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Commonwealth v. Gonzalez

July 17, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
JOSE GONZALEZ, APPELLANT



Appeal from the Judgment of Sentence of March 19, 2008, in the Court of Common Pleas of Lebanon County, Criminal Division, at No. CP-38-CR-0001010-2007.

The opinion of the court was delivered by: Bowes, J.

BEFORE: BOWES, SHOGAN and KELLY, JJ.

OPINION

¶ 1 Appellant, Jose Gonzalez, appeals from the judgment of sentence of three to six years incarceration imposed on March 19, 2008, following his conviction at a bench trial of possession of cocaine, possession of heroin, possession of cocaine with intent to deliver, and possession of drug paraphernalia. We affirm.

¶ 2 The trial court aptly summarized the facts of the case as follows:

On April 12, 2007, [Lebanon City Police] Officer Brett Fisher traveled to an apartment building at 221 North Eighth Street. He was looking for Ismael Oquendo, who was reported to be a tenant of Room 14. Officer Fisher knocked on Room 14, but no one answered.

While Officer Fisher was standing in the hallway adjacent to Room 14, the door to Room 15 opened. The Defendant, Jose Gonzalez, appeared at the doorway. Officer Fisher engaged the Defendant in conversation about the whereabouts of Mr. Oquendo. During this conversation, Officer Fisher saw a sandwich bag with a "twisted" end on the bed within the Defendant's room. Based upon his experience, Officer Fisher was aware that sandwich bags twisted in such a manner often contained controlled substances.

Officer Fisher asked the Defendant: "Do you mind if we come in? We want to talk with you about your neighbor." The Defendant responded "sure". At this point, Officer Fisher and his partner entered the Defendant's apartment and spoke with the Defendant in a calm and non-threatening tone of voice.

During his conversation with the Defendant, Officer Fisher asked if the Defendant had drugs and cash. The Defendant responded that he did. Almost immediately, and without any prompting on the part of Officer Fisher, the Defendant pulled a wad of cash and crack cocaine out of his pockets and presented the items to Officer Fisher. Officer Fisher asked the Defendant if he had anything else. The Defendant volunteered that there were more drugs inside the dresser. Once again, the Defendant voluntarily retrieved and presented additional drugs to Officer Fisher. He then went into a closet and retrieved yet another bag of cocaine in order to present that bag to Officer Fisher.

At no time during this encounter did either Officer Fisher or his partner display their handguns or any other weapon. At no time did Officer Fisher or his partner place their hands on the Defendant or physically restrain him in any way. At no time did Officer Fisher or his partner threaten the Defendant or interrogate him in an accusatory manner. In fact, Officer Fisher utilized a calm and conversational tone of voice throughout the encounter.

Suppression Court Opinion, 10/24/07, at 2-3.

¶ 3 Appellant filed a pretrial motion to suppress on August 16, 2007, which the trial court denied following a hearing on August 30, 2007. Appellant proceeded to a bench trial and was convicted of the aforementioned offenses on January 28, 2008. On March 19, 2008, the trial court imposed a sentence of three to six years imprisonment. This appeal followed, wherein Appellant argues that the trial court erred in denying his pretrial suppression motion.

¶ 4 When presented with a challenge to the denial of a motion to suppress evidence, we are limited to determining whether the trial court's factual findings are supported by the record and whether the legal conclusions drawn from those findings are correct. See Commonwealth v. Williams, 941 A.2d 14 (Pa.Super. 2008) (en banc). In conducting our review, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Graham, 949 A.2d 939, 941-42 (Pa.Super. 2008), appeal granted on other grounds, 963 A.2d 901 (Pa. 2008). If the trial court's factual findings are supported by the record, we are bound by those facts; however, we may reverse the suppression court when it draws erroneous legal conclusions from those factual findings. Commonwealth v. Booze, 953 A.2d 1263 (Pa.Super. 2008); In re V.H., 788 A.2d 976 (Pa.Super. 2001).

¶ 5 At the suppression hearing in this case, the only evidence presented was that of Officer Fisher, who testified for the Commonwealth. As Officer Fisher's testimony was uncontradicted, no relevant facts are in dispute. To the extent the issue presented is purely a question of law, our standard of review is de novo. Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008) (citing Commonwealth v. Beaman, 880 A.2d 578 (Pa. 2005)).

¶ 6 In the instant case, Appellant contends that the drugs and drug paraphernalia found in his room and his statements to police should have been suppressed because Appellant "was pressured, or otherwise coerced, into consenting to a search of his room and his person." Appellant's brief at 9, 18. He avers that police entered his room illegally, maintaining that he was subjected to a custodial interrogation or investigative detention without reasonable suspicion and without Miranda*fn1 warnings.

¶ 7 The trial court rejected this claim and concluded that the entire interaction between Appellant and Officer Fisher was a mere encounter. The uncontradicted testimony of Officer Fisher established that on April 12, 2007, Officer Fisher and his partner, Lebanon City Police Officer Cory Gebhard, both of whom were in full uniform displaying their badges, knocked on the door of room 14 at 221 North 8th Street during a follow-up investigation of Ismael Oquendo. N.T., 8/30/07, at 4-6. Appellant, the occupant of adjacent room 15, opened his door and stood there while his guest exited and walked down the hall. Id. As Appellant stood in the open doorway, Officer Fisher could see ninety percent of the room and observed a "plastic sandwich bag that was twisted... in a long manner and then it was like in a squiggly." Id. at 7. Officer Fisher engaged Appellant in conversation about Mr. Oquendo, ultimately asking Appellant if the officers could "step inside the room because I didn't really want to talk about the person in Room 14 out in the hallway." Id. at 8. Appellant "said we could." Id. Both officers entered Appellant's room; Officer Fisher stood inside the room, and Officer Gebhard stood behind him. Id. at 8, 18, 26. Officer Fisher described Officer Gebhard's position as "standing in the open doorway just like right inside the threshold." Id. at 10.*fn2

¶ 8 When Officer Fisher stepped inside the room, he could see the portion of the room that had not been visible from the hallway. Id. at 9. In addition to the twisted baggie on the bed, he observed a calculator and razor blade on a tabletop. Officer Fisher noted, "In the past I've seen similar items in houses that are involved in drug dealing," and "when I combined all three [items] from my past experience[,] I asked him if he had any large amounts of cash on him or drugs." Id. at 9, 10. Appellant removed "a large folded wad of cash and a single orange bag of what [the officer] believed to be crack cocaine." Id. Officer Fisher testified that Appellant "produced it on his own." Id. at 10, 11. Upon pointed questioning by the suppression court, the officer continued, "He just responded... that he did have that stuff and then he took it out of his pockets." Id. at 11.

ΒΆ 9 Based upon his past experience, Officer Fisher concluded that "the large amount of money and that little tiny bag of crack and the calculator and razor blade" indicated "there was probably more drugs somewhere in the apartment." Id. at 11. Therefore, the officer remarked to Appellant, "[T]hat's a lot of cash, that's just a little bit of drugs[,] it doesn't make sense to me that that's all you have. Do you have more drugs?" Id. at 11-12. Appellant "hung his head in shame... then indicated that there was more in the dresser." Id. at 12. The officer "looked over [at] the dresser.... There was... what appeared to be a similar plastic bag, the top portion of it hanging out the top." Id. at 11-12. ...


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