from the Judgment of Sentence Entered July 8, 2015 In the
Court of Common Pleas of Philadelphia County Criminal
Division at Nos: CP-51-CR-0011169-2013,
BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.
Eric Torres, appeals from the July 8, 2015 judgment of
sentence imposing an aggregate term of 66 to 132 years'
imprisonment for assault of law enforcement officer,
aggravated assault, simple assault, persons not to possess
firearms, firearms not to be carried without a license,
carrying firearms on public streets in Philadelphia,
possessing instruments of crime ("PIC"), possession
of a controlled substance with intent to deliver
("PWID"), and possession of drug
paraphernalia. We vacate and remand for a new trial.
trial court set forth the following facts:
On August 13, 2013, Officer William Barr of the Philadelphia
Police Department was assigned to street patrol in a marked
vehicle in the area of Fifth Street and Allegheny Avenue.
Just before noon, Officer Barr initiated a traffic stop on a
BMW, Pennsylvania license plate number JJA-951, travelling
eastbound on Allegheny. Officer Barr had been traveling
behind the vehicle and initiated the stop when he saw the
middle brake light was not functioning. The vehicle pulled
over on Fifth Street, just North of Allegheny. Officer Barr
exited his patrol car and approached the vehicle, which was
being driven by Appellant. As he approached, he noticed
Appellant' shoulders moving back and forth.
Officer Barr explained that he had stopped Appellant for the
brake light, as well as his inspection stickers, which were
from New York but placed on a Pennsylvania license plate. He
asked for Appellant's license and registration. Officer
Barr testified that Appellant produced the documents right
away, but that he appeared nervous and was looking around.
Officer Barr asked Appellant if there was anything in the
vehicle he should know about, but Appellant did not answer.
This made Officer Barr concerned for his safety, and he
opened the door and asked Appellant to step out of the
vehicle. Appellant did not exit the vehicle; instead he
closed the door and drove away. Officer Barr returned to his
own vehicle to follow him. He still had Appellant's
license and registration in his hand at this time.
Officer Barr followed Appellant on Fifth Street for about
five or six blocks. Officer Barr relayed information about
Appellant's flight over the radio. Sergeant
Zimmerman then directed Officer Barr to
terminate his pursuit due to safety concerns, as both
vehicles were traveling at high speeds in a residential area.
Within a few minutes, Sergeant Zimmerman met Officer Barr at
Fifth and Sedgley Avenue to sign his log. At about this time,
Officer Barr also received information over the radio about a
crash and a disturbance at a grocery store at Fourth and
Annsbury Streets. Officer Barr then traveled to the grocery
Officer Roberto Luciano was also on duty in the same
neighborhood on August 13 and received the call about a
vehicle that had fled a stop. Officer Luciano traveled to
Second and Erie to attempt to intercept the vehicle. While
waiting at that intersection, a 911 call reported a similar
vehicle involved in an accident at Second and Bristol
streets. Upon arriving at the scene, Officer Luciano observed
a light-colored BMW crashed against a fence and building. The
building was owned by the Richard Burns Company, a
construction material recycling facility. Allen Burns, the
owner of the company, was in the parking lot when he heard a
screeching and "bang" of the car hitting the
building. Mr. Burns saw the man in the driver's seat,
later identified as Appellant, push the airbag away and climb
out of the driver's side window. Mr. Burns watched
Appellant take a step or two, then turn back and reach inside
the vehicle. He then began running from the car as he was
putting something dark in his pocket. When Officer Luciano
arrived on the scene soon after, he reported over the radio
that the vehicle was unattended, and the driver had fled.
Upon hearing the information broadcast by Officer Barr,
Officers [Craig] Van Sciver and Raul Ortiz drove to 401 West
Raymond Street to see if Appellant returned to his residence.
While waiting outside the residence, they received more
information from Officer Luciano regarding the crash at Mr.
Burns' building. Officers Van Sciver and Ortiz began
traveling toward Third and Wingohocking Streets, hoping to
intercept Appellant. Officer Van Sciver testified that they
were then approached by an unidentified man, who told them a
man had just run into the corner grocery store at Fourth and
Annsbury Streets. Upon entering the store, they saw Appellant
running down an aisle toward a back access door, and gave
chase. Officer Van Sciver grabbed Appellant at the steps by
the door, and testified that Appellant resisted and kept his
hands at his waistband.
Officers John Bucceroni and Edward Davies were in a marked
police car in the area of Fourth and Annsbury when they
received the radio calls regarding Appellant that day. They
arrived at the Almonte Grocery store within a few minutes of
receiving the call. Officer Bucceroni testified that Officer
Davies entered the store first. Officers Van Sciver and Ortiz
were already on the scene, and Officer Bucceroni saw them
struggling with Appellant at the back of the store. Appellant
appeared to be on his knees or bending over, and both hands
were at his waist. The officers were trying to hold
Appellant's arms. They were instructing Appellant, in
both English and Spanish, to show his hands.
