J-S15037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARELL LEE HOLMES
Appellant No. 964 MDA 2014
Appeal from the Judgment of Sentence May 9, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0006826-2013
BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED MARCH 09, 2015
Appellant Darell Lee Holmes appeals from the judgment of sentence
entered in the York County Court of Common Pleas. We affirm.
On September 4, 2013, police officers arrested Holmes. He was
charged with two counts of delivery of cocaine1 and one count of possession
with intent to deliver (“PWID”) cocaine.2 Following Holmes’s arrest, the
police officers submitted an application for a search warrant for 139 Silver
Spur Dr., Apt. 1, York, PA (“the residence”), which the magisterial district
judge approved. Police officers then searched the residence, finding
evidence of criminal activity, including cocaine and $5,000.00 in cash.
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1
35 Pa.C.S. § 780-113(a)(30).
2
35 Pa.C.S. § 780-113(a)(30).
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On November 18, 2013, Holmes filed an omnibus pretrial motion
seeking suppression of evidence obtained following his arrest and
suppression of evidence obtained during the search of his residence. On
December 19, 2013, the trial court held a hearing. At the hearing, the
parties agreed that the affidavit of probable cause attached to the
application for a search warrant accurately set forth the relevant facts. N.T.,
12/19/2013, at 2, 3-4, 6. The affidavit provides:
At the end of August, 2013 I was in contact with a
confidential informant (CI) that could purchase cocaine
from an unwitting drug dealer in the area of Market St.
and Frysville Rd. in Hellam, Pa 17406. Under my direction,
the CI arranged to purchase an amount of cocaine from
the unwitting drug dealer in that area. The CI and his/her
vehicle were searched for contraband with negative
results. The police followed the CI to the arranged
meeting location. Police viewed the unwitting drug dealer
meet with the CI. The unwitting drug dealer told the CI
that his main dealer was bringing the cocaine to the
meeting location and would be there shortly. The
unwitting drug dealer said that his main dealer lives
nearby near the McDonalds. After a few minutes, a dark
purple/blue Acura SUV bearing PA registration JHP1948
arrived at the meeting location. A black male was driving
the vehicle. The CI provided the unwitting drug dealer with
official funds that were previously recorded. The unwitting
drug dealer walked over to the black male and[,] after a
short time, walked back to the CI. The unwitting drug
dealer gave the CI the amount of cocaine. The CI exited
the area. The cocaine field tested positive.
The vehicle the black male was driving is registered to
Natasha Holmes at [the residence]. During the following
week, the vehicle the black male was driving was seen
parked in the area of [the residence]. On one occasion,
the black male described above was seen exiting the door
of [the residence].
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On September 4, 2013[,] I was in contact with the same
CI. Under my direction, the CI arranged to purchase an
amount of cocaine from the unwitting drug dealer in the
same area. The unwitting drug dealer told the CI that he
would have to call his main dealer to obtain the cocaine.
The CI and his/her vehicle were searched for contraband
with negative results. Police followed the CI to the
arranged meeting location. Police viewed the unwitting
drug dealer meet with the CI. The unwitting drug dealer
told the CI that his main dealer would be on location in five
to ten minutes. After a few minutes, a police officer,
assisting with this drug investigation, conducting
surveillance, viewed the black male exit [the residence].
Police followed the black male driving the same Acura SUV
as the previous deal to the arranged meeting location with
the unwitting drug dealer. The black male met with the
unwitting drug dealer and then left the area. Police
officers followed him from the arranged meeting location,
stopped and detained him.
Police officers continued surveillance and saw the unwitting
drug dealer meet with the CI after the Black male left the
area. After a few minutes, the unwitting drug dealer left
the area. Police followed the CI to a predetermined
location. The CI handed over an amount of cocaine. The
CI and his/her vehicle were searched again for contraband
with negative results. The cocaine purchased through the
unwitting drug dealer from the black male field-tested
[positive.]
Once the black male was detained, he was identified as
Darell Holmes DOB 07/15/1973. Holmes was read his
Miranda Rights and advised he understood his rights.
