Commonwealth v. Torres

177 A.3d 263

COMMONWEALTH of Pennsylvania, Appellee

v.Eric TORRES, Appellant

No. 2241 EDA 2015

Superior Court of Pennsylvania.

Submitted December 5, 2016

Filed December 22, 2017

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Kelly B. Wear, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

OPINION BY STABILE, J.:

Appellant, Eric Torres, appeals from the July 8, 2015 judgment of sentence imposing an aggregate term of 66 to 132 years' imprisonment for assault of law enforcement officer, aggravated assault, simple assault, persons not to possess firearms, firearms not to be carried without a license, carrying firearms on public streets in Philadelphia, possessing instruments of crime ("PIC"), possession of a controlled substance with intent to deliver ("PWID"), and possession of drug paraphernalia.¹ We vacate and remand for a new trial.

The trial court set forth the following facts:

On August 13, 2013, Officer William Barr of the Philadelphia Police Department was assigned to street patrol in a marked vehicle in the area of Fifth Street and Allegheny Avenue. Just before noon, Officer Barr initiated a traffic stop on a BMW, Pennsylvania license plate number JJA–951, travelling eastbound on Allegheny. Officer Barr had been traveling behind the vehicle and initiated the stop when he saw the middle brake light was not functioning. The vehicle pulled over on Fifth Street, just North of Allegheny. Officer Barr exited his patrol car and approached the vehicle, which was being driven by Appellant. As he approached, he noticed Appellant' shoulders moving back and forth.

Officer Barr explained that he had stopped Appellant for the brake light, as well as his inspection stickers, which were from New York but placed on a Pennsylvania license plate. He asked for Appellant's license and registration. Officer Barr testified that Appellant produced the documents right away, but that he appeared nervous and was looking around. Officer Barr asked Appellant if there was anything in the vehicle he should know about, but Appellant did not answer. This made Officer Barr concerned for his safety, and he opened the door and asked Appellant to step out of the vehicle. Appellant did not exit the vehicle; instead he closed the door and drove away. Officer Barr returned to his own vehicle to follow him. He still had Appellant's license and registration in his hand at this time.

Officer Barr followed Appellant on Fifth Street for about five or six blocks. Officer Barr relayed information about Appellant's flight over the radio. Sergeant Zimmerman^[2] then directed Officer Barr to terminate his pursuit due to safety concerns, as both vehicles were traveling at high speeds in a residential area. Within a few minutes, Sergeant Zimmerman met Officer Barr at Fifth and Sedgley Avenue to sign his log. At about this time, Officer Barr also received information over the radio about a crash and a disturbance at a grocery store at Fourth and Annsbury Streets. Officer Barr then traveled to the grocery store.

Officer Roberto Luciano was also on duty in the same neighborhood on August 13 and received the call about a vehicle that had fled a stop. Officer Luciano traveled to Second and Erie to attempt to intercept the vehicle. While waiting at that intersection, a 911 call reported a similar vehicle involved in an accident at Second and Bristol streets. Upon arriving at the scene, Officer Luciano observed a light-colored BMW crashed against a fence and building. The building was owned by the Richard Burns Company, a construction material recycling facility. Allen Burns, the owner of the company, was in the parking lot when he heard a screeching and "bang" of the car hitting the building. Mr. Burns saw the man in the driver's seat, later identified as Appellant, push the airbag away and climb out of the driver's side window. Mr. Burns watched Appellant take a step or two, then turn back and reach inside the vehicle. He then began running from the car as he was putting something dark in his pocket. When Officer Luciano arrived on the scene soon after, he reported over the radio that the vehicle was unattended, and the driver had fled.

Upon hearing the information broadcast by Officer Barr, Officers [Craig] Van Sciver and Raul Ortiz drove to 401 West Raymond Street to see if Appellant returned to his residence. While waiting outside the residence, they received more information from Officer Luciano regarding the crash at Mr. Burns' building. Officers Van Sciver and Ortiz began traveling toward Third and Wingohocking Streets, hoping to intercept Appellant. Officer Van Sciver testified that they were then approached by an unidentified man, who told them a man had just run into the corner grocery store at Fourth and Annsbury Streets. Upon entering the store, they saw Appellant running down an aisle toward a back access door, and gave chase. Officer Van Sciver grabbed Appellant at the steps by the door, and testified that Appellant resisted and kept his hands at his waistband.

