IN THE SUPERIOR COURT OF PENNSYLVANIA PHILADELPHIA DISTRICT

_____________________________________________________________________ No. 2258 EDA 2001

Philadelphia, 2001 COMMONWEALTH OF PENNSYLVANIA Appellee, vs. VINCENT SULLIVAN Appellant. _____________________________________________________________________ Appeal from the Order dated October 4, 1999 in the Court of Common Pleas of Philadelphia County at No. 9904-0888 (Lazarus, J.) _____________________________________________________________________

INITIAL BRIEF OF APPELLANT AND REPRODUCED RECORD
_____________________________________________________________________

ROBERT W. MUENCH Attorney-at-Law 9012 Cargill Lane Philadelphia, PA 19115

(215) 969-1540 Counsel for Appellant TABLE OF CONTENTS e I. II. III. IV. V. VI. VII. VIII. TABLE OF AUTHORITIES................................................................................ STATEMENT OF JURISDICTION.................................................................... ORDER OR OTHER DETERMINATION IN QUESTION............................... STATEMENT OF THE QUESTIONS INVOLVED.......................................... STATEMENT OF THE CASE............................................................................. Pag 3 5 6 7 8

SUMMARY OF ARGUMENT............................................................................. 10 ARGUMENT......................................................................................................... 12 DISCUSSION OF CASE LAW............................................................................. 14 1. 2. 3. 4. The evidence was insufficient to support the verdict of guilt.............. 14 The verdict was against the weight of the evidence........................... The police lacked probable cause to arrest defendant........................ Trial counsel was ineffective for failing to litigate suppression issues............................................................................................... 14 15 18 21 22

IX. X. XI.

CONCLUSION...................................................................................................... EXHIBITS OR OTHER ATTACHMENTS........................................................

CERTIFICATE OF SERVICE.............................................................................. 23

Banks. Anderson. United States.2d 752.Super.S. 16 Commonwealth v. 338 U. 664 A.2d 84 (Pa. 361 U. Albino. 658 A. 455. 806 (1996) 16 STATE CASES: Commonwealth v. 540 Pa.S. 517 U.TABLE OF AUTHORITIES FEDERAL CASES: Brinegar v.2d 504 (Pa. 1995) Page 18. 302 A. 160 (1949) Page 16 Henry v. 19 Commonwealth v. United States. 453. 1973) 15.S. United States. 752-753 (1995) . 98 (1959) 16 Whren v.

2d 178 (Pa.D. 18 In the Interest of C. 1995) 19 Commonwealth v. 729 A. Johnson. Jarecki.2d 391. 394 (1973) 17 18 .17. 1999) 18 Commonwealth v. 478 Pa.2d 678 (Pa. 516 A. Johnson. Jackson.. 500 Pa. 1986) Commonwealth v. Kablitis. Super.2d 1200 (Pa. 609 A.2d 1313 (1978) 14 17 Commonwealth v. 321. 454 Pa. 23. Lawson. Burnside. Super. Greber. 14 Commonwealth v. LEXIS 1347 .2d 70 (Pa. 63.6/4/99 Commonwealth v.2d 149 (1983)). Super. 485 A. 456 A. 469.2d 1102 (1984) Commonwealth v. 17.2d 194 (Pa. Ferguson.Super. 1999 Pa. 29. 309 A. 1992) 14 14 Commonwealth v. 664 A. 625 A. 506 Pa. Super 1993) 13. 385 A. 18 Commonwealth v.

18 Commonwealth v. 457. Richards. 315. 1994) 14 14 19 Commonwealth v.2d 228 (1983) Commonwealth v. Queen. 503 Pa. 469 A. 664 A. 201.2d 154 (Pa.2d 63 (Pa.2d 132 (1983) Commonwealth v.2d 443 (1994) 17 Commonwealth v.Super.Super. Macolino.2d 520 (Pa. 327 A. 536 Pa. 485. 455. 642 A. Lewis. Lopez. Super. (No. Sample. 501 Pa.Commonwealth v.2d 799 (1983) 16 . Thomas Myers. 1995) 19 Commonwealth v.2d 63 (1974) Commonwealth v. Super. Madison. Super. 468 A. 458 Pa. 462 A. Pa. 576 A. 639 A. Malson. 1990) 16 Commonwealth v. 321 Pa. J A01026/99. 68 Philadelphia 1998. 1999) 17.

