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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ISAAC DESHANE JONES,
Appellant No. 338 EDA 2013
Appeal from the Judgment of Sentence September 12, 2012
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0012414-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 31, 2014
Appellant, Isaac Deshane Jones, appeals from the judgment of
sentence imposed after his conviction, following a non-jury trial, of
possession of a controlled substance with the intent to deliver and
possession of a controlled substance.1 Specifically, Appellant contests the
denial of his pre-trial motion to suppress narcotics seized incident to his
arrest. After careful review, we hold that the trial court properly determined
that there was probable cause to arrest Appellant. The court properly
denied suppression. Accordingly, we affirm.
The trial court summarized the factual history of this case as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
35 P.S. §§ 780-113(a)(30) and (16), respectively.
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The only evidence taken at the suppression hearing was
that of Police Officer Andre Simpson, badge number 4108, a
Narcotics Enforcement Officer in the 35th Police District.
Officer Simpson testified that on October 14th, 2011, at
approximately 10:24 a.m., following complaints of numerous
drug sales, he conducted a narcotics surveillance in the area of
the 1400 Grange, 1400 Clearview, and the 5800 and the 5700
block of Broad Street, in the City and County of Philadelphia.
He identified it as a high narcotics area, especially the
immediate area, as being an area known for heroin sales. He
also identified the area as having a methadone clinic in the
immediate vicinity of [the] surveillance area and located in the
5800 block of Old York Road. Officer Simpson testified that he
has personally made numerous narcotics arrests at this location,
predominantly in the morning hours, for heroin sales.
Officer Simpson testified that he was a police officer at that
time for approximately ten years and with the Narcotics
Enforcement Team since 2007. He also testified that he had
conducted over 1,000 surveillances for drug transactions and
made 700 to 800 narcotics arrests in his career. He had
previously set up approximately 200 surveillances in this specific
location.
Officer Simpson testified that he had observed [Appellant]
standing on the corner of the 1400 block of Clearview Street and
observed [Appellant] approach a number of pedestrians. He
further observed [Appellant] reach into his pocket and show
these individuals something from a closed fist to an open fist
motion. [Officer Simpson] also testified that he observed no
actual transactions take place between [Appellant] and any of
those individuals whom he had approached. Of particular note
for the purposes of this motion was the fact that [] Officer
Simpson testified that [Appellant] was only approaching
individuals that he either knew to be heroin addicts or those
going into or leaving this aforementioned methadone clinic.
After approximately [fifteen] to [twenty] minutes of
surveillance, Officer Simpson saw [Appellant] leaving the area.
At that point, he radioed his back-up team to stop [Appellant]
after providing them with [Appellant’s] description. [Appellant]
was stopped approximately two blocks away from the area.
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Recovered from [Appellant] were [twenty] packets of heroin,
[fifty-four] Xanax pills and $149.00 in U.S. currency. All were
placed on property receipts. [Appellant] was taken into custody
at that time.
(Trial Court Opinion, 3/14/14, at 4-5) (footnote and record citations
omitted).
The trial court denied Appellant’s motion to suppress, after a hearing,
on July 23, 2012 and immediately held a non-jury trial, convicting him of the
drug charges. On September 12, 2012, the sentencing court sentenced
Appellant to not less than two-and-one-half nor more than five years’
incarceration, followed by two years’ probation.
On September 24, 2012, Appellant filed a post-sentence motion. The
court denied Appellant’s motion by operation of law on January 23, 2013.
Appellant timely appealed on January 30, 2013.2
Appellant raises the following question for our review:
[Whether] the trial court err[ed] in denying [his] motion to
suppress physical evidence, as [he] was arrested and subjected
to a full custodial search without probable cause?
(Appellant’s Brief, at 3).
____________________________________________
2
Due to a delay in receiving the notes of testimony, Appellant requested,
and the trial court granted, an extension within which to file his Rule
1925(b) statement. Appellant failed to file his statement. However,
Appellant filed a motion with this Court to remand the matter to permit the
filing of his Rule 1925(b) statement upon receipt of the notes of testimony.
On September 23, 2013, this Court granted Appellant’s motion and, through
counsel, he timely filed a Rule 1925(b) statement on February 5, 2014. The
trial court entered its Rule 1925(a) opinion on March 14, 2014. See
Pa.R.A.P. 1925.
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It is well-settled that:
Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. . . . [W]e 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 a whole. Those properly supported
facts are binding upon us and we may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations
and quotation marks omitted).
Here, Appellant asserts that “the trial court erred in denying [his]
motion to suppress[.]” (Appellant’s Brief, at 8 (capitalization omitted)).
Specifically, he argues that “[t]he arrest and search [were] illegal . . .
[because] there was no probable cause [to arrest him] based on the officer’s
observations.” (Id.). We disagree.
Probable cause is made out when the facts and circumstances
which are within the knowledge of the officer at the time of the
arrest, and of which he has reasonably trustworthy information,
are sufficient to warrant a man of reasonable caution in the
belief that the suspect has committed or is committing a crime.
The question we ask is not whether the officer’s belief was
correct or more likely true than false. Rather, we require only a
probability, and not a prima facie showing, of criminal activity.
In determining whether probable cause exists, we apply a
totality of the circumstances test.
* * *
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;
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the movements and manners of the parties are
important. [Commonwealth v. Lawson, 309 A.2d
391, 394 (Pa. 1973)].
* * *
. . . [A] police officer’s experience may fairly be regarded
as a relevant factor in determining probable cause. . . . [A] court
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
evidence.
Thompson, supra at 931-32, 935 (citations, quotation marks, footnote,
and emphasis omitted).
Here, the record reflects that Officer Simpson, an experienced
narcotics officer, had probable cause to arrest Appellant. In response to
numerous complaints of drug sales, Officer Simpson conducted a narcotics
surveillance in a known high narcotics area in close proximity to a
methadone clinic. (See N.T. Suppression Hearing/Trial (Waiver), 7/23/12,
at 7, 12). He had previously conducted approximately 200 surveillances in
the same area and personally made numerous arrests in the morning hours
for heroin sales. (See id. at 7, 12-13). On the particular morning at issue,
Officer Simpson observed Appellant standing at the corner of the 1400 block
of Clearview Street. (See id. at 6-8). Appellant approached several
pedestrians; individuals Officer Simpson recognized as heroin addicts and/or
going to and from the methadone clinic. (See id. at 8-9, 13-14, 19).
Appellant reached into his pocket and showed them an item in his hand
using a closed fist to open fist motion; behavior Officer Simpson recognized
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as a method often used in narcotic street transactions. (See id. at 8, 14-16,
23-26). Although Officer Simpson did not witness an actual transaction, the
Appellant’s mannerisms, time of day, and location led him to believe that
Appellant was trying to sell heroin. (See id. at 13-18, 22-24). After
approximately fifteen to twenty minutes, Appellant left the area and Officer
Simpson radioed the back-up team to stop him. (See id. at 9, 15, 23).
Accordingly, under the totality of the circumstances test, Officer
Simpson had probable cause to arrest Appellant. See Thompson, supra at
931-32, 935. Therefore, we conclude that the trial court did not err in
denying Appellant’s pre-trial motion to suppress narcotics seized incident to
his arrest. See id. at 931. Appellant’s issue lacks merit.
Judgment of sentence affirmed.
Judge Mundy joins the Memorandum.
Judge Lazarus files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/31/2014
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Com. v. Jones, I.
Combined Opinion