Officers John Bucceroni and Edward Davies were in a marked police car in the area of Fourth and Annsbury when they received the radio calls regarding Appellant that day. They arrived at the Almonte Grocery store within a few minutes of receiving the call. Officer Bucceroni testified that Officer Davies entered the store first. Officers Van Sciver and Ortiz were already on the scene, and Officer Bucceroni saw them struggling with Appellant at the back of the store. Appellant appeared to be on his knees or bending over, and both hands were at his waist. The officers were trying to hold Appellant's arms. They were instructing Appellant, in both English and Spanish, to show his hands.

Officer Bucceroni testified that as Appellant struggled, he and Officers Van Sciver, Davies, and Ortiz were all attempting to get him under control. They continued to say "dame los manos" and "give me your hands." Officer Bucceroni reached for Appellant's hands, and felt a metal object he recognized as the barrel of a gun. He said "gun" to alert his fellow officers, and a few seconds later a shot was fired. He heard Officer Davies react, but did not see him, because Appellant was still struggling.

Officer Shawntai Cooper had arrived on the scene with her partner, Officer Kendall Robinson, when the other four officers were already struggling with Appellant. In the course of the struggle, she saw a muzzle flash and heard a "pop" sound. Officer Davies said "I'm shot" and grabbed his abdomen. He stumbled towards Officer Cooper and fell into her arms. With the help of Officer Barr, Officer Cooper put Officer Davies into a car and drove him to Temple University hospital.

After Officer Davies was shot, Officer Bucceroni told Appellant to give him the gun, but Appellant continued to kick and struggle against the officers. When Officer Bucceroni grabbed for the gun again, Appellant bit his wrist. When he tried to pull the gun away a second time, Appellant bit him again and drew blood. Officer Bucceroni was eventually able to get the gun from Appellant and hand it to Officer Ortiz. Appellant continued to struggle, but officers were then able to handcuff him. They attempted to escort Appellant from the store, but he continued to resist. As the officers brought Appellant to a marked police car, he kicked, and attempted to bite and head-butt the officers.

Following his arrest, Officer Luciano requested Appellant be brought back to the scene of the accident, so that Mr. Burns could identify him as the man who fled from the car crash. Appellant was brought to the scene of the accident in a police vehicle, and Officer Luciano observed him screaming and banging his head on the Plexiglas divider and on the back of the seat. Appellant was saying that if the officers took the handcuffs off, he would fight with them. They removed Appellant from the vehicle, and he began swinging his arms trying to reach his waistband, with his hands still cuffed behind his back. Mr. Burns was able to positively identify Appellant as the man who had fled the scene of the accident on his property. Before returning Appellant to the vehicle, he was patted down in the waistband area he had been reaching for, and a black holster was found clipped to his belt.

Appellant was then taken to Einstein Medical Center's emergency department. Dr. Neeraj Gupta attempted to assess any injuries following the car accident and struggle with police, but Appellant was uncooperative. Several people were required to hold Appellant down on a stretcher, and eventually leg and arm restraints were deemed necessary. Even after applying restraints to Appellant, he continued to fight and was still able to sit up. Dr. Gupta became concerned about this behavior, which included biting and spitting, and administered a sedative to calm Appellant. After obtaining vital signs and as much other information as he could from Appellant, Dr. Gupta concluded that he appeared to be intoxicated, likely due to an illegal substance. Appellant was discharged from the hospital the next day, August 14.

Officer Edward Davies testified that he had been trying to help other officers restrain Appellant when he heard a bang. He said he felt his chest and stomach get "real hot" and saw a hole in his shirt. He testified that everything was hazy and he remembered staggering towards the floor. When Officer Cooper drove him to the hospital, he recalled her telling him to keep his eyes open and stay awake.

Officer Davies testified that he spent 37 days in the hospital, and was in a medically-induced coma for three weeks. It was several months before he was able to walk normally again. At the time of trial he had five surgeries to address his injuries, and was told he would need at least one more surgery following trial. At the time of trial, Officer Davies was undergoing rehabilitation and aquatic

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