Shaver. 501 Pa.2d 742 (1983)) Commonwealth v.S. 460 A. V 19 U. amend.2d 313. Shaw. VI .2 (Pa. Const.Super. amend. 383 A. Const.15 Commonwealth v. Const. Williams. 16 STATUTES: U. 476 Pa. 16 Commonwealth v.S. amend.S. 317. 543. 551 A. n. 1988) 15.2d 496 (1978) 14 15. 167. IV Page 19 U.

art I. art I.S. Const. ' 8 19 PA. amend.S. Const. Const. Const. amend. ' 9 .19 U. VIII 19 U. XIV 19 PA.

'1330 (The Controlled Substance. .3 (regarding ADiligence@) Rule 3.S. 15. 1988) 7. '1316 (The Controlled Substance. Cons. 1999. 9. Stat. 15. 16 7. Drug. Jurisdiction to hear and decide this Appeal is conferred on the Superior Court of Pennsylvania pursuant to 42 Pa.C. Stat.1 (regarding AMeritorious Claims and Contentions@) 19 19 19 STATEMENT OF JURISDICTION This is an Appeal from a Judgment of Sentence entered by the Court of Common Pleas for Philadelphia County on October 4. '341. 14. 14.1 (regarding ACompetence@) 19 Rule 1. Drug. Cons. Device and Cosmetic Act) Rules of Professional Conduct (Pennsylvania. 9. Device and Cosmetic Act) 35 Pa.19 35 Pa. 16 Rule 1.

R. .ORDER OR OTHER DETERMINATION IN QUESTION A copy of the opinion of the Court of Common Pleas for Philadelphia County is attached hereto as Exhibit AC@ (Reproduced Record @ R. 24).

] 2.] Was defendant=s trial counsel ineffective for not litigating routine suppression issues pre-trial? [Answer in the affirmative. 4. even though the verdict went against the weight of the evidence? [Answer in the affirmative.STATEMENT OF THE QUESTIONS INVOLVED 1. . Did the trial court err when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver.] Did the trial court err when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver. two offenses against the Commonwealth of Pennsylvania=s Controlled Substance Act. 3. two offenses against the Commonwealth of Pennsylvania=s Controlled Substance Act. even though the evidence was insufficient to support such a verdict? [Answer in the affirmative.] Did the trial court err when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver. even though the police lacked probable cause to arrest defendant in the first place? [Answer in the affirmative. two offenses against the Commonwealth of Pennsylvania=s Controlled Substance Act.

. at approximately 5:45 p.m. currency at which time defendant walked approximately twenty feet into a nearby alley. Officer Arnold alerted fellow officers to what he .S. whereupon the female gave defendant an undetermined amount of U..S. He then returned to the female and handed her the items he had just retrieved from the wall. reached for the top of the cement wall and retrieved additional items. Officer Arnold witnessed Appellant (hereinafter. currency. Officer Arnold observed a black female approaching the defendant. Athe defendant@ or ADefendant@) being approached by a black male who engaged the defendant in a brief conversation. reached into the top of a cement wall and retrieved what appeared to Officer Arnold to be a napkin inside a cup. The black male proceeded to hand the defendant an unknown sum of U. At approximately 5:50 p. Defendant again proceeded to the alley. he set up a surveillance from inside a parked vehicle in the area of Somerset and Garnet Streets in Philadelphia. to whom he handed the items he had retrieved from the cup. Upon witnessing these two transactions.STATEMENT OF THE CASE Officer Wayne Arnold. They engaged in a brief conversation. a member of the Philadelphia Police Department testified at trial as follows: On April 9. Approximately five to ten minutes later. Defendant was observed removing small objects from that cup and returning to the black male.m. 1999.

. The contents of the bags seized were confirmed by scientific analysis to contain crack cocaine. eventually finding a clear plastic baggie containing twenty-seven smaller plastic packets alleged to contain crack cocaine. Officer King testified that he recovered only Eighteen Dollars from the defendant post-arrest. Sergeant Walker=s testimony was stipulated. Officer Frank Hayes testified that at Officer Arnold=s direction. based upon the information received from Officer Arnold. he went to a cinder block wall and searched the area. He was the officer who arrested the male involved in the first transaction. the defendant was convicted of both offenses. Officer Lukaitis further testified that he recovered one plastic Ziploc bag from the female containing what appeared to be crack cocaine. The Sergeant also recovered one plastic Ziploc bag from that male containing what appeared to be crack cocaine.m. this appeal followed. by the same Sergeant Walker who arrested the black male twenty minutes earlier.had just seen. After several procedural delays. Defendant received 112 to 23 months county jail time by the court. After a waiver trial. Defendant was arrested at approximately 6:10 p. Sentencing occurred immediately. based upon the information received from Officer Arnold. Officer Joseph Lukaitis testified that he received a radio call that a female had Ajust bought narcotics@ and so arrested the female involved in the second transaction.

