Commonwealth v. Perez

15 Pa. D. & C.4th 49, 1992 Pa. Dist. & Cnty. Dec. LEXIS 211
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJuly 2, 1992
Docketno. 988-92
StatusPublished

This text of 15 Pa. D. & C.4th 49 (Commonwealth v. Perez) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Perez, 15 Pa. D. & C.4th 49, 1992 Pa. Dist. & Cnty. Dec. LEXIS 211 (Pa. Super. Ct. 1992).

Opinion

LUDGATE, J.,

On March 16, 1992, the defendant, a juvenile, had a detention hearing at which time it was ordered that the defendant be detained for possession of a Schedule II controlled substance (cocaine) [50]*50and possession of a Schedule I controlled substance (heroin), possession with intent to deliver a Schedule II controlled substance (cocaine) and possession with intent to deliver a Schedule I controlled substance (heroin). On March 26,1991, a hearing was held before the Honorable Arthur E. Grim, after which the court found that the defendant was not amenable to treatment, supervision and/or rehabilitation as a juvenile and accordingly, the court ordered that the charges be certified to adult court for purposes of prosecution.

On April 17, 1992, the defendant was arraigned on the above charges.

On May 19, 1992, an omnibus pretrial hearing was held. The court denied the defendant’s motion to suppress the evidence seized during a search of the defendant and the statement given by the defendant to the police.

On May 21, 1992, a jury trial was held before the Honorable Linda K.M. Ludgate. The defendant was found guilty on: count one, possession of cocaine; count two, possession of heroin and; count three, possession with intent to deliver cocaine. Count four, was dismissed prior to trial on a motion of Assistant District Attorney John T. Adams. The defendant was given notification of a mandatory sentence pursuant to 18 Pa.C.S. §7508 after the conviction.

On May 26, 1992, defendant filed a motion for a new trial and/or arrest of judgment. The motion was argued on June 22, 1992.

STATEMENT OF FACTS

(1) On or about March 5,1992, at approximately 11:30 p.m., Officer Berrios of the Reading Bureau of Police, [51]*51observed defendant, Javier Perez, talking to someone in a taxi cab.

(2) The officer approached the defendant. The defendant jumped back from the taxi when he saw the officer.

(3) At that time, the officer observed the defendant put his hands near his groin area. The officer told the defendant to remove his hands for safety reasons.

(4) The officer then discovered that the defendant was only 17 years old. The defendant was bom on July 17, 1974.

(5) The defendant was in violation of the Reading City Ordinance, Article 725.01. This was a curfew violation.

(6) A pat-down was performed and the defendant was cuffed. The defendant was detained at the scene, while information was obtained about the other male with him.

(7) The defendant was then taken to the police station. He was brought down to the juvenile detention area.

(8) At approximately 12:30 a.m., the defendant gave police a name to contact. The defendant stated that this was his father. However, that individual was not his father and further contacts had to be made.

(9) The defendant’s contact and the defendant’s mother arrived at the station at approximately 12:45 a.m.

(10) A strip search of the defendant was conducted between the hours of 12:30 and 1 a.m.

(11) The search revealed a leather Oakland Raiders bag within the defendant’s groin area.

(12) At that time, the defendant stated “O.K., you got me.”

[52]*52(13) The bag was removed and emptied. Its contents contained 14 bags of cocaine and two bags of heroin.

(14) The defendant stated that the heroin was for his own use.

DISCUSSION

(A) Whether or not the court erred in admitting evidence obtained as a result of an unlawful arrest?

(i) Whether or not probable cause existed?

The defendant asserts that the arrest of Javier Perez was unlawful due to the fact that the police had no probable cause to believe that a crime had been or was being committed. We do not agree.

“No person who is 16 years of age or older and under the age of 18 years shall loiter, loaf or idle on or about any public street, avenue, alley, park or other place in the city between the hours of 10 p.m. and 5 a.m. of the following day, official city time.” Ordinance 24-69 §2, Reading City Ordinance.

According to Black’s Law Dictionary, 6th Edition (West 1990), the term “loiter” is “to be slow in movement; to stand around or move slowly about; to stand idly around....” The term “loaf” is defined as “to spend time in idleness to lounge or loiter about or along.”

In the instant case, as Officer Berrios approached the defendant, he saw him talking to someone in a cab. The defendant was on the sidewalk with a friend. At that point, Officer Berrios could have determined that the defendant was moving slowly and standing around. After asking the defendant his age and discovering that the [53]*53defendant was 17 years of age, Officer Berrios had probable cause to arrest the defendant for a curfew violation.

Section 5 of the Reading City Ordinance 29-69, states that “Any police officer is authorized to arrest, with or without warrant, any person or persons violating any provision of this article, and any child unaccompanied by a parent....”

Officer Berrios had the requisite probable cause to arrest. Officer Berrios had authority to arrest the defendant, which was authorized by the ordinance.

(ii) Whether or not the curfew violation for which Javier Perez was arrested was a crime?

The defendant argues that the violation of Ordinance 24-69 §2 of the Reading City Ordinance is not a crime. We do not agree.

The Pennsylvania Crimes Code classifies an offense as a summary if:

(1) It is so designated by this Title or in a statute other than this Title; or

(2) If a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than 90 days. 18 Pa.C.S. §107(c). (emphasis added)

The penalties for violation of Reading City Ordinance 24-69 §2, is stated as follows: “Whoever violates any provision of this Article, shall upon conviction be fined not more than $300 and costs and in default of payment thereof shall be imprisoned not more than 90 days.” Ordinance 24-69 §6.

Since a violation of section 2 may result in a period of imprisonment, not more than 90 days, due to a failure [54]*54to pay the $300 fine, the Reading City Ordinance 24-69 §2 can be classified as a summary offense.

(iii) Whether or not the arrest of Javier Perez was used as a pretense to search the defendant for drugs?

After the defendant was arrested for a curfew violation, he was transported to City Hall. The police officer with the defendant had been informed by the Officer who had been on duty in that area prior to his shift, that he had seen the defendant in the area. At the time Officer Berrios was approaching the defendant, he saw him reach down toward his crotch. The area where the defendant was found was considered to be a high drug trafficking area.

The search in the case at bar, was a search incident to a lawful arrest for violation of City Ordinance 24-69 §2.

There is no evidence that the police used the arrest as a pretense to search the defendant for drugs. After the defendant was taken into custody his parents were contacted by Sergeant George Lessig.

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Cite This Page — Counsel Stack

Bluebook (online)
15 Pa. D. & C.4th 49, 1992 Pa. Dist. & Cnty. Dec. LEXIS 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-perez-pactcomplberks-1992.