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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE CRUZ

                            Appellant                 No. 2676 EDA 2016


             Appeal from the Judgment of Sentence April 13, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): MC-51-CR-0004122-2016


BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J.                         FILED OCTOBER 06, 2017

       The trial court found Appellant, Jose Cruz, guilty of possession of crack

cocaine and sentenced him to a probationary period of three years.1 On

appeal, Cruz challenges the sufficiency of the Commonwealth’s evidence at

his suppression hearing and at trial. After careful review, we conclude the

Commonwealth failed to meet its burden at the suppression hearing, and

therefore reverse.

       When reviewing a denial of a suppression motion, “we must consider

only the evidence of the prosecution and so much of the evidence of the

defense as remains uncontradicted when read in the context of the record as

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1 Additional charges of possession with intent to deliver and conspiracy were
dismissed after a preliminary hearing.
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a whole.” Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007).

We are not bound by the suppression court’s legal conclusions and review

the suppression court’s application of the law to the facts de novo. See

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015).

      In contrast, we defer to the suppression court’s findings of fact as it is

in the bailiwick of the suppression court to assess the credibility of witnesses

and the weight to be given to their testimony. See id. “It is within the

suppression court’s sole province as factfinder to pass on the credibility of

witnesses and the weight to be given to their testimony. The suppression

court is free to believe all, some or none of the evidence presented at the

suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183

(Pa. Super. 2003) (citations omitted).

      Cruz opened his suppression hearing by seeking to suppress “any and

all physical evidence that came from [Cruz] on February 11, 2016 … on th

grounds – specifically narcotics on the grounds that there’s no reasonable

suspicion to stop my client, nor reasonable suspicion to frisk my client, no

probable cause to arrest my client and no probable cause to search my client

[incident to any arrest.]” See N.T., Suppression Hearing, 4/13/16, at 5. In

response to this, the Commonwealth presented a single witness, Philadelphia

Police Sergeant Patrick Love. Sergeant Love testified he was in plain clothes

in an unmarked police vehicle when he observed Cruz purchase crack

cocaine from another man. See id., at 7-8. Sergeant Love “then went over


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radio and … notified officers of their description and – to come and stop

them.” Id., at 8 (emphasis supplied). He then testified to his experience in

investigating narcotics and the basis of his belief the objects Cruz received

contained crack cocaine. See id., at 9-11. The Commonwealth then rested.

       At no point in the suppression hearing did the Commonwealth present

evidence concerning the stop of Cruz. Nor did it present evidence of where

the challenged evidence was found. In fact, the Commonwealth did not even

present evidence of what was found.2

       Most importantly, the Commonwealth did not present evidence of why

or how Cruz was searched. Sergeant Love testified that he instructed other

officers to “stop” Cruz. This could mean that he instructed officers to

approach Cruz and question him, or it could mean that he instructed them to

arrest Cruz.

       From this record, we conclude the trial court’s finding that Sergeant

Love had probable cause to stop Cruz is supported by competent evidence.

Furthermore, it was reasonable for the trial court to infer that another officer




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2 While the Commonwealth did present evidence on these issues at the
subsequent trial, we cannot consider this evidence in reviewing the
suppression court’s decision to deny Cruz’s suppression motion. See In re
L.J., 79 A.3d 1073, 1085 (Pa. 2013).




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was relying on Cruz’s statement when the officer stopped Cruz.3 Beyond this

point, however, there is no evidence in the suppression record.

        In responding to a motion to suppress, the Commonwealth bears the

burden of proving “the constitutional rights of the accused were not violated

by the search.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa.

2014). This is true even on issues upon which the accused bears the

ultimate burden of persuading the finder of fact. See id., at 701-702.

        With this in mind, we note that the record of the suppression hearing

does not support any finding regarding the search of Cruz or the seizure of

crack cocaine. The investigating officer may have seen the crack cocaine in

plain view. Or he may have recognized it during a Terry4 search. Perhaps

the crack cocaine was found in a body cavity. The important point is that the

record cannot legally support any of these findings.

        If the officers believed that they were justified in arresting Cruz based

upon Sergeant Love’s instruction, any subsequent search and seizure would

have been justified based upon our conclusion regarding probable cause. But

there is no evidence that can support a finding that the officers, objectively

or subjectively, arrested Cruz before searching him. Thus, any conclusion

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3The investigating officer was justified in relying on Sergeant Love’s radioed
order, even in the absence of corroborating information. See
Commonwealth v. Anthony, 97 A.2d 1182, 1187 (Pa. Super. 2009).

4   Terry v. Ohio, 392 U.S. 1 (1968)



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regarding the lawfulness of the search and seizure can be based only upon

pure conjecture.

      Under these circumstances, the Commonwealth failed to carry its

burden of establishing that Cruz’s constitutional rights were not violated by

the search and seizure. We must therefore reverse the trial court’s order

denying Cruz’s suppression motion, which necessarily reverses the judgment

of sentence in its entirety.

      Judgment of sentence reversed. Appellant discharged.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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