Defendant=s trial counsel was ineffective in the representation of him as the failure of counsel to litigate evidentiary claims significantly impacted Defendant=s likelihood of success at trial. That individual then hands the items to the other individual and they depart.SUMMARY OF ARGUMENT Appellant asserts four areas in which the trial court erred. . This was accomplished by one individual walking into an alley. finding it almost immediately and then exiting the alley. This scenario. looking for something. the evidence adduced at trial was insufficient as a matter of law to find defendant guilty of possession of a controlled substance or guilty of possession with intent to deliver a controlled substance. in essence. Fourth. the surveilling Officer could only observe what appeared to him to be a commercial transaction on the street. And it is this scenario from which the court then finds sufficient evidence to convict Defendant of the charges lodged against him. This allows the police to take a giant leap and conclude that their suspicions were correct. is how the officers built their probable cause to arrest the individuals. that the verdict of the trial court went against the weight of the evidence. Third. that there was an illicit Adrug deal@ which just occurred and now they are able to arrest all other person(s) involved. Add to this mixture the failure of defense counsel to attempt to suppress this evidence. two people meet. Second. Officers then stop one of the two departing individuals (either while that person is on foot or in an automobile) and find a very small quantity (one packet) of narcotics on that person. they exchange something (money for items) and depart one another.e. First. and a miscarriage of justice has resulted. Defendant maintains that factually. that the police lacked probable cause to arrest the defendant and search his person for contraband.. i. And finally.

the officers assumed that a drug transaction had taken place since Officer Lukaitis testified that he received a radio transmission that Aa black female wearing a green and black sweater. those intending to keep the police at arms length from intruding into our lives and commercial affairs unless they have Aprobable cause to arrest@. and a judgment of acquittal entered on behalf of Appellant by this Honorable Court. Alternatively.S. the verdict of the Court of Common Pleas for Philadelphia County should be reversed.One cannot view this as a Astrategic@ or Atactical@ move on the part of defense counsel. he certainly was in no position to describe with particularity what any of the other items they held in their hands were. a new trial should be ordered and appropriate evidentiary hearings held. If Officer Arnold could not see the denominations of U. currency the individuals were holding from his vantage point. at that juncture. it would have been practically impossible to tell just what the items were in the defendant=s hand. black jeans had just bought narcotics@. and a lack of probable cause on the part of the police to arrest anyone here is clear from these facts. The testimony of the officers is practically Acanned@. ARGUMENT . Add to that the fact that this was on a busy city street during hours when stores were open for business nearby. However. Hence. case after case routinely sounds remarkably the same as this one and the judges of the various courts are savvy enough to recognize the truth when they see or hear these stories. evidence acquired in such a Agarden variety@ manner by police is routinely suppressed due to violations of the constitutional protections citizens of this Commonwealth are supposedly afforded. without more proof. since the above-referenced Ascenario@ gets played out dozens of times each day in court rooms all throughout this Commonwealth. let alone whether or not the black female had just purchased illegal drugs. In this particular case. Therefore.

