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Commonwealth v. Galendez


September 16, 2009


Appeal from the Judgment of Sentence September 11, 2007 In the Court of Common Pleas of Philadelphia County, Criminal No.CP-51-CR-0002330-2007.

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



¶ 1 Appellant, Harry Galendez, appeals from the judgment of sentence of two to four years' imprisonment entered in the Court of Common Pleas of Philadelphia County following his conviction of multiple violations of the Uniform Firearms Act.*fn1 In this appeal he contests the basis of his arrest, and challenges a condition of his sentence imposed by the trial court. We affirm in part and vacate in part.

¶ 2 At around 7:30 on the evening of October 25, 2006, Philadelphia police officer Steven Johnson and his partner were on routine patrol when they spotted Appellant walking westbound on Westmoreland Street. Officer Johnson recognized Appellant from previous incidents in the area, and abruptly circled back, but Appellant was no longer on the street. Seeing Appellant in a barbershop, the officers entered, and after encountering some resistance, placed him under arrest. A search incident to the arrest revealed a loaded handgun in Appellant's waistband.

¶ 3 Prior to the Gun Court trial, Appellant filed a motion in limine to suppress the gun, arguing that the police had arrested him in violation of his constitutional rights, as they did not possess a warrant and lacked probable cause or reasonable suspicion to arrest and/or stop and frisk him. After a hearing, the court denied the motion.

¶ 4 At the subsequent bench trial, the Commonwealth introduced all non-hearsay testimony from the suppression hearing, as well as evidence that: (1) the gun was operable; (2) Appellant was not licensed to carry a weapon; and (3) because of his felony drug record, Appellant was not permitted to own a gun. Appellant testified in his own defense, alleging that someone in the barbershop threw the gun to the floor after the officers had arrested him. The trial court convicted*fn2 Appellant of persons not to possess firearms,*fn3 firearms not to be carried without a license,*fn4 carrying firearms on the public streets of Philadelphia,*fn5 and possession of a firearm with an altered serial number.*fn6

¶ 5 Having waived a pre-sentence investigation and mental health evaluation, Appellant was sentenced the same day. Although the recommended minimum sentence under the Sentencing Guidelines was thirty-six to forty-eight months' imprisonment, the court sentenced Appellant in the mitigated range, ordering him to serve two to four years' imprisonment followed by one year of reporting probation. The following day, in the absence of both Appellant and his counsel,*fn7 the trial court entered an order adding the following condition to Appellant's probation and parole: "for the duration of [Appellant's] probation and/or parole period, [Appellant] is subject to random searches of his/her residence. The search will be limited to the space occupied by [Appellant]. The searches will be conducted by the agents of the Gun Violence Task Force."*fn8 (Order, 9/12/07).*fn9

¶ 6 Upon learning of the order, Appellant's counsel filed a post-sentence motion on September 20, 2007 challenging the legality of the new condition and the fact that it was imposed in the absence of both Appellant and defense counsel. The trial court denied the motion without a hearing on October 11, 2007. Thereafter, Appellant filed a timely notice of appeal and was ordered to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On February 15, 2008, Appellant requested an extension of time to file the statement upon receipt of the notes of testimony, which were not yet available. Receiving no answer, Appellant filed a timely 1925(b) statement on February 29, 2008, and the trial court issued its opinion on March 7, 2008. Subsequently, Appellant received the notes of testimony and was permitted to file a supplemental statement of errors, which he did on July 16, 2008. In response, the trial court filed a supplemental opinion on July 16, 2008, simply incorporating by reference its previously filed opinion.

¶ 7 On appeal, Appellant raises three issues for our review challenging the trial court's denial of his suppression motion, the addition of the probation/parole condition in his absence, and the validity of that condition. (Appellant's Brief at 3).

¶ 8 Appellant first argues that the trial court erred in denying his motion to suppress because he was arrested without probable cause in violation of his constitutional rights based "on [ ] a supposed warrant for which there was no evidence in the record[.]" (Appellant's Brief at 3).

