Commonwealth v. Rodriguez

2 Pa. D. & C.5th 251
CourtPennsylvania Court of Common Pleas, Berks County
DecidedJanuary 22, 2008
Docketno. CP-06-CR-0005513-2006
StatusPublished

This text of 2 Pa. D. & C.5th 251 (Commonwealth v. Rodriguez) 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. Rodriguez, 2 Pa. D. & C.5th 251 (Pa. Super. Ct. 2008).

Opinion

BUCCI, J.,

PROCEDURAL HISTORY

On July 25,2007, appellant was found guilty following a jury trial of two counts of possession with intent to deliver a controlled substance,1 two counts of possession of a controlled substance,2 and four related counts of conspiracy.3 These charges were based on the seizure of a significant quantity of cocaine and marijuana that was found on appellant’s person and on the person of two other defendants at 311 North 10th Street, Reading, PA. On September 26,2007, he was sentenced to an aggregate sentence of nine to 20 years incarceration. Appellant then filed a timely post-sentence motion, which was denied. On October 26, 2007, appellant filed a notice of appeal to the Pennsylvania Superior Court and 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 concise statement on November 1, 2007, raising the following issues:4

[253]*253(1) The trial court erred in denying suppression of evidence when it failed to redact misinformation contained within the search warrant probable cause when it was information about a completely different person with the same name as the defendant (a fact that was not contested by the Commonwealth) that if properly redacted would have left the search warrant unsupported by probable cause and therefore invalid.

(2) The trial court erred when sentencing on conspiracy to commit possession with intent to deliver cocaine when it applied an offense gravity score of eight based on the weight of drugs that combined what was found on the defendant’s person with that of a co-defendant (Garcia) despite the specific jury verdict that defendant possessed with intent to deliver only the cocaine found on his person which would have resulted in an offense gravity score of seven and lower standard ranges.

(3) The trial court abused its discretion in sentencing to an extensive sentence that failed to account for the defendant’s personal circumstances and other required sentencing factors and was merely punitive in nature.

DISCUSSION

I. Suppression of Evidence

Appellant first argues that the evidence in this case should have been suppressed because the search warrant contained incorrect information.

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 [254]*254then 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)). It will consider only the evidence of the Commonwealth and any defense evidence which remains uncontradicted when read in the context of the entire record. Id.

Both the United States Constitution and the Pennsylvania Constitution prohibit unreasonable searches and seizures. See U.S. Constitution Amendment IV; Pa. Constitution Article I, Section 8. In determining whether a search and seizure conducted pursuant to a search warrant was unreasonable, the question is whether probable cause existed to issue the search warrant. See Pa.R.Crim.P. 2003(a) (“[n]o search warrant shall issue but upon probable cause supported by one or more affidavits sworn to before the issuing authority”).

“The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Commonwealth v. Clark, 412 Pa. Super. 92, 96, 602 A.2d 1323, 1325-26 (1992), appeal denied, Commonwealth v. Clark, 533 Pa. 606, 618 A.2d 398 (1992), cert. denied, Pennsylvania v. Clark, 507 U.S. 1030 (1993).

“In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court held a defendant may attack the issuance of a warrant if based on untruthful information. Id. at [255]*255171. In requiring a truthful basis for the issuance of a warrant, the court explained, ‘[t]his does not mean “truthful in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant’s own knowledge that sometimes must be garnered hastily.’ Id. at 165. To succeed in attacking a warrant, a defendant must come forward with ‘allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.’ Id. at 171.” Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006).

Stated another way, “[mjisstatements of fact in a search warrant affidavit will invalidate a search and require suppression only if they are deliberate and material.” Commonwealth v. Mickell, 409 Pa. Super. 595, 609, 598 A.2d 1003, 1010 (1991).

Here, in the affidavit of probable cause supporting the search warrant for 311 North 10th Street, Reading, Pennsylvania, Criminal Investigator Edward Heim stated that records kept by the Pennsylvania Department of Transportation listed a Hector Rodriguez, DOB 10/21/84, as an occupant of the residence located at 311 North 10th Street and that a search of police records indicated that six days previously a Hector Rodriguez, DOB 10/21/84, was shot multiple times near that residence and that Mr. Rodriguez had on his person 16 packets of crack cocaine.

It is undisputed that the appellant herein was bom in 1966, not 1984, and that he was not shot multiple times. Accordingly, appellant contends that the paragraph in the affidavit of probable cause regarding Hector Rodriguez, [256]*256DOB 10/21/84, is misinformation. However, appellant has failed to prove that the PennDOT and police records referenced were false or fabricated or that they did not refer to events that actually occurred. Appellant presented no evidence that a Hector Rodriguez, DOB 10/21/84, did not reside at 311 North 10th Street, even though he was not present when police searched the residence.

Furthermore, even if the information appellant refers to was false, appellant has failed to establish that the misstatement was deliberate or material. Even if this court had redacted the paragraph at issue, there was still sufficient probable cause to support the search warrant.

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Related

Franks v. Delaware
438 U.S. 154 (Supreme Court, 1978)
Commonwealth v. Cunningham
805 A.2d 566 (Superior Court of Pennsylvania, 2002)
Commonwealth v. Koehler
737 A.2d 225 (Supreme Court of Pennsylvania, 1999)
Commonwealth v. Redman
864 A.2d 566 (Superior Court of Pennsylvania, 2004)
Commonwealth v. Ryerson
817 A.2d 510 (Superior Court of Pennsylvania, 2003)
Commonwealth v. Johnson
920 A.2d 873 (Superior Court of Pennsylvania, 2007)
Commonwealth v. Johnson
734 A.2d 864 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Walls
926 A.2d 957 (Supreme Court of Pennsylvania, 2007)
Commonwealth v. Mickell
598 A.2d 1003 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Ladamus
896 A.2d 592 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Rodda
723 A.2d 212 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Clark
602 A.2d 1323 (Superior Court of Pennsylvania, 1992)
Commonwealth v. Mouzon
812 A.2d 617 (Supreme Court of Pennsylvania, 2002)
Commonwealth v. Devers
546 A.2d 12 (Supreme Court of Pennsylvania, 1988)
Commonwealth v. Gomolekoff
910 A.2d 710 (Superior Court of Pennsylvania, 2006)
Commonwealth v. Bromley
862 A.2d 598 (Superior Court of Pennsylvania, 2004)
Pennsylvania v. Clark
507 U.S. 1030 (Supreme Court, 1993)

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Bluebook (online)
2 Pa. D. & C.5th 251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rodriguez-pactcomplberks-2008.