Preview:

J. S79010/10 2011 PA Super 106 COMMONWEALTH OF PENNSYLVANIA v. ANNIBAL CRUZ, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2839 EDA 2009

Appeal from the Judgment of Sentence, September 14, 2009, in the Court of Common Pleas of Philadelphia County Criminal Division at Nos. MC-51-CR-0054183-2008, CP-51-CR-0001115-2009 BEFORE: FORD ELLIOTT, P.J., MUNDY AND OTT, JJ. ***Petition for Reargument Filed May 18, 2011*** OPINION BY FORD ELLIOTT, P.J.: Filed: May 17, 2011 Appellant, Annibal Cruz, brings this appeal following his conviction for various weapons' offenses. Appellant raises multiple suppression issues and a sufficiency of the evidence claim. Finding no merit, we affirm. A suppression hearing held immediately prior to appellant's trial revealed the following facts. At approximately 1:25 p.m. on November 1,

2008, Officer Joseph Doyle of the Philadelphia police received a radio dispatch to be on the lookout for an "Hispanic male driving an older model green, small vehicle." (Notes of testimony, 6/22/09 at 7.) The report stated that the man had a gun. (Id.) Approximately one minute later,

Officer Doyle observed a vehicle answering that description, which he stated "stuck out," being "a classic car sort of a bright green, older color that you

J. S79010/10 don't see on vehicles anymore."1 (Id. at 7-8.) Officer Doyle activated his lights and siren, and appellant brought the car to a halt between the moving and parking lanes. (Id. at 8, 21-22.) Officer Doyle observed appellant

moving sideways in the front seat. (Id. at 9-10.) Officer Doyle approached the car and asked appellant for his driver's license, vehicle registration, and proof of insurance. (Id. at 10-11.) Appellant said he had a license, but was evasive about where it was. neither of the other two items. (Id. at 14.) (Id. at 11, 14.) (Id.) Appellant could provide

The car also had no license plate.

Appellant identified himself to Officer Doyle with five or six (Id. at 11-12.)

different names, and also different dates of birth.

Officer Doyle testified that the computer was eventually able to produce a "hit" on appellant using the name Annibal Cruz, one of the birthdates, and appellant's Social Security number. Officer Doyle discovered that appellant had an outstanding warrant. (Id. at 12.) Within one minute of appellant's stop, other officers arrived on the scene with the initial complainant, who identified appellant as the man who had pulled a gun and threatened her. (Id. at 12-13.) Officer Doyle ran the vehicle identification number, but found no result in Pennsylvania. (Id. at 14.) Police then impounded the vehicle. (Id. at 15.) Prior to the tow truck arriving, Officer Doyle conducted a brief inventory search of the vehicle, which the officer stated was protocol. (Id. at 27.) When he touched a

1

The car was a 1963 Mercury. (Notes of testimony, 6/22/09 at 21.) -2-

J. S79010/10 latched compartment on the vehicle's passenger side, the door fell open, revealing a firearm. (Id. at 17-18.) Officer Doyle stated that he went to the passenger side because that was the direction in which he had observed appellant moving sideways. (Id. at 18.) A rubber glove was also found in the car. (Id. at 34.) The complainant had reported that appellant was

wearing gloves. (Id.) Upon inquiry, appellant stated that he used the glove to wash and wax the car. (Id.) Immediately after the court denied appellant's suppression motion, a bench trial was conducted. The court found appellant guilty of persons not to possess, use, manufacture, control, sell, or transfer firearms, firearms not to be carried without a license, and carrying firearms on public streets or public property in Philadelphia.2 On September 14, 2009, appellant was

sentenced to an aggregate term of 5 to 10 years' imprisonment. This timely appeal followed. Appellant raises the following issues on appeal: I. DID THE LOWER COURT ERR IN FAILING TO SUPPRESS PHYSICAL EVIDENCE DISCOVERED DURING THE WARRANTLESS SEARCH OF A VEHICLE OPERATED BY THE DEFENDANT AFTER THE CAR WAS STOPPED BY THE POLICE BASED ON A VAGUE RADIO CALL ABOUT A PERSON WITH A GUN? DID THE LOWER COURT ERR IN FAILING TO SUPPRESS PHYSICAL EVIDENCE SEIZED DURING A WARRANTLESS SEARCH OF THE VEHICLE OPERATED BY THE DEFENDANT

II.

2

18 Pa.C.S.A.

Download s79010-10-0.pdf

Pennsylvania Law