¶ 9 The standard of review of an appeal from a denial of a motion to suppress is well settled:

Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; 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. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc) (internal quotation marks and citations omitted). "[A]t a suppression hearing the Commonwealth carries the burden of production and persuasion to establish by a preponderance of the evidence that the evidence was properly obtained." Commonwealth v. Stoops, 723 A.2d 184, 186 (Pa. Super. 1998), appeal denied, 747 A.2d 368 (Pa. 1999) (citation and internal quotation marks omitted). See also Pa.R.Crim.P. 581(H) ("The Commonwealth shall have the burden of going forward with the evidence and of establishing that the challenged evidence was not obtained in violation of the defendant's rights.").

¶ 10 The purpose of both the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution is to protect citizens from unreasonable searches and seizures. See Commonwealth v. Smith, 836 A.2d 5, 10 (Pa. 2003) (citations omitted).

In determining whether Appellant was lawfully arrested, we begin with the notion that law enforcement authorities must have a warrant to arrest an individual in a public place unless they have probable cause to believe that 1) a felony has been committed; and 2) the person to be arrested is the felon. A warrant is also required to make an arrest for a misdemeanor, unless the misdemeanor is committed in the presence of the police officer.

Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (citations omitted).

[P]robable cause for a warrantless search exists if the facts and circumstances within the knowledge of the police officer at the time of the arrest are sufficient to justify a person of reasonable caution in believing that suspect has committed or is committing a crime. When we examine a particular situation to determine if probable cause exists, we consider the totality of the circumstances, and do not concentrate on each individual element. We further note that probable cause does not involve certainties, but rather the factual and practical considerations of everyday life on which reasonable and prudent men act.

Commonwealth v. Wright, 867 A.2d 1265, 1267-68 (Pa. Super. 2005), appeal denied, 879 A.2d 783 (Pa. 2005), cert. denied, 546 U.S. 1104 (2006) (citations and internal quotation marks omitted).

¶ 11 At the suppression hearing, Officer Johnson testified that he arrested Appellant because he "knew [Appellant] to have a scofflaw warrant[,]" (N.T., 9/11/07, at 5). Appellant's first claim on appeal rests on the assertion that because the Commonwealth failed to produce the scofflaw warrant referred to by Officer Johnson, it failed to meet its burden of proof. We are not persuaded.

¶ 12 Appellant relies principally for support on our Supreme Court's decision in Commonwealth v. Queen, 639 A.2d 443 (Pa. 1994). There, a uniformed police officer responded to a radio request from detectives for backup. When he arrived at the scene, the detectives informed him only that the defendant resembled a person wanted for robbery. The officer approached the defendant's vehicle and asked him to exit. The defendant complied, and as he stepped out of the car, the officer observed a gun protruding from his shirt. When the defendant failed to produce a license for the weapon, he was arrested, and later sought to suppress the gun. The sole witness offering evidence at the suppression hearing was the arresting officer who knew nothing of the facts relied upon by the detectives.

¶ 13 The trial court denied the motion, and this Court affirmed, but the Pennsylvania Supreme Court reversed, relying on certain decisions of the United States Supreme Court*fn10 for "the proposition that a stop and frisk may be supported by a police radio bulletin only if evidence is offered at the suppression hearing establishing the articulable facts which support the reasonable suspicion." Queen, supra at 445 (emphasis in original). In applying that principle, the Court held that suppression should have been granted because the Commonwealth failed to prove that the detectives had reasonable suspicion to believe the defendant was wanted for robbery. Because such facts were not provided, "the suppression court was required to speculate as to whether [the detectives] had sufficient facts to establish a reasonable suspicion." Id. at 446.

