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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE
FILED
SUPERIOR
MAY 04,
COURT
2016
OF
: PENNSYLVANIA
v. :
:
EDWARD RIVERA, :
:
Appellant : No. 2920 EDA 2014
Appeal from the Judgment of Sentence July 14, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, No(s): MC-51-CR-0012203-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 04, 2016
Edward Rivera (“Rivera”) appeals from the Order of the common pleas
court, which denied his Petition for Writ of Certiorari of the judgment of
sentence entered by the Municipal Court of Philadelphia 1 following his
conviction of possession of a controlled substance and purchase of a
1
An appellant convicted in Philadelphia’s Municipal Court has two appellate
options:
Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides
that a defendant convicted in Philadelphia Municipal Court has
the right to request either a trial de novo or file a petition for a
writ of certiorari with the Philadelphia Court of Common Pleas.
This Court has held that when a defendant files a petition for a
writ of certiorari, the Philadelphia Court of Common Pleas sits as
an appellate court.
Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa. Super. 2011)
(citations omitted). A petition for writ of certiorari asks the common pleas
court to review the record made in the Municipal Court. Commonwealth v.
Williams, 125 A.3d 426, 431 (Pa. Super. 2015).
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controlled substance from an unlicensed seller.2 We vacate the Order of the
common pleas court, vacate Rivera’s judgment of sentence, and discharge
Rivera.
In its Opinion, the common pleas court set forth its factual findings
relevant to the instant appeal as follows:
On April 16, 2014, Officer [Bryan] Outterbridge [“Officer
Outterbridge”] and [another police officer] went to 3116 North
15th Street [in Philadelphia] to observe the sale of illegal
narcotics[,] after receiving a complaint that drugs were being
sold out of the residence. The residence is a rooming house,
located in a high drug area, known for the sale of marijuana,
crack, and heroin[,] where Officer Outterbridge had made more
than a hundred arrests.
At approximately 11:45 a.m., an unknown male wearing a
tan jacket approached and knocked on the door. A second
unknown male wearing a red sweatshirt answered, letting the
first man inside. After approximately forty-five seconds, the
man in the tan jacket emerged and walked northbound on 15 th
[S]treet. Though Officer Outterbridge relayed flash information
to have the man stopped, he was never found. At approximately
12:10 p.m., a second unknown male in a tan jacket and black
pants knocked on the door. The same male in the red sweatshirt
let him inside[,] where both remained for approximately forty-
five seconds. Upon leaving, the man in the tan jacket and black
pants headed northbound on 15th Street, but then turned west
onto Allegheny [Avenue] and entered an apartment building
before he could be stopped by police. Finally, at approximately
12:30 p.m., a man wearing a red, white, and blue shirt, later
identified as [Rivera], approached 3116 North 15th Street.
[Rivera] knocked on the door in the same manner as the two
men before him. He[,] too[,] was greeted by the man wearing
the red sweatshirt and, like the two men who preceded him[,]
entered the residence. After being out of view for approximately
forty-five seconds, [Rivera] returned to the street and walked
southbound on 15th Street, then east on Clearfield [Street].
2
35 P.S. § 780-113(a)(16), (19).
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Officer Outterbridge has been a Philadelphia police officer
for twenty-one years[,] with five years of experience working
narcotics. Throughout his career, Officer Outterbridge has
received specialized training in narcotics. He is certified to test
various narcotics, including marijuana, crack, cocaine, and
heroin. He is also trained in the packaging of narcotics and how
they are distributed. Because he had made numerous arrests in
the area, and based on his years of experience as a member of
the narcotics team, Officer Outterbridge believed that what he
saw on April 16, 2014 was a narcotics transaction. Officer
Outterbridge had observed similar situations in the past; he had
seen other narcotics sales from residences[,] and this “fit the
description.” Based on this belief, Officer Outterbridge relayed
flash information to back-up officers. Officer Bradley responded
and stopped [Rivera], recovering one heat-sealed packet
containing an off-white chunky substance: crack cocaine. A
field drug test was conducted on this packet and it came back
positive for the presence of cocaine base.
Trial Court Opinion, 7/15/15, at 1 (citations omitted). The Commonwealth
subsequently charged Rivera with the above-described offenses.
The trial court concisely summarized the procedural history following
Rivera’s arrest as follows:
[Rivera] appeared before the Municipal Court on July 14,
2014[,] with a Motion to Suppress, which was denied. [Rivera]
was subsequently found guilty of knowing and intentional
possession of a controlled substance [and purchase of a
controlled substance from an unlicensed seller,] and was
sentenced to eighteen months [of] reporting probation. On
October 7, 2014, [Rivera] appeared before the Court of Common
Pleas with a [Petition for] Writ of Certiorari from the denial of the
Motion to Suppress.[3] The [trial c]ourt denied the [Petition for]
Writ of Certiorari on that same day. This appeal followed.
Id. at 1 (footnote added).
