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Commonwealth v. Cruz

Superior Court of Pennsylvania

July 18, 2017


         Appeal from the Judgment of Sentence July 19, 2016 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0000702-2015

          BEFORE: OTT, DUBOW, JJ., and STEVENS, P.J.E. [*]


          STEVENS, P.J.E.

         Appellant, John Antonio Cruz, appeals from the judgment of sentence entered in the Court of Common Pleas of Lehigh County following his conviction by a jury on the charges of receiving stolen property, terroristic threats, and simple assault, as well as his conviction by the trial court on the charge of person not to possess a firearm.[1] Appellant's sole claim on appeal is that the suppression court erred in denying his motion to suppress the handgun seized by the police during the warrantless search of a bathroom located in a barber shop where Appellant was employed. We affirm.

         The relevant facts and procedural history are as follows: Appellant was arrested, and on June 22, 2015, he filed a counseled pre-trial motion seeking to suppress the handgun seized by the police during the warrantless search of a barber shop bathroom. Specifically, Appellant contended the police did not have probable cause for the search, there were no exigent circumstances, and the search was not a routine administrative inspection of the business.

         On October 20, 2015, the matter proceeded to a suppression hearing at which the Commonwealth argued Appellant did not have a legitimate, reasonable expectation of privacy in the area from which the evidence was seized. Appellant testified on his own behalf, and the Commonwealth presented the testimony of Police Officer Dale Stokes, Police Officer John Hill, and Sergeant Matt Karnish.

         Specifically, Appellant testified that, on February 4, 2015, he was the manager of the Sports Cuts Barber Shop ("Sports Cuts"), which was located on Union Boulevard in Allentown and owned by Ruben Rodriguez. N.T., 10/20/15, at 7-8. Appellant described Sports Cuts as a "very large[, ]" busy shop with two entrances, a smoke room, a lounge, a storage room, and a garage. Id. at 9. He testified that, on the left side in the rear of the lounge, there was an office, which was restricted to employees only. Id. at 10. Appellant further testified that, in an L-shaped hallway, Sports Cuts had two separate single occupancy bathrooms, both of which were open to the public.[2] Id. at 10-11, 17.

         Police Officer Dale Stokes testified that, on February 4, 2015, at 4:17 p.m., he received a radio call to respond to a barber shop located on Hanover Avenue in Allentown, the Royal Cuts Barber Shop ("Royal Cuts"), [3]for threats involving a handgun. Id. at 26, 33. Upon arrival at 4:22 p.m., David Purcell, who was an employee of Royal Cuts, informed Officer Stokes that he had been sitting in a chair at Royal Cuts with a hot towel over his face when he felt an item being pressed against his forehead. Id. at 27, 33. When Mr. Purcell removed the towel, he discovered Appellant, a person with whom he used to work at Sports Cuts, pressing a handgun to his forehead.[4]Id. at 27-28.

         Officer Stokes indicated that, in response to the information provided to him by Mr. Purcell, he radioed for back-up, and several uniformed officers joined Officer Stokes and his partner, both of whom were in uniform, at a Sunoco gas station, which was "[a] couple [of] blocks" from Royal Cuts. Id. at 28, 34, 39. From there, the police went to Sports Cuts with the intent of finding Appellant; they arrived at Sports Cuts at 4:57 p.m. Id. at 28, 34, 40. The officers surrounded the building with a group of officers entering through the front unlocked door. Id. at 29. Officer Stokes testified no one told them to leave, and there were customers in the shop. Id. While some officers proceeded to the hallway where the bathrooms were located, Officer Stokes proceeded to the back of Sports Cuts, where someone sitting on a sofa told him that no one else was in the back of the shop. Id. Officer Stokes then proceeded to the hallway and observed Sergeant Karnish knocking on one of the bathroom's doors. Id. at 30.

