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Commonwealth v. Torres

Superior Court of Pennsylvania

December 22, 2017


         Appeal 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, CP-51-CR-0011170-2013, CP-51-CR-0011171-2013, CP-51-CR-0011172-2013, CP-51-CR-0011173-2013.



          STABILE, J.

         Appellant, 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.[1] We vacate and remand for a new trial.

         The 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[2] 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 store.
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 still struggling.
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, August 14.
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 awake.
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 into evidence.
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).

         On 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.

         Appellant 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.

         When 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.

         A 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)[3] (quoting Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)).


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 ...

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