On appeal, Rivera presents the following claim for our review:
3
Rivera had filed his Petition for Writ of Certiorari on August 12, 2014.
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Did not the courts below err in denying [Rivera’s M]otion to
[S]uppress physical evidence[,] where police saw two unknown
individuals briefly enter and leave a house police believed was a
drug house, and later saw [Rivera] briefly enter and leave the
same house, but police observed no transactions, exchanges, or
contraband?
Brief for Appellant at 3.
In reviewing an order denying a suppression motion,
[a]n appellate court may consider only the Commonwealth’s
evidence and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record
as a whole. Where the record supports the factual findings of
the trial court, the appellate court is bound by those facts and
may reverse only if the legal conclusions drawn therefrom are in
error. However, it is also well settled that an appellate court is
not bound by the suppression court’s conclusions of law.
Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)
(citations omitted).
With respect to factual findings, we are mindful that it is the sole
province of the suppression court to weigh the credibility of the
witnesses. Further, the suppression court judge is entitled to
believe all, part or none of the evidence presented. However,
where the factual determinations made by the suppression court
are not supported by the evidence, we may reject those findings.
Only factual findings which are supported by the record are
binding upon this Court.
Id. (citation omitted).
Rivera claims that the police officers lacked probable cause to arrest
him, and accordingly, the suppression court erred in not suppressing all
evidence seized from him as a result of the illegal arrest. Brief for Appellant
at 8. Rivera acknowledges the Commonwealth’s evidence that the officers
had received complaints about drugs being sold from the residence at issue,
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and that Officer Outterbridge and his partner set up surveillance of that
property. Id. Rivera further acknowledges the Commonwealth’s evidence
that the area was a high-drug crime area, and that Officer Outterbridge was
a 21-year veteran of the police force, with five years of narcotics experience.
Id. Notwithstanding, Rivera claims that the Commonwealth
failed to establish a nexus between [Officer Outterbridge’s]
experience and his observations sufficient to create probable
cause where the officer observed nothing that was immediately
identifiable as unlawful. He saw three people enter and leave a
rooming house that police received anonymous complaints about
regarding drug sales. [Officer Outterbridge] saw no exchanges,
or contraband, or money, or any evidence of drug sales.
Id. at 11. In support, Rivera compares the circumstances in this case to
those presented in Commonwealth v. Myers, 728 A.2d 960 (Pa. Super.
1999). Brief for Appellant at 9-10.
In its Opinion, the trial court acknowledged Rivera’s reliance on
Myers, but reasoned that Rivera had “neglect[ed] to consider the impact of
[Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009),] and its
progeny.” Trial Court Opinion, 7/15/15, at 5. The trial court considered
Officer Outterbridge’s training and experience, and deemed it significant that
Officer Outterbridge had witnessed several identical instances of persons
entering and leaving the residence. Id. at 6-7 (citing Commonwealth v.
Delvalle, 74 A.3d 1081 (Pa. Super. 2013)). Based upon this evidence, the
trial court concluded that the Commonwealth had established probable cause
to arrest Rivera. Trial Court Opinion, 7/15/15, at 8.
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“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46
A.3d 781, 784 (Pa. Super. 2012). Generally, the police must obtain a
warrant to arrest a suspect in a public place. In the Interest of R.P., 918
A.2d 115, 120 (Pa. Super. 2007). “However, the police may arrest a
suspect without a warrant if the officer has probable cause to believe a
misdemeanor was committed in the presence of the police officer.” Id. at
120-21.
“To be constitutionally valid, a warrantless arrest must be supported
by probable cause.” Commonwealth v. Agnew, 600 A.2d 1265, 1271 (Pa.
Super. 1991) (citation omitted).
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.
Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (emphasis
omitted) (quoting Thompson, 985 A.2d at 931 (Pa. 2009) (citations and
quotation marks omitted)). “When an officer makes an unlawful arrest, any
evidence seized during a search incident to the arrest must be suppressed.”
Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999).
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Rivera relies upon the Pennsylvania Supreme Court’s decision in
Myers, as supporting his claim that his arrest was not supported by
probable cause. In Myers,
[f]ollowing surveillance of [a] residence at 2507 S. 62nd Street
in Philadelphia[,] which anonymous complaints had identified as
the site of a drug trafficking operation, police arrested two
persons for narcotics violations on March 25 and 26, 1997. On
April 1, 1997, at approximately 5:00 p.m., police observed a
man entering the premises and leaving approximately two
minutes later. About one hour later, a woman entered the house
and quickly left. At approximately 6:30 p.m., [the a]ppellant
was observed by a surveillance officer[,] who described his
actions as follows:
[The appellant] walked up, knocked on the door, [and]
entered. Approximately two minutes later, he exited. I
believe I saw something in his hand but, again, it was
closed. He then placed it in his pocket.
(N.T. Suppression, 7/14/97, at 17-18). [The a]ppellant then
entered his vehicle and drove away.