he stopped the black female (a Ms.m. and then five to ten minutes later did the exact same thing and handed more items to another individual (a black female). In summary. Officer Lukaitis testified that. matches or lighters. 1999. Sergeant Walker testified that he arrested the black male (a Mr. 4). and found ONE clear plastic packet of suspected crack cocaine (not several packets). lines 19 to 24). went into the alley about three to four feet. He then took those items and handed them to one individual (a black male) at approximately 5:50 p. based on information received from Officer Arnold. 9).. such as chewing gum. Officer Hayes stated that he went to the alley at Officer Arnold=s direction. R. etc. or shortly thereafter. (Trial Transcript of October 4. lines 16 to 18). Reginald Gonzalez) from information received from Officer Arnold around 5:50 p. (Reproduced Record @ R. both of whom were quickly stopped by police. the testimony of Officer Arnold clearly indicates that he observed the defendant walk twenty feet into an alley. and recover a cup with a napkin inside of it (a napkin which contained small objects in side of it). (Trial Transcript of October 4. that the defendant sold or even possessed narcotics. R. lines 17 to 21).m. Notes of Testimony at page 8. alleged crack cocaine and then arrested her. reached up on top of a CINDER BLOCK wall (not a cement wall as Officer Arnold described it to be) and had to Arummage around@ . and recovered from her jacket pocket ONE clear Ziploc packet with a chunky white substance. (Trial Transcript of October 4.. Notes of Testimony at page 18. This is in direct contradiction to Officer Arnold=s testimony that SEVERAL objects were handed to these individuals by the defendant. Deborah Johnson) at or around 5:59 p. at trial. 6). Furthermore. searched and arrested.m. 1999. (Reproduced Record @ R. there is no evidence of any inventory of the personal effects of these two individuals to see if they had anything else in their possession when stopped by police. cigarettes.Simply stated. the Commonwealth failed to prove. reach up on top of a CONCRETE wall. Notes of Testimony at page 31.. (Reproduced Record @ R. R. 1999. beyond any reasonable doubt.

R. Finally. R. DISCUSSION OF CASE LAW 1. the officer only has hunches and suspicion guiding the other officers. (See.. Notes of Testimony at page 11. Notes of Testimony at page 31... (Trial Transcript of October 4. just Aconsistent with@ one another. Sergeant Walker then arrested the defendant at 6:10 p.. 7). It is here that the factual accuracy of what transpired breaks down. all off-white. Additionally. line 12 through page 14. This is obviously NOT a cup with a napkin inside as Officer Arnold described. 4-5). (Reproduced Record @ R. lines 8 through 22). and Officer King found Eighteen Dollars on the defendant post-arrest. Officer Arnold is the sole. if he could be called that. (Reproduced Record @ R. lines 6 through 24).. Burnside.. probably more acutely so than a lay person might be). Officer Arnold testified that the crack cocaine (and the plastic bags contained therein) were Aconsistent with the packets Officer Hayes recovered@ (the evidence located atop the cinder block wall.m. Commonwealth v. 9). Super 1993) ). 625 A. The trial court erred when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver.e. (Trial Transcript of October 4. (Reproduced Record @ R. Without witnessing more. (i. R. he is a Atrained@ observer. Having placed his hand into one hole a couple of inches. line 9). he found a stash of narcotics .several holes which had leaves and debris all around them. (Trial Transcript of October 4. Although his position as a police officer may instill a certain degree of trustworthiness in his observations. Finally.Aa clear plastic baggie containing 27 smaller clear plastic packets containing an off-white chunky substance alleged to be crack cocaine@. 1999.. 1999. There is absolutely no testimony from anyone stating that the plastic bags were even the same as one another. chunky and in a small plastic bag). 1999. he was not offered as an expert witness and the information he passed along to other officers was hearsay.2d 678 (Pa. uncorroborated Ainformant@. two offenses . Notes of Testimony at page 20.

also. 460 A. the trial court shall not be reversed on appeal. even though the evidence was insufficient to support such a verdict. 201. in reviewing the sufficiency of the evidence. (See Commonwealth v. Macolino. Super. (See. the police had only guess work to link him to the sale of narcotics (as described above) and that suspicion. 506 Pa. Additionally. Also. Ferguson. Shaw.2d 1102 (1984). 500 Pa. our appellate courts have consistently held that the trial court is afforded great deference in its factual findings.2d 149 (1983)). 469. 516 A. Commonwealth v. 1986). 321.Super.2d 194 (Pa. no motions of any kind were made on behalf of the defendant. 501 Pa. 462 A. Commonwealth v. 456 A. the trial court must review the evidence presented and all reasonable inferences taken therefrom in the light most favorable to the Commonwealth as the verdict winner. Madison. 485 A. 609 A. Jarecki. 167.2d 1002 (1984). 501 Pa. as the Pennsylvania Supreme Court has consistently held. But it is these errors of law and/or abuses of discretion which warrant reversal. 383 A. 485.2d 132 (1983). Shaver. the trier of fact should reasonably have determined that all elements of the crime have been established beyond a reasonable doubt. In the event that a determination is made by the court that the evidence offered at trial was not sufficient to sustain the verdict. Commonwealth v. 1104.against the Commonwealth of Pennsylvania=s Controlled Substance Act. 476 Pa. not enough. Jackson. The government needs to show more. guesswork or hunches are. Furthermore.2d 742 (1983)). Commonwealth v. Absent an abuse of discretion or a clear error of law. Jackson. Commonwealth v. Jackson. Commonwealth v. (See. 1992). Looking also at the evidence presented against the defendant in the instant case.2d 496 (1978). 485 A.2d 228 (1983). When viewing whether the evidence supports a verdict. Commonwealth v. In the case at bar. 543. a motion in arrest of judgment must be made and granted. 469 A. 503 Pa.2d at 1103.2d 1200 (Pa. 485 A. sustaining a motion in arrest of judgment discharges the defendant. . This alone is insufficient as a matter of law to convict a defendant. Kablitis.

