe. Officer Kopecki's testimony was submitted by stipulation: Officer Santomieri was present when Officer Stott arrested Appellee and recovered the three vials and keys to the Oldsmobile. As a result of the information he had received from Officer Santomieri, he opened the trunk with the keys and looked behind the left rear taillight. He found a brown paper bag which contained two clear plastic bags. One of the bags contained forty clear plastic vials containing an off-white chunky substance. The other plastic bag contained forty vials containing a similar substance.

Appellee's cousin, Michael Keith Green, testified to a scenario which was completely at odds with the version of the three officers. The suppression court did not find his ...


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