Commonwealth v. Albarran

6 Pa. D. & C.5th 287
Pennsylvania Court of Common Pleas, Berks County·Decided October 15, 2008·No. no. CP-06-CR-0000373-2008·Published

Opinion

BUCCI, J,

[289]*289PROCEDURAL HISTORY

In a bench trial held on July 25,2008, Jose Gonzalez Albarran (appellant) was found guilty of possession with intent to deliver a controlled substance,1 possession of a controlled substance,2 possession of drug paraphernalia,3 driver’s license to be required4 and registration and certificate to be required.5

This court sentenced the appellant, on July 25, 2008, to nine to 36 months for possession with intent to distribute a controlled substance with a concurrent sentence of two to 12 months for possession of drug paraphernalia, for an aggregate sentence of nine to 36 months.

On August 21,2008, appellant filed a timely notice of appeal to the Pennsylvania Superior Court. On August 28, 2008, this court ordered appellant to file a concise statement of errors complained of on appeal, pursuant to Pennsylvania Rules of Appellate Procedure 1925(b). Appellant filed a timely concise statement on September 3, 2008, alleging the court erred:

“(1) In denying appellant’s motion to suppress physical evidence after the arresting officer illegally searched and seized money from the appellant’s pockets and then failed to obtain a knowing and voluntary consent to search the appellant’s vehicle.”

[290]*290FACTUAL BACKGROUND

On January 1,2008, Officer Christopher Cortazzo was on routine patrol in the City of Reading, Berks County. N.T. at 3-4. At approximately 9 p.m., Officer Cortazzo stopped the appellant’s vehicle in the 800 block of North 11th Street of the city because the vehicle registration sticker expired the previous day. N.T. at 4-5. As Officer Cortazzo approached the vehicle on foot, appellant stuck his head out of the driver’s side window of his vehicle and yelled, “Hey, Cortazzo. You know me from Topher’s Cafe.” Officer Cortazzo did not recognize appellant. However, Officer Cortazzo is familiar with the illegal drug activity that occurs in Topher’s Cafe.

Just prior to asking appellant for identification, Officer Cortazzo smelled marijuana emanating from the vehicle. N.T. at 7. He also saw that appellant was shaking and his demeanor, in general, was “peculiar and suspicious”. N.T. at 7. Thereafter, Officer Cortazzo asked appellant to exit his vehicle. N.T. at 8. After he exited his vehicle, appellant attempted to reach in his pants pockets on three occasions. N.T. at 9. Officer Cortazzo asked appellant to keep his hands out of his pockets and to “relax” numerous times. Concerned for his safety, Officer Cortazzo conducted a Terry frisk of appellant. During the course of the patdown, Officer Cortazzo discovered a razor-blade-style knife and nearly $3,000 in U.S. currency in appellant’s pants pockets.

Then, while speaking with the passenger of the vehicle, Officer Cortazzo observed a white plastic shopping bag containing a box of Ziploc bags and a brick-shaped object wrapped tightly in a plastic bag on the back seat [291]*291of the vehicle. N.T. at 10-11. Officer Cortazzo asked appellant if there was anything illegal in the vehicle. Appellant told Officer Cortazzo, that he did not have anything illegal. Appellant then offered Officer Cortazzo the opportunity to search the vehicle. Incident to defendant’s consent, Officer Cortazzo search the vehicle and retrieved the two suspicious plastic shopping bags containing a brick of marijuana, a digital scale and a box of Ziploc bags. N.T. at 12-14. When Officer Cortazzo placed the marijuana and contraband on the roof of the vehicle, appellant fled on foot. N. T. at 15. Officer Uczynski pursued and later apprehended appellant.

DISCUSSION

Appellant argues this court erred by denying appellant’s pretrial motion to suppress evidence of a brick of marijuana and numerous items of contraband found on his person and in his vehicle.

In reviewing a decision to admit or suppress evidence, the reviewing court must ascertain whether the record supports the factual findings of the suppression court and then determine the reasonableness of the inferences and legal conclusions drawn from those findings. Commonwealth v. Ryerson, 817 A.2d 510, 513 (Pa. Super. 2003) citing Commonwealth v. Johnson, 734 A.2d 864, 869 (Pa. Super. 1999). The reviewing court should only consider the evidence of the Commonwealth and any defense evidence which remains uncontradicted when read in the context of the entire record. Ryerson, 817 A.2d at 513.

This court held an omnibus pretrial hearing on April 24, 2008. After hearing testimony and considering the [292]*292arguments of counsel, the court wrote findings of fact and conclusions of law denying the appellant’s motion to suppress the evidence. This court hereby incorporates by reference its findings of fact and conclusions of law. However, the court will briefly summarize its conclusions in support of its decision to deny appellant’s motion to suppress the evidence.

Pursuant to the valid traffic stop, Officer Cortazzo justifiably asked the appellant to step out of his vehicle for officer safety because the traffic stop occurred at night in a high-crime area; because the defendant appeared very nervous and his hands were shaking; and because defendant said he frequented Topher’s Cafe which Officer Cortazzo knows is a place where illegal drug sales occur. See Commonwealth v. Van Winkle, 880 A.2d 1280, 1285 (Pa. Super. 2005), citing Commonwealth v. Freeman, 563 Pa. 82, 757 A.2d 903 (2000) and Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977), for the proposition that after a valid traffic stop the police do not need any level of suspicion to ask the occupants to step out of the vehicle.

Then Officer Cortazzo conducted a Terry frisk of appellant. A law enforcement officer may pat down an individual detained for investigative purposes if the officer has reasonable suspicion that the individual is presently armed and dangerous. Commonwealth v. E. M., 558 Pa. 16, 28, 735 A.2d 654, 661 (1999), citing Terry v. Ohio, 392 U.S. 1, 24, 88 S.Ct. 1868, 1881, 20 L.Ed.2d 889 (1968). Nevertheless, a Terry frisk, should be limited to what is necessary for the discovery of weapons or immediately identifiable contraband. See e.g., In re J.N., 878 A.2d 82 (Pa. Super. 2005); Com[293]*293monwealth v. Johnson, 429 Pa. Super. 158, 631 A.2d 1335 (1993).

Although Officer Cortazzo was justified in patting down appellant to conduct a limited frisk for weapons and contraband, the seizure of the $2,890 from the defendant’s pocket exceeded the permissible scope of a Terry frisk. There is no evidence on the record that Officer Cortazzo had reason to believe that the currency was contraband or a weapon.

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Commonwealth v. Albarran, 6 Pa. D. & C.5th 287 (Pa. Super. Ct. 2008).

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