Officer Bucceroni testified that as Appellant struggled, he
and Officers Van Sciver, Davies, and Ortiz were all
attempting to get him under control. They continued to say
"dame los manos" and "give me your
hands." Officer Bucceroni reached for Appellant's
hands, and felt a metal object he recognized as the barrel of
a gun. He said "gun" to alert his fellow officers,
and a few seconds later a shot was fired. He heard Officer
Davies react, but did not see him, because Appellant was
Officer Shawntai Cooper had arrived on the scene with her
partner, Officer Kendall Robinson, when the other four
officers were already struggling with Appellant. In the
course of the struggle, she saw a muzzle flash and heard a
"pop" sound. Officer Davies said "I'm
shot" and grabbed his abdomen. He stumbled towards
Officer Cooper and fell into her arms. With the help of
Officer Barr, Officer Cooper put Officer Davies into a car
and drove him to Temple University hospital.
After Officer Davies was shot, Officer Bucceroni told
Appellant to give him the gun, but Appellant continued to
kick and struggle against the officers. When Officer
Bucceroni grabbed for the gun again, Appellant bit his wrist.
When he tried to pull the gun away a second time, Appellant
bit him again and drew blood. Officer Bucceroni was
eventually able to get the gun from Appellant and hand it to
Officer Ortiz. Appellant continued to struggle, but officers
were then able to handcuff him. They attempted to escort
Appellant from the store, but he continued to resist. As the
officers brought Appellant to a marked police car, he kicked,
and attempted to bite and head-butt the officers.
Following his arrest, Officer Luciano requested Appellant be
brought back to the scene of the accident, so that Mr. Burns
could identify him as the man who fled from the car crash.
Appellant was brought to the scene of the accident in a
police vehicle, and Officer Luciano observed him screaming
and banging his head on the Plexiglas divider and on the back
of the seat. Appellant was saying that if the officers took
the handcuffs off, he would fight with them. They removed
Appellant from the vehicle, and he began swinging his arms
trying to reach his waistband, with his hands still cuffed
behind his back. Mr. Burns was able to positively identify
Appellant as the man who had fled the scene of the accident
on his property. Before returning
Appellant to the vehicle, he was patted down in the waistband
area he had been reaching for, and a black holster was found
clipped to his belt. Appellant was then taken to Einstein
Medical Center's emergency department. Dr. Neeraj Gupta
attempted to assess any injuries following the car accident
and struggle with police, but Appellant was uncooperative.
Several people were required to hold Appellant down on a
stretcher, and eventually leg and arm restraints were deemed
necessary. Even after applying restraints to Appellant, he
continued to fight and was still able to sit up. Dr. Gupta
became concerned about this behavior, which included biting
and spitting, and administered a sedative to calm Appellant.
After obtaining vital signs and as much other information as
he could from Appellant, Dr. Gupta concluded that he appeared
to be intoxicated, likely due to an illegal substance.
Appellant was discharged from the hospital the next day,
Officer Edward Davies testified that he had been trying to
help other officers restrain Appellant when he heard a bang.
He said he felt his chest and stomach get "real
hot" and saw a hole in his shirt. He testified that
everything was hazy and he remembered staggering towards the
floor. When Officer Cooper drove him to the hospital, he
recalled her telling him to keep his eyes open and stay
Officer Davies testified that he spent 37 days in the
hospital, and was in a medically-induced coma for three
weeks. It was several months before he was able to walk
normally again. At the time of trial he had five surgeries to
address his injuries, and was told he would need at least one
more surgery following trial. At the time of trial, Officer
Davies was undergoing rehabilitation and aquatic therapy
three times a week. He continued to feel constant pain in his
stomach, back, groin, and right leg and foot. He testified
that he was unable to lift or play with his three-year-old
son due to his injuries. Officer Davies also lost a kidney
due to the shooting.
Detective Frank Mullen, assigned to the Homicide Unit,
assisted in obtaining video surveillance footage from the
Beer Stop beer distributor located at 4245 Rising Sun Avenue.
The distributor had multiple surveillance cameras on its
property, and Detective Mullen was able to obtain footage
from August 13 that showed the Richard Burns Company's
property. The footage showed Appellant's BMW crash into
the fence and building around noon.
Officer Brian Myers was assigned to the Narcotics Field Unit
at the time of the incident. On August 13, 2013, he was sent
to execute a search warrant at Appellant's home at 401
West Raymond Street. From the house, Officer Myers recovered
a white rectangular object known as a rack of heroin, boxes
of blue and white glassine baggies, and a grinder. Multiple
packs of marijuana and bulk heroin were also found.