Myers, 728 A.2d 961. Based upon the foregoing, our Supreme Court
concluded that the police lacked probable cause to place the appellant under
arrest: “[The a]ppellant entered a house that was under surveillance and
was seen leaving approximately two minutes later. The surveillance officer
thought he saw something in [the a]ppellant’s hand but could not be certain.
These facts do not constitute probable cause.” Id. at 962 (emphasis
added).
In concluding that the facts in the instant case established probable
cause, the trial court relied upon our Supreme Court’s decision in
Thompson. In Thompson, while on patrol, Philadelphia Police Officer
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Orlando Ortiz (“Officer Ortiz”) observed a car parked on a sidewalk and
observed the appellant standing in the street by the driver’s side door.
Thompson, 985 A.2d at 930. “Officer Ortiz watched Percy Thompson
(“Thompson”) hand the male driver some money and saw the driver give
[Thompson] a small object in return.” Id. To establish probable cause, the
Commonwealth presented evidence that Officer Ortiz was a nine-year
member of the police force, who had made several hundred narcotics arrests
of this type. Id. Further, the Commonwealth presented evidence of Officer
Ortiz’s knowledge that the neighborhood was a “high crime area in which
narcotics, and specifically heroin, regularly were sold[,]” and “[t]he area was
designated by the Philadelphia Police Department as an ‘Operation Safe
Streets’ neighborhood.” Id. Under these circumstances, the Thompson
Court concluded that “a police officer’s experience is a relevant factor in the
probable cause inquiry[,] as long as it has specific application to the
circumstances at hand.” Id. (emphasis added).
[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. Indeed, a factor becomes relevant only
because it has some connection to the issue at hand….
Id. at 935 (citations and quotation marks omitted, emphasis added).
Subsequently, in Delvalle, the appellant challenged whether the
Commonwealth had presented a sufficient nexus between Police Officer Eric
Crawford’s (“Officer Crawford”) training and experience, and the observed
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transactions involving Robert Delvalle (“Delvalle”) and Maria Melendez
(“Melendez”). The trial court, however, concluded that probable cause
existed, without considering Officer Crawford’s experience:
Officer Crawford observed Melendez approach and hand
[Delvalle] small objects. [Delvalle] placed those objects in the
front of his pants, which certainly is a dubious place to store
non-contraband items. [Delvalle] then worked in tandem with
Melendez to facilitate suspicious transactions. An individual
would approach [Delvalle]. [Delvalle] would then direct that
individual to Melendez. That person would then hand Melendez
money. Melendez would then give that person an unknown
object, which she retrieved from the pocket of her hooded
sweatshirt. Unlike the circumstances in Thompson …, this
sequence of events did not happen once, but instead happened
four times in fewer than twenty minutes, each transaction
occurring in the same exact manner. Considering the fact
that the neighborhood was considered to be a high drug-
transaction area, the suspicious secretion of the objects,
the nature and location of the transactions, and the
frequency and repetitiveness of the transactions, probable
cause existed to warrant a reasonable police officer’s
belief that [Delvalle] and Melendez were committing a
crime, even without considering Officer Crawford’s
experience.
Officer Crawford testified that he had conducted
surveillance in that same location thirty to forty times, which
produced seventy-five to one hundred drug arrests based upon
very similar transactions. As a member of the narcotics
enforcement team, Officer Crawford received training in how
drugs are packaged, sold generally, and sold through the use of
a partner. More importantly, in his experience, Officer Crawford
had observed over one hundred people store drugs in the front
of their pants, as [Delvalle] did in the instant case. This
particular experience informed his view that [Delvalle] and
Melendez were working together and selling drugs, even though
Officer Crawford was unable to identify the objects being sold.
Through this testimony, Officer Crawford established the
requisite nexus between his experience and his observations to
support the existence of probable cause.
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Delvalle, 74 A.3d at 1088.
Keeping in mind our scope and standard of review, the evidence in this
case falls short of that which was presented in Thompson and Delvalle.
Rather, the circumstances underlying Rivera’s arrest more closely resemble
those presented in Myers. Here, the alleged transactions took place outside
of the presence of Officer Outterbridge. Officer Outterbridge did not witness
any activity resembling a transaction, such as the exchange of money for
objects or the secreting of those objects in a suspicious location. Under
these circumstances, we conclude that the Commonwealth failed to establish
the required nexus between Officer Outterbridge’s experience and training,
and Rivera’s arrest. See Thompson, 985 A.2d at 935. Even considering
Officer Outterbridge’s training and experience, we conclude that the
Commonwealth failed to establish probable cause that Rivera had engaged in
criminal activity.4 Accordingly, we reverse the Order of the common pleas
court denying Rivera’s Petition for Writ of Certiorari, reverse Rivera’s
judgment of sentence, and discharge Rivera.
Order vacated; judgment of sentence vacated and appellant is
discharged.
4
We note, however, that such evidence may establish reasonable suspicion
to effectuate an investigative stop of Rivera, pursuant to Terry v. Ohio, 392
U.S. 1 (1968).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2016
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