In the instant case. the evidence must accumulate against the defendant. Williams. 551 A. Anderson. 302 A. As the lack of proof indicates. Super. In reviewing the weight of the evidence.Commonwealth v. even though the verdict went against the weight of the evidence. the police have only guess work to link him to the sale of narcotics (as described above) and that suspicion. two offenses against the Commonwealth of Pennsylvania=s Controlled Substance Act. also. the trial judge apparently abused her discretion and/or erred in her application of facts to law. it is clear that a new trial is essential. facts and inferences derived therefrom must accumulate." Applying this standard (similar to the standard discussed earlier concerning sufficiency of evidence) to the case at bar. 457. guesswork or hunches are. as the Pennsylvania Supreme Court has consistently held. and so the conviction must be reversed.2d 313. Commonwealth v. 468 A. Commonwealth v.2 (Pa. 476 Pa. Looking at the evidence offered against the defendant. much deference is given to the trial court. not enough. 1988). Commonwealth v. It is rare that a single fact can convict a person. (See. However. or Aadd up@ against a defendant before a verdict can be sustained. 543. though not inconceivable. 383 A. Shaw. examining the issue of the weight of the evidence. the evidence is insufficient to sustain the court=s findings.Super. 2. 321 Pa. again.2d 496 (1978). "[t]he standard used in making this determination is not whether the court would have decided the case in the same way. Williams. again.Super. n.2d 504 (Pa. 317. In these rather routine Acurbside drug deal/police surveillance@cases. . 1973)). The trial court erred when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver.2d 799 (1983). but whether the verdict [was] so contrary to the evidence as to make the award of a new trial imperative so that right may be given another opportunity to prevail. Sample. As set forth in Commonwealth v.

even though the police lacked probable cause to arrest defendant in the first place. it is not whether the particular police officer had the required belief of the wrongful conduct. Commonwealth v. when hearsay information is relied upon by police officers. Whren v. Commonwealth v. In justifying the particular intrusion. The trial court erred when it found the defendant guilty of possession of a controlled substance and possession of a controlled substance with intent to deliver.Super.S. 806 (1996). the facts and circumstances within the officer=s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent person in believing that the person arrested had or was committing an offense or that there was contraband. 1973)). 302 A. Whether probable cause exists to arrest or search an individual depends on whether. Lewis. two offenses against the Commonwealth of Pennsylvania=s Controlled Substance Act. The informant must have a basis for his conclusion and the facts must establish probable cause and be transmitted to the officer who finally acts on the information. United States. Every case must be decided on its own particular facts. the police officer must be able to point to specific and articulable facts. in commenting about the . 315. Further.2 (Pa. That is. the information on which action is predicated must be specific. weapons or other evidence on the premises. Brinegar v. Richards. Anderson.g. 3. rather.Super. factual situations. United States.551 A. 639 A.S. United States. 458 Pa.S.2d 63 (1974)). it must be both reliable and factual. Commonwealth v. 1990) ). 327 A. Finally. Queen. 455. Obviously. 576 A. Commonwealth v. Also. 517 U. 361 U. it is whether a prudent person under the Atotality of the circumstances@ would have the requisite belief of wrongful conduct..2d 63 (Pa. Henry v.2d 504 (Pa.Super.2d 443 (1994)). 338 U. 536 Pa. 1988). 160 (1949). Suffice it to say that the standard is an objective one. the Pennsylvania Supreme Court. at the moment of arrest or search. (See. (See. e. n.2d 313. 317. (See. 98 (1959). this definition is just the starting point in deciding concrete.

