Commonwealth v. Rodriguez

10 Pa. D. & C.5th 147
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedApril 9, 2009
Docketno. 2219-2008
StatusPublished

This text of 10 Pa. D. & C.5th 147 (Commonwealth v. Rodriguez) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh 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, 10 Pa. D. & C.5th 147 (Pa. Super. Ct. 2009).

Opinion

ANTHONY, J,

The defendant was charged with possession with intent to deliver a controlled substance (marijuana),1 possession of a small amount of marijuana,2 and possessing an instrument of crime3 following an incident that took place on May 13, 2008.

On September 17, 2008, the defendant filed omnibus pretrial motions consisting of (1) motion for suppression of evidence and (2) motion for discovery. Pretrial hearings were held on November 26,2008, and February 10, 2009, the latter at the request of defendant’s counsel.4

At the hearing of November 26,2008, Officer Joshua Brubaker of the Allentown Police Department (APD) testified. At the hearing of February 10, 2009, Evaristo Rodriguez (defendant) testified, and I admitted into evidence photographs of the belt, trousers, and shirt the defendant wore at the time of his arrest as D-2, D-3 and D-4, respectively. Although Brubaker appeared for the hearing of February 10, 2009, he did not testify. At that same hearing, defendant’s counsel offered into evidence Brubaker’s arrest report of May 13,2008, as D-l, pursuant to Pa.R.E. 803.1(1 )(b), and I took the question of the admissibility of the report under advisement. Thereafter, I reviewed Brubaker’s earlier testimony and determined that the report is admissible as an inconsistent statement of a witness.

[150]*150Defendant’s counsel filed a brief wherein he argued, inter alia, that Brubaker is not credible based on inconsistencies and discrepancies between his testimony and his report, and that the evidence should be suppressed. The district attorney sent to me a letter brief wherein he argued that the evidence should not be suppressed.

THE EVIDENCE

Officer Brubaker’s Testimony

At the hearing of November 26, 2008, Brubaker stated on direct examination that he has been a police officer for approximately four years, with approximately two years with the Allentown Police Department (APD). He further testified that on May 13, 2008, he drove to Jack’s Pizza (no location was given) in full uniform and driving a police cruiser, and walked into the establishment at approximately 11 a.m. “to pick up a food order for personnel working at headquarters that day.” While inside, he observed the defendant standing in front of a counter. The defendant looked in the direction of Brubaker, and Brubaker watched the defendant walk away from the counter “to the center booth, located in the pizza shop, and sit down.” Brubaker observed a bulge on the defendant’s right hip while the defendant was at the counter, but could not tell, at least initially, whether the defendant was carrying a concealed weapon.

An employee of Jack’s Pizza advised the defendant that his pizza was ready, and after looking at Brubaker for a few seconds, the defendant stood up and walked up [151]*151to the counter. At this point Brubaker observed the outline of a firearm underneath the defendant’s shirt. Brubaker commented that his ability to identify the weapon was based on training he received on the identification of firearms through the “Philadelphia Fraternal Police Lodge,” regular observation of individuals who possess firearms, previous arrests of individuals with concealed firearms, and his practice of always carrying a concealed firearm while not on duty.

Brubaker waited for the defendant to sit down. According to Brubaker, the defendant appeared to be very nervous. When the defendant sat down, he picked up the slice of pizza, put the slice back down, then placed his hands on the table, bowed his head, and prayed. While he was praying, Brubaker walked up to and then behind the defendant. The defendant noticed Brubaker before he started to walk behind him, and Brubaker observed the defendant reach for the firearm. By the time Brubaker got behind the defendant, the defendant’s “hand was already forming to the shape of the handle of the firearm and was less than an inch from the grip of the firearm.” At that point, Brubaker put his “hand on the handle of the firearm to prevent [the defendant] from being able to pull the firearm.”

After Brubaker put his hand on the handle of the firearm, he grabbed the defendant’s wrist with his left hand, put him in a wristlock and placed handcuffs on him. At the point he was being handcuffed, the defendant told Brubaker he had a concealed weapons permit in his front pocket, stating he was trying to reach for it. Brubaker stood the defendant up, and attempted to remove his gun [152]*152from his waistband, as he was concerned the defendant may still be able to reach the gun. Brubaker has had a number of experiences with handcuffed individuals who were able to move their hands from the back to the front of their bodies.

According to Brubaker, he had to undo the defendant’s belt in order to remove the firearm (he did not explain why). When he pulled up the defendant’s shirt to undo his belt, he noticed a portion of a plastic bag sticking out of the fly of the defendant’s trousers. Based on his basic training and education at the police academy, at least 72 hours of drug intelligence and drug identification classes following the academy, and dozens of drug arrests, Brubaker concluded the bag “probably” contained drugs. Brubaker undid the belt and immediately removed the firearm due to safety considerations. Upon removing the defendant’s belt, the defendant’s pants fell to the ground. Brubaker removed a baggie from the fly, and observed that it contained nine zip lock-type bags of a greenish-brown vegetable matter, which he believed to be marijuana.

After the firearm was secured, Brubaker found a concealed weapons permit in the defendant’s “back right pocket”. He transported the defendant to headquarters where the defendant was searched. He found $430 in various denominations on the defendant. He contacted the Lehigh County Sheriff’s Department and confirmed that the defendant’s concealed weapons permit was valid.

On cross-examination, Brubaker confirmed that the defendant carried the concealed weapon on his right hip, [153]*153a common location. He agreed that the gun was in proximity to where he located the permit. When asked why he walked behind the defendant, Brubaker stated:

“I asked him several times what the bulge was on his waist, and he said nothing several times, and I know in my experience, that people carry firearms illegally throughout the entire state and throughout the entire county, and it’s my duty as a police officer to determine who carries a firearm legally and who carries one illegally.”5

Brubaker acknowledged that he did not mention this aspect of the events when testifying on direct examination. Brubaker explained that had the defendant advised him beforehand that he had a concealed weapons permit, he “would have handled the situation completely differently.”

On redirect examination, Brubaker commented that while at police headquarters, another officer discovered that the defendant was wearing body armor.

Defendant’s Testimony

At the hearing of February 10, 2009, the defendant indicated on direct examination that he was in Jack’s Pizza on May 13, 2008, at approximately 11 a.m., and he ordered a slice of pizza. He sat down and then observed Officer Brubaker walk into the restaurant. He noted that Brubaker walked immediately to the counter.

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Related

Terry v. Ohio
392 U.S. 1 (Supreme Court, 1968)
Commonwealth v. Wilmington
729 A.2d 1160 (Superior Court of Pennsylvania, 1999)
Commonwealth v. Robinson
600 A.2d 957 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Smith
784 A.2d 182 (Superior Court of Pennsylvania, 2001)
Commonwealth v. Fitzpatrick
666 A.2d 323 (Superior Court of Pennsylvania, 1995)
Commonwealth v. Stevenson
894 A.2d 759 (Superior Court of Pennsylvania, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
10 Pa. D. & C.5th 147, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-rodriguez-pactcompllehigh-2009.