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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
FRANK ROSCOE,
Appellee No. 751 EDA 2014
Appeal from the Order entered February 7, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0007071-2013
BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 26, 2014
The Commonwealth of Pennsylvania (Commonwealth) appeals from
the February 7, 2014 order which granted the motion to suppress filed by
defendant Frank Roscoe (Roscoe). We reverse and remand for further
proceedings consistent with this memorandum.
The trial court summarized the facts of the case as follows.
On April 25, 2013, at 9:15 p.m., Officer Matthew York,
assigned to the South Gang Task Force, was on duty with his
partner, Officer Mergiotti, patrolling the area of 1900-2000
Gerritt Street in Philadelphia in a marked patrol vehicle when he
observed [Roscoe] and an unidentified black male engaged in a
(150) feet away. Officer York, who testified that he had been a
police officer for three and one-half years and had participated in
hundreds of narcotics arrests, approached [Roscoe] with his
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-S59031-14
partner. As they did so, Officer York saw [Roscoe] reach into his
pants in the groin area and remove a small, black, opaque
plastic bag from it. Officer York then observed [Roscoe] reach
into the bag and[,] using his thumb and forefingers, he appeared
to pull small objects out of it. At the time, the other male was
holding U.S. currency.
Officer York conceded that he did not see a small object,
forefinger, that there were small objects in the bag. Officer York
further admitted that he observed nothing being passed between
[Roscoe] and th
Officer York further testified that at some point both men
turned, and walked away. When they did so, Officer York saw
[Roscoe] stuff the black bag down his pants and head westbound
on the 2000 block of Gerritt. The other male crossed the street
and continued down the 2000 block of Gerritt with a five dollar
bill in his hand.
Officer York explained that he stopped [Roscoe] at this
time ba
surveillance, and because of where he stuffed the black plastic
experienced with how narcotics are packaged and sold. When
questioned on the reason for his belief that a narcotics
transaction was occurring, Officer York stated:
The fact that - how he was holding the objects,
place for people to hide the narcotics because
male had [a] $5 bill in his hand and they were in
close conversation. And in addition to that, the
reaction to when they noticed us, the police, as we
approached. Both of them quickly turned and tried
to walk away as he concealed the item in his groin
area.
After Officer York stopped [Roscoe], he searched him and
recovered the plastic bag from [his] groin area which, upon
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inspection, was found to contain fifteen small purple Ziploc
baggies containing what testing later revealed to be crack-
cocaine and one small plastic bag containing several new and
unused purple Ziploc baggies. A razor blade and ninety dollars
t. All
recovered items were placed on a property receipt.
Suppression Court Opinion, 6/2/2014, at 2-4 (footnote and citations to the
record omitted). Roscoe moved to suppress the recovered evidence. After
a hearing, the suppression court granted the motion. The Commonwealth
timely filed a notice of appeal1 and a statement of errors complained of on
appeal.
hundreds of narcotics arrests, recognized a probable drug transaction
3.
tion mindful of the following.
When the Commonwealth appeals from a suppression order, this
Court follows a clearly defined scope and standard of review.
together with the evidence of the prosecution that, when read in
the context of the entire record, remains uncontradicted. This
Court must first determine whether the record supports the
factual findings of the suppression court and then determine the
____________________________________________
1
The Commonwealth has certified that the suppression order substantially
handicaps the prosecution, making this an interlocutory appeal as of right
under Pa.R.A.P. 311(d).
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reasonableness of the inferences and legal conclusions drawn
from those findings. In appeals where there is no meaningful
dispute of fact, as in the case sub judice, our duty is to
determine whether the suppression court properly applied the
law to the facts of the case.
Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.
2013) (quoting Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super.
2013)) (internal quotation marks and citations omitted).
Here, the facts are not in dispute, as only one witness (Officer York)
testified at the suppression hearing, and the suppression court found his
testimony credible. See
after Roscoe was arrested and searched incident to that arrest, rendering
probable cause the required constitutional standard. See
Thus we are presented solely with the legal question of whether the
facts recited by the trial court, quoted above, give rise to probable cause.
Narrowing the issue further, the Commonwealth, Roscoe, and the
decision in Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009).
In Thompson, the Court summarized the facts at issue as follows.
On January 21, 2005, in the evening, Philadelphia Police
Officer Orlando Ortiz was on duty in the 2400 block of Leithgow
Street. Officer Ortiz knew the neighborhood as a high crime
area in which narcotics, and specifically heroin, regularly were
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sold. The area was designated by the Philadelphia Police
Officer Ortiz, a nine-year veteran of the police force, and his
partner, Officer Correa, were in plainclothes and driving an
unmarked vehicle. Officer Ortiz saw a car parked by the
sidewalk and observed Appellant standing in the street by the
male driver some money and saw the driver give Appellant a
small object in return. Based on what he saw on the street and
what he knew, including the fact that he had made several
hundred narcotics arrests of this very type, Officer Ortiz believed
the men were engaged in a drug transaction. Officer Ortiz
stopped Appellant and recovered from his pocket a packet of
heroin.
Id. at 930. The Court then examined relevant precedent.
In [Commonwealth v. Lawson, 309 A.2d 391 (Pa.
1973)], police observed the appellant as he stood on the street
and received currency from individuals to whom he handed small
objects that he retrieved from his wife. After observing three
such transactions, police arrested the couple, who ultimately
faced conspiracy and narcotics sales charges. In response to a
claim that police lacked probable cause to arrest, the Lawson
Lawson Court concluded that those
circumstances amply supported probable cause.
The time is important; the street location is
important; the use of a street for commercial
transactions is important; the number of such
transactions is important; the place where the small
items were kept by one of the sellers is important;
the movements and manners of the parties are
important. Considering the facts and circumstances
in their totality, we conclude that the officers acted
as prudent men in believing that some type of
contraband was being sold.