¶ 14 In Commonwealth v. Cotton, 740 A.2d 258 (Pa. Super. 1999), to which Appellant would have us compare his own case, a plainclothes officer driving in an unmarked car observed the defendant running a stop sign. The officer signaled him to pull over, approached the car, and asked that he produce his license, which was then checked through the National Crime Information Center (NCIC) System. Because the computer check revealed that the defendant had two outstanding bench warrants, he was arrested and a search incident to the arrest revealed an unlicensed weapon on his person. Prior to trial, the defendant's motion to suppress was denied. On direct appeal, this court considered whether the evidence should have been suppressed since the Commonwealth failed to produce the warrants. Distinguishing Queen, supra, this Court held that the suppression court did not err. In reaching its decision, the Court emphasized the fact that the officer learned of the warrants through NCIC, which the Court described as "so inherently reliable that such information is, in and of itself, sufficient to form the basis of a finding of probable cause for a police officer who receives such information from an N.C.I.C. report to make an on the spot arrest." Cotton, supra at 264-65. The Court also placed reliance on the fact that after arresting the defendant, the officer conducted "personal verification of the information contained within the [NCIC] report." Id. at 265.

¶ 15 Appellant would have us derive from these cases the rule that a motion to suppress in matters involving an outstanding warrant should be denied only where the Commonwealth proves the validity of the warrant. However, that is not the law: as Pennsylvania jurisprudence makes clear, it is the facts and circumstances within the personal knowledge of the police officer which determine the existence of probable cause. In Queen, supra, the arresting officer had no information other than what the detectives told him, that is, that the appellant resembled a person wanted for robbery. In Cotton, supra, the officer knew nothing of the outstanding bench warrants until he performed the computer check without which he had no cause for arrest, only for a traffic stop. In neither case did the officer have personal knowledge of the appellant or his status, although the officer in Cotton obtained the necessary information. As the suppression hearing testimony demonstrated, the facts in neither case approximate the situation here.

¶ 16 The Commonwealth's evidence in support of the arrest was Officer Johnson's testimony that he knew Appellant was wanted on a scofflaw warrant. (N.T., 9/11/07, at 5). In fact, the officer testified that Appellant "was a regular in the neighborhood that I patrolled. I know him from a [sic] previous incidents. It's been approximately two years that I have known him." (Id.). Further the officer testified that "I knew [Appellant] to have a scofflaw warrant. He was wanted by the detectives in the east division for questioning in a prior carjacking." (Id.).*fn11 No warrant was produced because, as the Commonwealth points out, "Police. . . are not required to carry a library of pending warrants as they patrol their districts." (Commonwealth's Brief at 8 n.2). As the officer noted, at the time of the arrest, police "didn't have to have a warrant for someone who was already wanted in warrant status." (N.T., supra at 7). The trial court observed that the officer "testified that he was aware of the warrant because of his work with the Task Force." (Trial Ct. Op., 3/7/08, at 3). That assertion of familiarity with Appellant and his history was accepted as credible by the trial court, whose finding on this subject is binding. As the Commonwealth demonstrated the "facts and circumstances within the knowledge of the police officer at the time of the arrest," see Wright, supra, it met its burden of proof, and the trial court properly denied Appellant's motion to suppress.

¶ 17 Appellant next argues that the trial court erred in imposing an additional sentencing condition two days after his sentencing hearing and in the absence of himself and his counsel. This issue involves a pure question of law*fn12 with regard to which, "our scope of review is plenary and our standard of review is de novo." Commonwealth v. Leidig, 956 A.2d 399, 403 (Pa. 2008) (citation omitted).

¶ 18 Pennsylvania Rule of Criminal Procedure 602 provides that "[t]he defendant shall be present at every stage of the trial including . . . at the imposition of sentence, except as otherwise provided by this rule. The defendant's absence without cause shall not preclude proceeding with the trial including . . . the imposition of sentence." Pa.R.Crim.P. 602(a).

