J-S50006-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSE CRUZ

Appellant No. 2676 EDA 2016

Appeal from the Judgment of Sentence April 13, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0004122-2016

BEFORE: PANELLA, J., MOULTON, J., and RANSOM, J.

MEMORANDUM BY PANELLA, J. FILED OCTOBER 06, 2017

The trial court found Appellant, Jose Cruz, guilty of possession of crack 

cocaine and sentenced him to a probationary period of three years.1 On 

appeal, Cruz challenges the sufficiency of the Commonwealth’s evidence at 

his suppression hearing and at trial. After careful review, we conclude the 

Commonwealth failed to meet its burden at the suppression hearing, and 

therefore reverse.

When reviewing a denial of a suppression motion, “we must consider 

only the evidence of the prosecution and so much of the evidence of the 

defense as remains uncontradicted when read in the context of the record as 

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1 Additional charges of possession with intent to deliver and conspiracy were 

dismissed after a preliminary hearing.
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a whole.” Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007). 

We are not bound by the suppression court’s legal conclusions and review 

the suppression court’s application of the law to the facts de novo. See 

Commonwealth v. Myers, 118 A.3d 1122, 1125 (Pa. Super. 2015).

In contrast, we defer to the suppression court’s findings of fact as it is 

in the bailiwick of the suppression court to assess the credibility of witnesses 

and the weight to be given to their testimony. See id. “It is within the 

suppression court’s sole province as factfinder to pass on the credibility of 

witnesses and the weight to be given to their testimony. The suppression 

court is free to believe all, some or none of the evidence presented at the 

suppression hearing.” Commonwealth v. Elmobdy, 823 A.2d 180, 183 

(Pa. Super. 2003) (citations omitted).

Cruz opened his suppression hearing by seeking to suppress “any and 

all physical evidence that came from [Cruz] on February 11, 2016 ... on th 

grounds – specifically narcotics on the grounds that there’s no reasonable 

suspicion to stop my client, nor reasonable suspicion to frisk my client, no 

probable cause to arrest my client and no probable cause to search my client 

[incident to any arrest.]” See N.T., Suppression Hearing, 4/13/16, at 5. In 

response to this, the Commonwealth presented a single witness, Philadelphia 

Police Sergeant Patrick Love. Sergeant Love testified he was in plain clothes 

in an unmarked police vehicle when he observed Cruz purchase crack 

cocaine from another man. See id., at 7-8. Sergeant Love “then went over 
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radio and ... notified officers of their description and – to come and stop

them.” Id., at 8 (emphasis supplied). He then testified to his experience in 

investigating narcotics and the basis of his belief the objects Cruz received 

contained crack cocaine. See id., at 9-11. The Commonwealth then rested.

At no point in the suppression hearing did the Commonwealth present 

evidence concerning the stop of Cruz. Nor did it present evidence of where 

the challenged evidence was found. In fact, the Commonwealth did not even 

present evidence of what was found.2

Most importantly, the Commonwealth did not present evidence of why

or how Cruz was searched. Sergeant Love testified that he instructed other 

officers to “stop” Cruz. This could mean that he instructed officers to 

approach Cruz and question him, or it could mean that he instructed them to 

arrest Cruz.

From this record, we conclude the trial court’s finding that Sergeant 

Love had probable cause to stop Cruz is supported by competent evidence. 

Furthermore, it was reasonable for the trial court to infer that another officer 

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2 While the Commonwealth did present evidence on these issues at the 

subsequent trial, we cannot consider this evidence in reviewing the 

suppression court’s decision to deny Cruz’s suppression motion. See In re 

L.J., 79 A.3d 1073, 1085 (Pa. 2013).
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was relying on Cruz’s statement when the officer stopped Cruz.3 Beyond this 

point, however, there is no evidence in the suppression record.

In responding to a motion to suppress, the Commonwealth bears the 

burden of proving “the constitutional rights of the accused were not violated 

by the search.” Commonwealth v. Enimpah, 106 A.3d 695, 701 (Pa. 

2014). This is true even on issues upon which the accused bears the 

ultimate burden of persuading the finder of fact. See id., at 701-702.

With this in mind, we note that the record of the suppression hearing 

does not support any finding regarding the search of Cruz or the seizure of 

crack cocaine. The investigating officer may have seen the crack cocaine in 

plain view. Or he may have recognized it during a Terry4 search. Perhaps 

the crack cocaine was found in a body cavity. The important point is that the 

record cannot legally support any of these findings. 

If the officers believed that they were justified in arresting Cruz based 

upon Sergeant Love’s instruction, any subsequent search and seizure would 

have been justified based upon our conclusion regarding probable cause. But 

there is no evidence that can support a finding that the officers, objectively 

or subjectively, arrested Cruz before searching him. Thus, any conclusion 

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3 The investigating officer was justified in relying on Sergeant Love’s radioed 

order, even in the absence of corroborating information. See 

Commonwealth v. Anthony, 97 A.2d 1182, 1187 (Pa. Super. 2009).

4 Terry v. Ohio, 392 U.S. 1 (1968)
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regarding the lawfulness of the search and seizure can be based only upon 

pure conjecture.

Under these circumstances, the Commonwealth failed to carry its 

burden of establishing that Cruz’s constitutional rights were not violated by 

the search and seizure. We must therefore reverse the trial court’s order 

denying Cruz’s suppression motion, which necessarily reverses the judgment 

of sentence in its entirety.

Judgment of sentence reversed. Appellant discharged.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2017