Officer Steven Berardi of the Crime Scene Unit was assigned
to process two vehicles registered to Appellant at the police
garage on McCallister Street on August 14, 2013. These
vehicles were a silver BMW, license plate JJA9851, and a
black Lexus, license plate JCT4539, both registered to
Appellant. Officer Berardi photographed the exterior and
interior of each vehicle, and these photographs were entered
Inside the BMW was a Samsung phone with a black and red case
on the passenger side floor. In the glove compartment were
four empty "green plastic screw cap jars, " which
Officer Berardi testified are often used to package
marijuana. There was also a bundle of blue glassine packets
(approximately 12 packets) stamped "eBay, "
containing an off-white powder, later tested and determined
to be heroin. Officer Berardi also found a fanny pack
containing multiple bundles of white and blue glassine
packets containing an off-white powder. In another pocket of
the fanny pack were two more bundles of white glassine
packets containing off-white powder. More white glassine
packets were found inside a red sunglass pouch containing
off-white powder, stamped "Lexus." In total,
Officer Berardi recovered 153 glassine packets containing
off-white powder from the BMW; 22 blue packets stamped
"eBay" and 131 white packets stamped
"Lexus." No contraband was found inside the Lexus
registered to Appellant.
Officer Kevin Keyes of the Narcotics Field Unit gave expert
testimony at trial. Officer Keyes reviewed the chemical
analysis of the property retrieved from Appellant's home
and vehicles. Officer Keyes testified that in his expert
opinion, the drugs found in this investigation were possessed
with the intent to distribute. Officer Keyes based this
determination on the amount of packets and the bulk amount of
heroin possessed, which would amount to over 800 packets
total based on his estimates. The grinder and strainer found
in the house are also often used in processing kilos of
heroin to a fine powder. Officer Keyes further explained that
the toothbrush found with powder residue was commonly used to
keep buildup off the grinder, and the cards and straw were
used to portion out the powder into individual packets.
Trial Court Opinion, 4/22/16, at 2-9 (citations omitted).
March 10, 2015, a jury convicted Appellant of the
aforementioned offenses. On July 8, 2015, the trial court
imposed sentence as set forth above. Appellant filed a
post-sentence motion on July 13, 2015, which the trial court
denied the next day. This timely appeal followed. Appellant
raises four assertions of error:
1. Did not the trial court err in denying Appellant's
motion to suppress the evidence seized pursuant to search
warrant no. 176023, as the affidavit did not provide probable
cause to believe that evidence would be found in the home as
the completed crime took place inside of a grocery store far
from that site?
2. Did not the trial court err in denying Appellant's
motion to sever when a case involving possession of drugs and
a blank gun found in a home was consolidated with an
unrelated case alleging a shooting of a police officer in a
grocery store as the evidence in the drugs and blank gun case
was inadmissible in the case alleging an assault on a police
officer, and the error was prejudicial?
3. Did not the trial court err in imposing a twenty-year
minimum mandatory sentence when the legislature did not
specify if 42 Pa.C.S.A. § 9719.1's "mandatory
term of imprisonment" was to be applied to the minimum
or maximum sentence imposed (unlike other mandatory
sentencing statutes) and the Pennsylvania Supreme Court in
Commonwealth v. Glover, 156 A.2d 114 (Pa. 1959) held
that a mandatory term of imprisonment must be applied to the
maximum sentence in such a situation?
4. Did not the lower court err and abuse its discretion by
sentencing [Appellant] to an unreasonable sentence that was
higher than the standard range of the Sentencing Guidelines,
(even with application of the deadly weapon enhancement) and
18 times what the guidelines recommend, without giving
adequate reasons, on the basis of considerations, including
the nature of the offense, his prior criminal history and the
use of a deadly weapon, that were already factored into the
Sentencing Guidelines and did not the lower court further err
by failing to give proper consideration to [Appellant's]
personal circumstances and mitigating factors?
Appellant's Brief at 5-6.
first argues that the affidavit in support of the search
warrant for his home did not contain sufficient facts from
which the issuing authority could find probable cause to
search the home. He maintains that because both Appellant and
the gun were recovered at the scene, there was not probable
cause to believe that connecting evidence would be found at
Appellant's home. We agree.
reviewing a denial of a suppression motion, we must determine
whether the record supports the suppression court's
factual findings and whether the legal conclusions drawn from
those facts are correct. Commonwealth v. Brown, 64
A.3d 1101, 1104 (Pa. Super. 2013). In reviewing the record,
we consider all of the Commonwealth's evidence, as well
as uncontradicted defense evidence. Commonwealth v.
Harvard, 64 A.3d 690, 695 (Pa. Super. 2013), appeal
denied, 77 A.3d 636 (Pa. 2013). Where the record
supports the suppression court's findings, they are
binding on the appellate court. Id.
search warrant must be supported by probable cause. U.S.
Cont. amend. IV; Pa.Const. art. I, § 8. "Probable
cause exists where the facts and circumstances within the
affiant's knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that a
search should be conducted." Commonwealth v.
Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting
Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa.
In Illinois v. Gates,462 U.S. 213, 103 S.Ct. 2317,
76 L.Ed.2d 527 (1983), the United States Supreme Court
established the "totality of the circumstances"
test for determining whether a request for a search warrant
under the Fourth Amendment is supported by probable cause. In
Commonwealth v. Gray, 503 A.2d 921 ([Pa.] 1986),
this Court adopted the totality of the circumstances test for
purposes of making and reviewing ...