J-S57040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: O.T., a Minor : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
:
APPEAL OF: O.T., a Minor : No. 3802 EDA 2016
Appeal from the Dispositional Order November 9, 2016
in the Court of Common Pleas of Philadelphia County,
Juvenile Division, No(s): CP-51-JV-0000319-2016
BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017
O.T., a minor, appeals from the dispositional Order entered following
his adjudication of delinquency for possession of a controlled substance. 1
We vacate and remand for further proceedings.
The juvenile court set forth the relevant factual and procedural history
in its Opinion, which we adopt as though fully set forth herein. See Juvenile
Court Opinion, 3/17/17, at 1-4.2
O.T. now presents the following issues for our review:
A. Did not the [juvenile] court err in denying O.T.’s [M]otion to
suppress marijuana and United States currency recovered
1 See 35 P.S. § 780-113(a)(16) (prohibiting “[k]nowingly or intentionally
possessing a controlled or counterfeit substance by a person not registered
under this act, … unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner, or except as
otherwise authorized by this act.”).
2We additionally note that the total weight of the marijuana found on O.T.’s
person was approximately 6 grams. See Juvenile Court Opinion, 3/17/17,
Exhibit D (Seizure Analysis).
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from him[,] where he was stopped, arrested and subjected
to a search without reasonable suspicion or probable cause
that criminal activity was afoot?
B. Did not the [juvenile] court err in [adjudicating] O.T.
[delinquent] of possession of a controlled substance[,] as the
evidence was insufficient to [adjudicate] O.T. [delinquent] of
[this offense], in violation of 35 P.S. § 780-113(a)(16), in
that O.T. was also charged with possession of a small
amount of marijuana[,] in violation of 35 P.S. § 780-
113(a)(31)[,3] and, as the latter offense was the more
specific offense, the conduct enumerated by the more
specific offense was excluded from the more general
offense[,] so that O.T. could not be adjudicated delinquent of
the more general offense?
Brief for Appellant at 4 (footnote added).
In his first issue, O.T. argues that the trial court erred by denying his
Motion to suppress, where “the facts and circumstances, combined with the
[arresting] officer’s [Officer Patrick Greider (hereinafter, “Officer Greider”)]
knowledge and experience, fell short of establishing probable cause.” Id. at
10.
This Court’s standard of review of dispositional orders in
juvenile proceedings is well-settled. The Juvenile Act grants
broad discretion to juvenile courts in determining appropriate
dispositions. In addition, this Court will not disturb the
juvenile court’s disposition absent a manifest abuse of discretion.
… When reviewing a suppression order[,] an appellate
court is required to determine whether the record supports the
3 Subsection 780-113(a)(31) provides that “[n]otwithstanding other
subsections of this section, [the following acts are prohibited:] (i) the
possession of a small amount of marihuana only for personal use; (ii) the
possession of a small amount of marihuana with the intent to distribute it
but not to sell it; or (iii) the distribution of a small amount of marihuana but
not for sale.” 35 P.S. § 780-113(a)(31); see also id. (defining a “small
amount of marihuana” as 30 grams or less).
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suppression court’s factual findings and whether the inferences
and legal conclusions drawn by the suppression court from those
findings are appropriate. Where the record supports the factual
findings of the suppression court, we are bound by those facts
and may reverse only if the legal conclusions drawn therefrom
are in error. However, where the appeal of the determination of
the suppression court turns on allegations of legal error, the
suppression court’s conclusions of law are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts.
In re J.G., 145 A.3d 1179, 1184-85 (Pa. Super. 2016) (citations and
paragraph breaks omitted).
Here, O.T. was subjected to a warrantless arrest, which must be
supported by probable cause. Id. at 1185. “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.”
Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citation and
quotation marks omitted); see also id. (stating that “we require only a
probability, and not a prima facie showing, of criminal activity.” (emphasis in
original, citation and quotation marks omitted)). We apply a totality of the
circumstances test in determining whether probable cause exists. Id.; see
also Commonwealth v. Colon, 777 A.2d 1097, 1100-01 (Pa. Super. 2001)
(stating that “all of the circumstances surrounding a transaction between
citizens are to be considered in determining whether law enforcement
officers have acted arbitrarily or have acted on the basis of probable cause.”
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(citation omitted)). Additionally, “[w]hen police observe citizens engaged in
seemingly suspicious transactions on public streets, the determination of
whether probable cause exists can be a difficult one.” Colon, 777 A.2d at
1100.
