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Commonwealth v. Galendez

September 16, 2009

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
HARRY GALENDEZ APPELLANT



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.

BEFORE: KLEIN, PANELLA and KELLY, JJ.

OPINION

¶ 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 ...


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