         Sergeant Karnish asked the occupant to come out of the bathroom, and a male voice indicated he would be "out in a moment." Id. at 31. Officer Stokes heard "rustling inside the bathroom, " a couple of flushes of the toilet, and then a loud "thump" coming from the ceiling tiles[5] of the hallway and bathroom area, resulting in Officer Hill, who was standing at the end of the hallway, becoming startled. Id. at 31, 47. Eventually, the male, later identified as Appellant, exited the bathroom of his own volition, and Officer Stokes handcuffed him. Id. at 32. Officer Stokes testified that he looked into the bathroom and observed that one of the ceiling tiles was "off the tracks and hanging down." Id. at 49. He admitted that the police did not secure a warrant prior to entering Sports Cuts. Id. at 32, 36, 49.

         Police Officer John Hill confirmed that he met Officer Stokes and other uniformed officers at the Sunoco gas station. Id. at 58. He clarified that, upon arrival at Sports Cuts, two officers entered Sports Cuts through the unlocked front door, while he and another officer entered through an unlocked side door. Id. at 58, 64. The police "looked around throughout the business" in an attempt to locate Appellant, and during the search, Officer Hill discovered one of the bathrooms was occupied with the door locked. Id. at 59. He could hear someone moving around inside of the bathroom, and he confirmed that Sergeant Karnish knocked on the door, to which the person inside replied for him "to hold on." Id.

         Officer Hill testified that, while the police waited for the person inside of the bathroom to exit, he "started hearing movement in the ceiling tiles above [him]." Id. at 60. Following the sound of the noise, he went into the separate unoccupied bathroom, and within ten seconds, Officer Hill heard "a loud clunk and the ceiling tiles right above [his] head dropped about an inch." Id. Officer Hill testified that, without standing on anything, he "put [his] hand on the tile to see what it was that was coming through. And as soon as [he] put even the lightest touch on th[e] tile the gun fell out[, ]" landing on either the toilet or floor. Id. Appellant then exited the occupied bathroom. Id.

         Sergeant Matt Karnish testified that he entered Sports Cuts via the front door and the shop was "clearly open for business." Id. at 80. He indicated that barbers were performing haircuts on customers, and other customers were waiting in the lounge area. Id. Sergeant Karnish spoke to one of the employees in the front, who advised him that Appellant was in the rear portion of the building. Id. at 80, 93. Sergeant Karnish "and other officers went through the building and [they] located a locked bathroom door[.]" Id. at 80. Sergeant Karnish confirmed that he knocked on the bathroom door and had "limited verbal interaction [with Appellant] with the door being closed." Id. at 80, 87.

         While Sergeant Karnish waited for Appellant to exit the bathroom, he "could hear a loud thud" coming from above his head in the ceiling. Id. at 81-82. He then "heard a loud metallic thud" and observed as the handgun fell through the drop ceiling in the separate unoccupied bathroom. Id. at 83. He clarified that he observed Officer Hill put his hand up in an attempt to hold the tile to prevent the handgun, which was pushing through the tile, from falling and potentially discharging. Id. at 101.

         Sergeant Karnish testified that, shortly after the handgun fell out of the ceiling and Appellant was handcuffed, Mr. Rodriguez, who identified himself as the owner of Sports Cuts, arrived on the premises.[6] Id. at 84-85, 103. Sergeant Karnish indicated that, although the premises was "a public place open for business[, ]...[he] wanted to be cautious on how [he] did things[.]" Id. at 84. Accordingly, Sergeant Karnish asked Mr. Rodriguez for consent to search the two bathrooms, including seizing the handgun which was lying on the bathroom floor, and Mr. Rodriguez agreed. Id. at 84-85, 103-04.

         Appellant re-took the stand, and he testified that, on the day of the incident, Mr. Rodriguez was on the premises in the morning; however, he left the premises with Appellant "in charge of the establishment." Id. at 108. Appellant testified that he arrived at Sports Cut at 7:00 a.m., where he remained until he left for lunch at 1:30 p.m. Id. at 114. He returned from lunch at 2:30 p.m. and remained at the shop until the police arrested ...

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