In support of his claim that Officer Greider lacked probable cause, O.T.
argues that “Officer Greider had only been on the police force for six months
when he arrested O.T.[,]” and “had received no specific training … [on] how
to recognize a drug transaction.” Brief for Appellant at 14; see also id. at
14-15 (asserting that “Officer Greider had only made two arrests in his
career prior to arresting O.T., and only one of those arrests was for [a drug
possession offense]”). O.T. further contends that “the designation of the
location in question as a ‘high crime, high narcotics area’ is dubious[,]”
particularly where such designation was based on “the word of a brand new
officer typically assigned to patrol SEPTA stations.” Id. at 15. Finally, O.T.
points out that Officer Greider did not observe O.T. engage in more than one
drug transaction, and was not responding to a citizen’s complaint or an
informant’s tip. Id. O.T. urges that “th[e Superior] Court has reiterated
that an officer’s observation of a lone transaction[,] by itself[,] does not
create probable cause; rather, an officer’s experience is necessary to
determine whether probable cause existed.” Id. at 15-16 (emphasis in
original) (citing Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.
Super. 2013)).
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In its Opinion, the juvenile court (1) addressed O.T.’s suppression
challenge; (2) adeptly discussed the cases cited by O.T., and the law
concerning probable cause in drug-trafficking cases with an observed hand-
to-hand transaction on a public street; and (3) determined that Officer
Greider possessed probable cause under the totality of the circumstances.
See Juvenile Court Opinion, 3/17/17, at 5-8. The juvenile court’s analysis is
sound and supported by the record, and we agree with its legal
determination. See id.; see also Commonwealth v. Lawson, 309 A.2d
391, 394 (Pa. 1972) (noting that, in analyzing whether probable cause to
arrest exists following an observed hand-to-hand exchange of small objects
for money, the location in which the seller concealed the contraband on his
or her person is important, and holding that police had probable cause to
arrest the defendant where, inter alia, she stored the small objects in her
“bosom”). Accordingly, we affirm on this basis as to O.T.’s first issue, see
Juvenile Court Opinion, 3/17/17, at 5-8, with the following addendum.
We are unpersuaded by O.T.’s claim that the purported lack of
experience of Officer Greider particularly undermined the juvenile court’s
determination that the Officer possessed probable cause. In this regard, we
agree with the juvenile court that “[j]ust as overwhelming narcotics
experience cannot[,] in [] itself[,] sway the probable cause analysis, lack of
experience cannot be deemed as a disqualifying factor in the probable cause
analysis.” Juvenile Court Opinion, 3/17/17, at 8; accord Commonwealth
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v. Banks, 658 A.2d 752, 753 (Pa. 1995) (acknowledging that although an
officer’s lack of specific narcotics training can be a relevant factor in a
probable cause analysis concerning an observed hand-to-hand drug
transaction on a public street, the court must consider the totality of the
circumstances). We further agree with the juvenile court that Officer
Greider had “sufficient experience to provide a clear lens,” where, inter alia,
the Officer’s “testimony described sufficient knowledge and experience
regarding the area, the practice of drug dealers secreting items within their
pants, and the other details of this particular transaction.” Juvenile Court
Opinion, 3/17/17, at 8. Accordingly, we discern no abuse of discretion or
error of law by the juvenile court in denying the Motion to suppress, and
O.T.’s first issue thus lacks merit.
In his second issue, O.T. contends that the juvenile court erred in
adjudicating him delinquent of possession of a controlled substance, under
35 P.S. § 780-113(a)(16) (sometimes referred to as “K&I possession”),
instead of possession of a small amount of marijuana, under 35 P.S. § 780-
113(a)(31) (sometimes referred to as “SAM”). See Brief for Appellant at 9,
18-23. Specifically, O.T. asserts that because the amount of marijuana that
he possessed was less than 30 grams,
[t]he [juvenile] court erred in [adjudicating] O.T. [delinquent] of
K&I [possession] because the statutory definition of SAM
precludes a conviction for K&I [possession] where an individual
possesses less than 30 grams of marijuana. Additionally, the
[juvenile] court could only have [adjudicated] O.T. [delinquent]
of SAM because it was the more specific offense.
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Id. at 9.
Although O.T.’s issue is couched in terms of sufficiency of the
evidence, the resolution of this issue actually requires us to interpret
statutes. See Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa. Super.
2012). Accordingly, “because statutory interpretation implicates a question
of law, our scope of review is plenary and our standard of review is de
novo.” Id.
