2011 PA Super 180
COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
HARRY GALENDEZ, Appellant
No. 2798 EDA 2007
SUPERIOR COURT OF PENNSYLVANIA
Filed: August 24, 2011
BEFORE: FORD ELLIOTT, P.J., and STEVENS, GANTMAN, PANELLA,
DONOHUE, SHOGAN, ALLEN, LAZARUS and MUNDY, JJ.
OPINION BY PANELLA, J.:
Appellant, Harry Galendez, appeals from the judgment of sentence entered on September 11, 2007, by the Honorable George W. Overton, Court of Common Pleas of Philadelphia County. After careful review, we affirm in part and vacate in part.
In this appeal, we consider whether a police officer's knowledge that a person has an outstanding scofflaw warrant and is wanted for questioning in another matter gives that officer probable cause to make a warrantless arrest. We conclude that knowledge that a person has an outstanding warrant and is wanted for questioning is sufficient to give a police officer probable cause to make a warrantless arrest. We also consider whether a trial court may impose probationary conditions permitting searches of defendant's residence absent reasonable suspicion and if a trial court can
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impose parole conditions where defendant's sentence was for two or more years. Pursuant to this Court's recent decision in Commonwealth v. Alexander, 16 A.3d 1152, 1156 (Pa. Super. 2011) (en banc), we conclude that such probationary conditions are illegal and that the parole conditions are a legal nullity. The facts and procedural history are as follows.
On October 25, 2006, Officer Steven Johnson of the Philadelphia Police Department observed Galendez walking down Westmoreland Avenue at 7:30 p.m. Officer Johnson knew that Galendez was wanted on a scofflaw warrant and was wanted for questioning pertaining to a carjacking. After Galendez entered a barber shop, Officer Johnson and other officers entered the shop and arrested him. During a subsequent search, the officers found a loaded handgun in Galendez's waistband.
Prior to trial, Galendez filed a motion to suppress the gun recovered during his arrest claiming that there was no legal basis or justification for his warrantless arrest. The suppression court denied the motion on the basis that Galendez's arresting officer testified that he knew Galendez was wanted on a scofflaw warrant and for questioning in a carjacking. The suppression court also reasoned that the defense had presented no evidence to show that the claimed warrant was not valid.
The case proceeded to trial in Gun Court, before the Honorable George W. Overton, after which Galendez was sentenced to a term of 2-4 years of
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imprisonment for possession of a firearm,1 to be followed by one year of reporting probation, with credit for time served.2 Two days following sentencing, the trial court entered an order stating that as a condition of Galendez's probation and parole he would be subject to random searches of his residence (limited to the space Galendez occupies) by Gun Violence Task Force Agents. Neither Galendez nor his attorney was present when the trial court imposed this condition. Galendez's attorney filed a timely post-sentence motion, contesting the imposition of the random search condition, which the trial court denied. This appeal followed.
On appeal, Galendez raises the following issues:
1. Did not the trial court err in denying appellant's motion to suppress physical evidence, when appellant was arrested without probable cause or reasonable suspicion, on the basis of a supposed warrant for which there was no evidence in the record?
2. Did not the trial court err in adding conditions of parole to appellant's sentence outside of appellant's presence and the presence of appellant's counsel, two days after sentencing, thereby violating appellant's right to be present for all stages of his criminal proceeding, and his right to counsel at all stages?
3. Did not the trial court err by imposing as a condition of parole and probation that appellant be subject to random searches of his residence by the Gun Safety Task Force without minimal requirements of reasonable suspicion and/or
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probable cause as required by both the United States Constitution and the Pennsylvania Constitution and statutory and decisional law pursuant thereto, as the condition unconstitutionally infringes upon appellant's privacy rights and is not calculated to best serve either the rehabilitative nor [sic] the protective purposes of probation or parole?
Appellant's Brief, at 3.
The standard of review of an appeal from a denial of a motion to suppress is as follows:
Our standard of review of a denial of suppression is whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error. Our scope of review is limited; we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.
Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc) (internal citations omitted).
In addition, "[i]t is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony." Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003). The suppression court is also entitled "to believe all, part or none of the evidence presented." Commonwealth v. Benton, 655 A.2d 1030, 1032 (Pa. Super. 1995). Finally, at a suppression hearing, the Commonwealth has the burden of "establish[ing] by a preponderance of the
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evidence that the evidence was properly obtained." Commonwealth v. Culp, 548 A.2d 578, 581 (Pa. Super. 1988).
Likewise, the standard for a warrantless arrest is also well settled, as stated by our esteemed colleague Judge Susan Gantman:
Probable cause to arrest exists when the facts and circumstances within the police officer's knowledge and of which the officer has reasonably trustworthy information are sufficient in themselves to warrant a person of reasonable caution in the belief that an offense has been committed by the person to be arrested. Probable cause justifying a warrantless arrest is determined by the totality of the circumstances.
Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (internal citations and quotation marks omitted).
Furthermore, as succinctly explained by then Judge, now President Judge, Correale Stevens: "[p]robable cause does not involve certainties, but rather 'the factual and practical considerations of everyday life on which reasonable and prudent men act.'" Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005) (quoting Commonwealth v. Wright, 867 A.2d 1265, 1268 (Pa. Super. 2005)). It is the facts and circumstances within the personal knowledge of the police officer that frames the determination of the existence of probable cause. See, e.g., Commonwealth v. Lawson, 454 Pa. 23, 27, 309 A.2d 391, 394 (1973) ("Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that [an] offense has been committed.").
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Galendez's argument, that the suppression court erred in denying his...