Holmes said that he stays at [the residence] with his
girlfriend several nights a week. He stated that he
currently sells cocaine to at least two people and he has a
set of scales and about $1,000.00 at the apartment.
Based on the above presented information I believe that
sufficient probable cause existed to establish the fact that
Darell Holmes is involved in cocaine distribution in York
County and is utilizing the residence . . . to facilitate that
criminal activity. Further, I believe that evidence of
cocaine distribution, such [as] additional amounts of
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cocaine, cash, scales[,] and packaging materials will be
present at this residence.
Affidavit of Probable Cause, 9/4/2013. At the conclusion of the hearing, the
trial court denied the motion.
The Commonwealth withdrew the two counts of delivery of cocaine.
N.T., 5/9/2014, at 3. On May 9, 2014, the trial court conducted a bench
trial on the remaining PWID count. The trial court found Holmes guilty and,
pursuant to the parties’ agreement,3 sentenced him to six to twelve years’
imprisonment. Id. at 18-19.
On June 4, 2014, Holmes filed a timely notice of appeal. Both Holmes
and the trial court complied with Pennsylvania Rule of Appellate Procedure
1925.
Holmes raises the following issues on appeal:
1. Whether the trial court erred in denying [Holmes’s]
Omnibus Pretrial Motion where the police illegally stopped,
detained, and/or searched [Holmes]?
2. Whether the trial court erred in denying [Holmes’s]
Omnibus Pretrial Motion where the search warrant in
question lacked requisite probable cause?
Appellant’s Brief at 3. Holmes’s issues are meritless.
When reviewing a denial of a suppression motion, we limit our review
to determining whether the record supports the factual findings and whether
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3
Because Appellant wanted to appeal the denial of the motion, the parties
stipulated to a bench trial. N.T., 5/9/2014, at 5. As part of this agreement,
the parties agreed to a sentence of 6-12 years’ imprisonment. Id. at 5-6.
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the legal conclusions drawn from those facts are correct. Commonwealth
v. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013). In addition, because the
Commonwealth prevailed in the suppression court, we consider only the
Commonwealth’s evidence and so much of the defense evidence “as remains
uncontradicted when read in the context of the record as a whole.” Id. We
may only consider evidence presented at the suppression hearing. In re
L.J., 79 A.3d 1073, 1085-87 (Pa.2013). We “may reverse only if the legal
conclusions drawn therefrom are in error.” Brown, 64 A.3d at 1104.
Whether probable cause exists to justify an arrest “is determined by
considering the totality of the circumstances.” Commonwealth v. Holton,
906 A.2d 1246, 1249 (Pa.Super.2006) (citing Illinois v. Gates, 462 U.S.
213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Under the totality of the
circumstances, a police officer must make a practical common sense decision
whether, given all of the circumstances known to him at that time, including
hearsay information, there is a fair probability that a crime was committed
and that the suspect committed the crime.” Id. (quoting Commonwealth
v. Taylor, 850 A.2d 684, 687 (Pa.Super.2004)). Further, this Court has
explained:
Probable cause to arrest exists when the facts and
circumstances within the police officer’s knowledge 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. Probable cause does not involve
certainties, but rather the factual and practical
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considerations of everyday life on which reasonable and
prudent men act. It is only the probability and not a prima
facie showing of criminal activity that is a standard of
probable cause. To this point on the quanta of evidence
necessary to establish probable cause, the United States
Supreme Court recently noted that finely tuned standards
such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials,
have no place in the probable-cause decision.
Id. (quoting Commonwealth v. Dommel, 885 A.2d 998, 1002
(Pa.Super.2005)).
Similarly, courts apply this totality of the circumstances test to
determine whether probable cause supports the issuance of a search
warrant. Commonwealth v. Jones, 988 A.2d 649, 655 (Pa.2010). The
Supreme Court of Pennsylvania has stated:
Pursuant to the “totality of the circumstances” test set
forth by the United States Supreme Court in Gates, the
task of an issuing authority is simply to make a practical,
common-sense decision whether, given all of the
circumstances set forth in the affidavit before him,
including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability
that contraband or evidence of a crime will be found in a
particular place . . . . It is the duty of a court reviewing an
issuing authority’s probable cause determination to ensure
that the magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the reviewing
court must accord deference to the issuing authority’s
probable cause determination, and must view the
information offered to establish probable cause in a
common-sense, non-technical manner.
Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537–38, 540
(Pa.2001)).
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Further, “an informant’s tip may constitute probable cause where
police independently corroborate the tip, or where the informant has
provided accurate information of criminal activity in the past, or where the
informant himself participated in the criminal activity.” Commonwealth v.
Clark, 28 A.3d 1284, 1288 (Pa.2011) (quoting Commonwealth v. Luv,
735 A.2d 87, 90 (1999)).
Holmes first contends the police lacked probable cause to support his
warrantless arrest. Appellant’s Brief at 6. Holmes maintains the police
based their conclusion that Holmes possessed and delivered drugs on the
unreliable statements of the “unwitting drug dealer.” Id. He maintains the
unreliable statements of the drug dealer are similar to anonymous tips and
the police lacked corroborating evidence. Id. He claims the police did not
see a hand-to-hand transaction between Holmes and the drug dealer and he
could have arrived at the location for an innocent reason, such as paying
back money owed to the drug dealer. Appellant’s Brief at 9 (quoting N.T.,
12/19/2013, 4-6).
The trial court found the police officers had probable cause to arrest
Holmes because the police received information from a CI that he could buy
cocaine from an “unwitting drug dealer” at a specified location, which police
officers corroborated by surveillance on two occasions. Opinion, 9/15/2014,
at 6. The court “felt the CI’s reliability was established because the same
type of transaction occurred on two different occasions.” Id. The trial court
reasoned that Holmes’s claim that he could have had another reason for
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arriving at the location was a trial issue, not a suppression issue. Id. at 7.
The trial court concluded the evidence should not be suppressed. Id. It
reasoned probable cause supported the arrest because the police officers
had reason to believe Holmes had just left the scene of a drug transaction
and was involved in the transaction. Id.
The trial court did not err when it found probable cause supported the
warrantless arrest. Under the totality of the circumstances, sufficient
evidence supported the probable cause determination. A CI relayed
information from an “unwitting drug dealer,” who said his supplier would
soon arrive at the location. This statement was corroborated when, after
Holmes arrived at the location and met with the drug dealer, the drug dealer
provided cocaine to the CI. The information was further corroborated when,
during the second controlled buy, the drug dealer again informed the CI that
his supplier would be at the meeting location. The police followed Holmes to
the location, where he again briefly met with the drug dealer and left the
location. The drug dealer then provided drugs to the CI. Given the totality
of the circumstances, a “person of reasonable caution” would believe “that
an offense [had] been committed by” Holmes. See Holton, 906 A.2d at
1249; Clark, 28 A.3d at 1288 (“informant’s tip may constitute probable
cause where police independently corroborate the tip… .”); Commonwealth
v. Goldsborough, 31 A.3d 299 (Pa.Super.2011) (probable cause to
effectuate custodial detention existed where police received detailed
information of defendant’s drug activities from two reliable confidential
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informants, the information received from each informant bolstered the
information received from the other informant, and the police conducted
surveillance).
Holmes next contends the court erred when it found probable cause
existed to support the search warrant of Holmes’s residence. Appellant’s
Brief at 17-18. He again argues the “unwitting drug dealer” was not a
reliable informant and the information provided by the drug dealer, i.e., that
Holmes was his supplier, lacked independent corroboration. Id., at 17. He
argues, because the arrest was improper, the search was improper. Id.
For the same reasons that it found probable cause supported Holmes’s
arrest, the trial court also found probable cause supported the issuance of
the search warrant. Opinion, 9/15/2014, at 5-7.
As discussed above, probable cause existed to conduct the stop and
arrest. Following this stop, Holmes informed police that his girlfriend resided
at the residence and he often stayed there. He also stated the police would
find drugs, a scale, and $1,000.00 at the residence.
Based on this evidence, the trial court did not err in finding probable
cause supported the issuance of the search warrant.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/9/2015
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