In support of his claim, O.T. relies on this Court’s decisions in
Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. 2006), and
Commonwealth v. Tisdale, 100 A.3d 216 (Pa. Super. 2014). See Brief
for Appellant at 22-23. This Court previously summarized these decisions as
follows:
In Gordon, the defendant was found to be in possession of 8.75
grams of marijuana. Out of this one incident, he was charged
with: (1) violation of 35 P.S. § 780-113(a)(31), proscribing the
possession of a small amount of marijuana, and (2) violation of
the general proscription against possession of a controlled
substance as defined in 35 P.S. § 780-113(a)(16). The trial
court found him guilty of the more serious of these charged
offenses[, i.e., section 780-113(a)(16),] which carried with it a
harsher penalty.[FN]
[FN] Anyone who violates [section] 780-113(a)(16) is
guilty of a misdemeanor and will be sentenced to
imprisonment not exceeding one year or to pay a fine
not exceeding $5,000. Anyone who violates Clause
(31) of Subsection (a) is guilty of a misdemeanor and
will be sentenced to imprisonment not exceeding 30
days, or to pay a fine not exceeding $500, or both.
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This [C]ourt held that the legislature, by including Subsection
(31) in Section 780-113 of the proscribed conduct section of the
Drug Act, clearly separated out the specific crime of possession
of a small amount of marijuana, and created a “graduated
system of penalties” that imposes far heavier punishment for
traffickers and lesser sanctions for casual users of marijuana. …
Gordon, 897 A.2d at 509.
We remanded the matter for the trial court to sentence the
defendant under the [SAM] statute, as the legislature clearly
intended that a small amount of marijuana be separately and
less severely punishable than possession of a controlled
substance.
Similarly, in Tisdale, the defendant was arrested with 8.64
grams of marijuana[, which was separately packaged in 12 small
plastic baggies]. He was convicted of [K&I] possession under
Subsection (16). He argued on appeal he should have been
convicted for possession of a small amount of marijuana under
the more specific Subsection (31). We agreed that the
legislature intended to provide a graduated system of penalties
and that when both Subsections (16) and (31) apply, conviction
properly rests on the specific charge found at Subsection (31),
small amount of marijuana. Tisdale, 100 A.3d at 219.
Commonwealth v. Kriegler, 127 A.3d 840, 844-45 (Pa. Super. 2015).
Citing to Gordon, the juvenile court stated in its Opinion that it agreed
with O.T. See Juvenile Court Opinion, 3/17/17, at 9 (“conced[ing] that the
more specific and appropriate charge was [SAM].”).
Relying on 42 Pa.C.S.A. § 9303,4 the Commonwealth asserts that “the
‘specific/general’ rationale of Tisdale,[] 100 A.3d at 218-[]21 (citing three
4 Section 9303 provides that “[n]otwithstanding … any other statute to the
contrary, where the same conduct of a defendant violates more than one
criminal statute, the defendant may be prosecuted under all available
statutory criminal provisions without regard to the generality or specificity of
the statutes.” 42 Pa.C.S.A. § 9303 (emphasis added).
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cases that pre-date Section 9303), is wrong and, despite [O.T.’s] argument
to the contrary, this Court is not bound by [Tisdale] because it has been
eliminated by statute.” Commonwealth’s Brief at 19 (emphasis in original).
We are unpersuaded by the Commonwealth’s argument. Section 9303
became effective in 2003, and Tisdale was decided in 2014, which remains
good law. See Kriegler, 127 A.3d at 844, 845 (noting the abrogation of the
“general/specific rule of statutory construction” by section 9303, but also
citing Tisdale as being good law). As such, we are bound by our holding in
Tisdale, that where both K&I possession and SAM apply, a conviction for
SAM is proper. See Tisdale, 100 A.3d at 219.5
Based upon the foregoing, though we affirm the juvenile court’s denial
of O.T.’s Motion to suppress, we vacate the Dispositional Order and sentence
imposed for K&I possession, and remand to the juvenile court for entry of an
5 We are further unpersuaded by the Commonwealth’s argument that,
because O.T. possessed a number of individually-wrapped plastic baggies
containing marijuana, he could not be adjudicated delinquent of the lesser
offense of SAM, as he did not meet the requirement of the SAM statute that
the marijuana possessed was not for sale. See Commonwealth’s brief at 17-
18. Like O.T., the defendant in Tisdale possessed several small,
individually-wrapped plastic baggies containing marijuana, and this Court
held that the defendant should have been convicted of SAM, not K&I
possession. See Tisdale, 100 A.3d at 218.
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adjudication of delinquency solely on the charge of SAM, and for imposition
of a new sentence.6
Dispositional Order vacated. Case remanded for action consistent with
this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/17
6 We acknowledge that the juvenile court stated in its Opinion that “O.T.’s
probationary sentence[, i.e., imposed on the K&I possession charge,] is the
same as he would have received[] if O.T. had been correctly adjudicated
under SAM, as opposed to K&I [possession].” Juvenile Court Opinion,
3/17/17, at 9. Nevertheless, we deem it appropriate to remand for
resentencing.
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Circulated 10/04/2017 01:20 PM