In [Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995)],
decided over twenty years after Lawson, this Court considered
isolated exchange of some currency for some unidentified item
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sufficient to establish probable cause where the suspect also fled
from police. The Banks Court held that such circumstances fell
Banks opinion
gave few details on the specific circumstances of that case, the
ing rise
where a trained narcotics officer observed either drugs or
containers commonly known to hold drugs ... a case where the
police observed multiple, complex, suspicious transactions ...
[or] a case in which the police officer was responding to a
[Commonwealth v. Dunlap, 941 A.2d 671 (Pa. 2007),]
-the-street
drug trade. In Dunlap, Philadelphia Police Officer Devlin, a five-
year veteran of the police force and a nine-month member of the
drug strike force, observed the suspect on a Philadelphia street.
Officer Devlin, who had previously conducted about fifteen to
twenty narcotics arrests in the area, testified that the
engaged in a brief conversation with another man to whom he
handed money and from whom he received small objects in
return. Based on his experience and beliefs, Officer Devlin
concluded that he had witnessed a drug transaction and so he
drug charges and, ultimately, a pre-trial motion to suppress the
evidence based on lack of probable cause.
Id. at 932-34 (footnote and internal citations omitted).
The Thompson Court thoroughly examined the determinations of the
suppression court and Superior Court that the evidence was sufficient to
establish probable case, as well as the majority and concurring opinions of
the Pennsylvania Supreme Court that Officer Devlin lacked probable cause to
believe that Dunlap had committed a crime. The disagreement in the
Supreme Court was over whether police training and experience was to be
considered as a factor in the probable-cause analysis. The Thompson Court
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then adopted the co
Id. at 935 (quoting Dunlap, 941 A.2d at 679 (Saylor, J., concurring).). The
Court offered its holding with the following proviso:
an explanation of their specific application to the circumstances
Dunlap majority itself observed
cannot simply conclude that probable cause existed based upon
nothing more than the number of years an officer has spent on
the force. Rather, the officer must demonstrate a nexus
between his experience and the search, arrest, or seizure of
evi
Id. at 935 (internal citations omitted).
Applying this law to the facts of the case before it, the Thompson
Court held as follows.
The evidence at the suppression hearing established that Officer
Ortiz was a nine-year veteran of the police force who was on
undercover patrol in a high crime area that had been designated
by the Philadelphia Police Department as an Operation Safe
Streets neighborhood. In addition to this designation by the
department, Officer Ortiz was personally familiar with heroin
sales activity in the neighborhood, heroin packaging, and hand-
to-hand drug exchanges on the street. In drawing a nexus
between his experience and the observation he made, Officer
hundred narcotics arrests of this very type.
experience may be fairly regarded as a relevant factor in
determining probable cause, and due to the presence of
was witnessing a drug transaction, we find no error in the
probable cause was present in
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this case. We do not base our decision solely on Officer Ortiz's
experience and the connection he articulated between that
experience and what he observed. We also rely on the fact that
the transaction at issue occurred in the nighttime hours, on the
street, in a neighborhood that the police department selected for
Id. at 936-37 (footnotes omitted).
Turning to the instant appeal, Roscoe and the suppression court are of
the position this case is materially distinguishable from Thompson,
requiring the opposite result (i.e.
Suppression Court Opinion, 6/2/2014, at 7. Specifically, the suppression
court noted that Officer York did not witness a completed transaction; there
was no evidence that Roscoe was observed in a high-crime area; Officer
York had fewer years of experience than the officer in Thompson; and
Officer York did not state how many of the hundreds of drug transactions he
has observed wer
instant case. Suppression Court Opinion, 6/2/2014, at 7-9.
Conversely, the Commonwealth argues that, as in Thompson, an
examination of the totality of the circumstances warrants the conclusion that
Officer York had sufficient information to conclude reasonably that there was
at 11, 14. It claims that the suppression court erred in evaluating each
aspect of the evidence piecemeal rather than considering it as a whole. Id.
at 6. We agree with the Commonwealth.
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An officer has probable cause to make a warrantless arrest when
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....
Furthermore, probable cause does not involve certainties, but
rather the factual and practical considerations of everyday life on
which reasonable and prudent persons act.
Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (citations
arrest exists when criminality is one reasonable inference; it need not be
Commonwealth v. Romero,
673 A.2d 374, 377 (Pa. Super. 1996) (emphasis in original).
Roscoe removed a bag from the groin area of his pants, and reached into
that bag to pluck out an item while the other man moved to pass money to
Roscoe. Id. at 7. When they saw a police car approaching, Roscoe stuffed
the bag back down the front of his pants and the two men scattered. Id. at
ining and experience in making several
hundred narcotics arrests had given him knowledge of how drugs are
packaged and sold, and that dealers often hide narcotics inside their pants
near the genitals, rather than in a more conventional storage area such as
Id. at 7-8.
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turned and tried to walk away as [Roscoe] concealed the item in his groin
attempt to sell illegal narcotics. Id. at 8.
which he had been about to sell is certainly one reasonable inference made
from the totality of the circumstances, if not the most reasonable inference.
The transaction at issue was of an item collected from a bag that had just
street, in a secretive fashion, and was abruptly halted as soon as the men
saw the police. Although Officer York obviously did not know for certain that
Roscoe had attempted to sell narcotics, certainty is not required. The factual
distinctions from Thompson are not material; under Lawson and its
progeny, Officer York was reasonably prudent in believing that Roscoe
possessed drugs.
Order reversed. Case remanded for further proceedings consistent
with this memorandum. Jurisdiction relinquished.
Judge Shogan joins the memorandum.
Judge Lazarus files a dissenting memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/26/2014
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