¶ 19 Germane to this situation, albeit under different circumstances, is our Supreme Court's decision in Commonwealth v. Johnson, 828 A.2d 1009 (Pa. 2003). There the Court held that a defendant was entitled to a new trial where the trial court, over counsel's objection, communicated with the jury outside of the presence of defendant and his counsel. The Court noted that "[a] critical stage in a criminal proceeding is characterized by an opportunity for the exercise of judicial discretion or when certain legal rights may be lost if not exercised at that stage." Id. at 1014 (emphasis added) (citations omitted). Reasoning that "[i]n an adversarial setting, counsel must be present to represent the accused's interests, protect his constitutional rights, and ensure he receives a fair trial[,]" id. at 1014, the Court held that "the trial court's communication with the jury . . . concerned a critical part of the trial implicating a panoply of constitutional rights." Id. The Court found it irrelevant that "[a] sterile transcript may lend some manner of reassurance [the defendant] was not harmed by the content of the instructions, [because] this post hoc consolation cannot substitute for [the defendant's] constitutional right to counsel. Counsel's presence is critical[.]" Id. Having found that the defendant was denied the presence of counsel at a critical stage of the trial, the Court was left to determine "whether the error warrants a new trial." Id. at 1015.

¶ 20 Here, while conceding that "sentencing itself is a 'critical stage' in criminal proceedings, at which both the defendant and his counsel must be present," the Commonwealth nevertheless contends that no relief is due as Appellant was not prejudiced by the error. (Commonwealth's Brief at 13). Even were this true in a sentencing matter, the Johnson Court, noting "that constitutional errors do not require automatic reversal, and may be subject [to] a harmless error analysis[,]" identified "three situations which are so likely to prejudice a defendant that prejudice is presumed," one of which being "a complete denial of counsel at a critical stage of a criminal proceeding." Id. (citations omitted) (emphasis added). Because counsel was denied at a critical stage of the trial, the Court ordered a new trial.

¶ 21 In Gardner v. Florida, 430 U.S. 349 (1977), the United States Supreme Court explained that

[e]ven though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process.

Id. at 358 (citations omitted) (emphasis added). Here, Appellant was denied the presence of counsel during the entry of the order which added conditions to his probation and parole. At this stage, the sentencing judge was certainly exercising "judicial discretion." Johnson, supra at 1014. Thus, it was a critical stage of the proceeding. See id.; Gardner, supra. Because "a complete denial of counsel at a critical stage of a criminal proceeding" requires us to presume prejudice, Johnson, supra at 1015, we vacate the order.

¶ 22 Appellant's final argument is that the sentencing court erred by imposing a condition of probation and parole authorizing random searches of his residence without any level of suspicion of wrongdoing, as such condition is contrary to statutory law and violates his state and federal constitutional protections.*fn13 "The scope and standard of review applied to determine the legality of a sentence are well established. If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." Commonwealth v. Leverette, 911 A.2d 998, 1001 (Pa. Super. 2006) (citations omitted).

¶ 23 We first note that given our disposition of Appellant's second issue, i.e., a sentence or aspect thereof imposed in the absence of counsel at a crucial stage in the proceedings, we are compelled to resolve Appellant's third claim in his favor. Because the same result would obtain had counsel/Appellant been present, we will address the issue, at least briefly.

¶ 24 There are two aspects to Appellant's claim, as conditions incident to probation and those incident to parole are handled somewhat differently. Initially, we must address the Commonwealth's contention that Appellant's argument is not ripe for review inasmuch it challenges the order's condition as it relates to parole.