The defendant was followed. In the fairly recent case of Commonwealth v. Pa. The conduct of the police in the instant appeal is a case of the Aends justifying the means@. 29.@ The officer then saw the defendant leave in his automobile. 1999). not the other way around. Police arrested two individuals for narcotics violations on two different dates..2d 391. Commonwealth v. Thomas Myers. 394 (1973). The search uncovered two plastic packets of . He then placed it in his pocket. Awalked up.@ (Emphasis added). 63. time and time again has routinely held that such conduct is unacceptable in cases where police intrusion into the life of a citizen is at issue. 478 Pa.m. J A01026/99. Commonwealth v. entered. I believe I saw something in his hand but. 309 A. police set up a surveillance of a residence which was the subject of anonymous complaints of drug trafficking. police observed a man entering the premises and then leaving two minutes later. On a subsequent date.Super. At approximately 6:30 p. pulled over. (No. this court reversed a lower court ruling denying a defendant=s suppression motion. 68 Philadelphia 1998. knocked on the door. This Honorable Court.2d 1313 (1978)). he exited. the defendant was observed by a surveillance officer who described the defendant as having. at approximately 5:00 p. it was closed. Lawson. 23. (See.m. In fact. Greber. search and seizure. In this case. The officer further testified that a search was made of the same pocket the defendant had placed his hand in after emerging from the residence. removed from his vehicle and patted down. Approximately two minutes later.sufficiency of factors giving rise to probable cause has stated: AEvery commercial transaction between citizens on a street corner when unidentified property is involved does not give rise to probable cause for an arrest. 385 A. the police must first establish probable cause to arrest. 454 Pa. even prior to searching a person for contraband. again. our constitution safeguards us against unwarranted arrest.. Approximately one hour later a woman entered this house and quickly left.

1995). Therefore.. Super. the officer observed the defendant with a handful of small blue plastic packets of the type he knew from his experience as being commonly packaged for cocaine use.2d 752.D. Super. 455. Johnson. LEXIS 1347 . Commonwealth v. 453.2d 178 (Pa. 1994). 664 A. Commonwealth v. In the Interest of C. Myers= hand. Super.2d 678 (Pa. the drugs found should have been suppressed based on this illegality. 658 A. Again. (See also. The court also rejected the Commonwealth=s proposition that under Commonwealth v.cocaine. In the Myers case. 1999 Pa. Defendant=s trial counsel was ineffective for not litigating routine suppression . 664 A. Finally. the subsequent frisk of the defendant was illegal and not justified since there was neither evidence nor testimony that the defendant was Aarmed and dangerous. The officer later testified that the search had been conducted for weapons. Malson. Banks.2d 84 (Pa. 752-753 (1995). Super. Super 1993). Commonwealth v. a veteran officer can identify illegal drug activity sooner than a layperson. the court stated that although the police had a reasonable suspicion to stop the defendant. 1995).2d 70 (Pa. In Burnside. 1995). Johnson. the court stated that there was no recognition factor involved as the arresting officer was not able to ascertain whether the defendant was holding anything at all. The Superior Court held that the above facts alone do not constitute probable cause since the officer did not observe the specific item or items allegedly contained with Mr. 642 A. Commonwealth v. 1999). Albino. 540 Pa.2d 154 (Pa. and Commonwealth v.2d 520 (Pa. Lopez. Additionally. 625 A. the court opined that the Burnside case essentially pertains to drug dealers as opposed to the Myers case which dealt with an alleged buyer. Burnside. the arrest should have been deemed unlawful as it was lacking in probable cause. applying this standard to the case at bar.@ or that his clothing had any unusual bulges or even that the defendant made any furtive movements giving rise to the officer=s suspicions that the defendant was armed and dangerous. 729 A. 4.6/4/99. Commonwealth v. 664 A.