¶ 25 The Pennsylvania Probation and Parole Act grants the parole board "exclusive power to parole and reparole . . . all persons heretofore or hereafter sentenced by any court in this Commonwealth to imprisonment in any prison or penal institution thereof[.]" 61 P.S. § 331.17(a). The statute goes on to explain that "[n]othing herein contained shall prevent a court of this Commonwealth from paroling any person sentenced by it for a maximum period of less than two years[.]" 61 P.S. § 331.17(b). Here, Appellant is serving a prison sentence of two to four years, with a one year probationary tail. This Court has explained that "[w]hen the aggregated term of a sentence is for two years or more, exclusive authority to parole for such a sentence is vested in the State Board of Probation and Parole." Commonwealth v. Lee, 876 A.2d 408, 412 (Pa. Super. 2005) (citation omitted). Thus a sentencing court's proposed terms "respecting the parole or terms of parole . . . shall be advisory only, and no order in respect thereto made or attempted to be made as part of a sentence shall be binding on the board[.]" 61 P.S. § 331.18; see also Commonwealth v. Smith, 567 A.2d 1070, 1073 (Pa. Super. 1989), appeal denied, 585 A.2d 468 (Pa. 1990). Accordingly, the condition imposed by the court is not only a nullity because of the conditions under which it was imposed, but also because the trial court had no authority to impose it. See also Commonwealth v. Mears, 972 A.2d 1210 (Pa. Super. 2009).

¶ 26 Further, the Sentencing Code provides that in imposing an order of probation,

The court may as a condition of its order require the defendant:

(7) To have in his possession no firearm or other dangerous weapon unless granted written permission.

(13) To satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience.

42 Pa.C.S.A. § 9754(c).

These enumerated specific conditions of probation authorized by § 9754 can all be classified as behavioral restrictions or conditions. They relate to the manner in which the probationer is either restricted from acting or is directed to act. That the specific conditions of probation authorized in § 9754, including subsection (c)(7), are behavioral conditions, directed at rehabilitation of a defendant, and are not punitive, has been emphasized by the Supreme Court.

[C]onditions of probation, though significant restrictions on the offender's freedom, are primarily aimed at effecting, as a constructive alternative to imprisonment, his rehabilitation and reintegration into society as a law-abiding citizen; courts therefore are traditionally and properly invested with a broader measure of discretion in fashioning conditions of probation appropriate to the circumstances of the individual case.

Section 9754(c)(7), specifically relied upon by the Commonwealth, only authorizes the restriction of possession of firearms or deadly weapons; it does not permit forfeiture to accomplish the restriction on possession of firearms. Therefore, it too, relates solely to the behavioral conditions imposed on the defendant. Section 9754(c)(13), also expressly relied upon by the Commonwealth, does not authorize the forfeiture as a condition of probation in this case.

Commonwealth v. Crosby, 568 A.2d 233, 235-36 (Pa. Super. 1990) (citations omitted).

¶ 27 The Sentencing Code provides that "[c]county probation and parole officers . . . are authorized to search the person and property of county offenders in accordance with the provisions of this section." 61 P.S. § 331.27b(b). The statute provides restrictions on the authority of probation officers to conduct searches:

(d)(1) A personal search of an offender may be conducted by any officer:

(i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision;

(2) A property search may be conducted by any officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.

61 P.S. § 331.27b(d)(1)(i), (2) (emphasis added). With regard to "reasonable suspicion," the statute provides that "[t]he existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision."

61 P.S. § 331.27b(d)(6).

¶ 28 The Sentencing Code repeatedly emphasizes that probation officers can conduct warrantless searches only if they possess "reasonable suspicion" of wrongdoing. The order entered in the instant case completely disregards the legislature's clear mandate of requiring at least a showing of reasonable suspicion. Thus, while we disagree with Appellant's argument that the order does not constitute a "behavioral restriction," we find that the order is not authorized by the Sentencing Code.

¶ 29 In sum, the order imposing the condition, whether applied to probation or parole, is contrary to statutory authority for both, was thus improperly entered, and must be vacated.*fn14 Accordingly, we need not reach the constitutional issue of unreasonable search and seizure raised by Appellant with respect to the sentencing condition.

¶ 30 Judgment of sentence affirmed in part and vacated in part. Jurisdiction relinquished.

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