1. Certainly. motion to suppress. motion in arrest of judgment. Notably absent from the record are ANY motions made on behalf of the defendant (i. Fifth. a new trial is warranted in order to correct the egregious mistakes of counsel made in the first trial.. thus requiring a Nunc Pro Tunc grant of an appeal by way of the Post-Conviction Relief Act.e. at the very least. It would be one thing to lose at trial and then claim ineffectiveness as a tactical matter . but failed to file a timely appeal brief. such a lack of attention to this case was evidenced by defense counsel that counsel not only failed to file any post-verdict motions. post-verdict relief/post sentencing relief.1 (regarding AMeritorious Claims and Contentions@) (particularly by not investigating and pursuing meritorious claims/motions on behalf of his client). the Defender=s Association of Philadelphia has Aboiler-plate@ (or Acanned@) motions that can be filed. 36-40). Litigating motions of Asignificant arguable merit@ is a matter of Aroutine@ for experienced public defenders and they are not normally afraid to do so. Reproduced Record @ R. Eighth and Fourteenth Amendments to the United States Constitution and/or Article I. R. (See true and correct copy of APetition for Post-Conviction Relief@ attached hereto as Exhibit AE@. however. wherein defense counsel admits in paragraph 5 of a petition made to the court that he was ineffective in his representation of Appellant (Reproduced Record at pg.1 (regarding ACompetence@). motion for directed verdict. etc.). currency found. At the very least. Sections 8 and 9 fo the Pennsylvania Constitution. the burden lies with the Appellant to make out this claim.. counsel violated Appellant=s rights as guaranteed under the Fourth. The evidence now presented to this Honorable Court.S.. Counsel also breached his ethical duties to Appellant under the Rules of Professional Conduct applicable to attorneys licensed to practice within this Commonwealth. As a consequence of such failure by trial counsel to even attempt to suppress the narcotics and/or U.3 (regarding ADiligence@) and 3.issues pre-trial. In fact. Obviously. insurmountably supports the ineffectiveness claim. specifically Rules 1. Sixth. 37).

and NOT from incompetence.for purposes of appeal. CONCLUSION Wherefore. evidence and proof. Appellant should be awarded a new trial and. as necessary. Alternatively. But this case demonstrates a total Adropping of the ball@ by the public defender regarding this client. the trial court=s verdict of Guilt with respect to Appellant. He must not be caused to suffer as a result. then he wins or loses legitimately on the issues. for all the foregoing reasons. If given an new trial with experienced trial counsel and he wins or loses. an evidentiary hearing in order for new counsel to properly litigate suppression issues and any disputed factual . Vincent Sullivan should be reversed and a judgment of acquittal entered by this Honorable Court.

Respectfully submitted.. 2001 (R.. 15-23) Opinion of Lazarus. PA 19115 (215) 969-1540 COUNSEL FOR APPELLANT Dated: _____________. 20__ EXHIBITS OR OTHER ATTACHMENTS EXHIBIT AA@: EXHIBIT AB@: EXHIBIT AC@: EXHIBIT AD@: Brief REPRODUCED RECORD (R. MUENCH Attorney-at-Law 9012 Cargill Lane Philadelphia. Philadelphia County. pp.R.) Trial Transcript of October 4. dated October 2. 1999 (Min-U-Script version) (R.Philadelphia Court of Common Pleas and Pennsylvania Superior Court (R. ______________________________ ROBERT W. 24-34) Order (per curiam) of the Pennsylvania Superior Court Dismissing Appellant=s Appeal for Counsel=s Failure to File a .. ESQUIRE ROBERT W. R. 1-14) Dockets . pp. J. R. Court of Common Pleas.. pp. R.claims. MUENCH.

J.. filed July 30. 2001 (R. 2001 (R. PA 19102 . pp.. R. 36-40) Order of Lazarus. 2000 (R. R. Catherine Marshall (215) 686-5730 Chief. dated July 18. via first class U.. Mail. 2001 Granting Appellant=s Post. EXHIBIT AG@: EXHIBIT AH@: CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on January __. dated June 4. R. Court of Common Pleas. pg.. Philadelphia County. a true and correct copy of Appellant=s Initial Brief and Reproduced Record in the matter stated herein was served on the following person.Conviction Relief Act Appeal and Permitting a Nunc Pro Tunc Appeal to the Pennsylvania Superior Court (R. as follows: Service by first class mail addressed as follows: Ms. dated August 10.S. 41) Appellant=s Nunc Pro Tunc Appeal (w/ attachments). 35) EXHIBIT AE@: EXHIBIT AF@: Petition for Post-Conviction Relief . pp. pg. 20__. R..For Appellant. Appeals Unit Philadelphia District Attorney=s Office 1421 Arch Street Philadelphia. 42-53) Statement of Matters Complained of.

(Counsel for Appellee) _ ______________________________ ROBERT W. MUENCH Attorney-at-Law 9012 Cargill Lane Philadelphia. Attorney Identification No. ESQUIRE Pa. MUENCH.: 57491 ROBERT W. PA 19115 (215) 969-1540 COUNSEL FOR APPELLANT .

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