J-A07002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
GREGORY SCIPPIO : No. 844 EDA 2018
Appeal from the Order January 19, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0009888-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED APRIL 17, 2019
The Commonwealth of Pennsylvania appeals from an order entered on
January 19, 2018, in the Court of Common Pleas of Philadelphia County
(hereinafter “court of common pleas”), which granted Gregory Scippio’s
(Appellee) petition for writ of certiorari along with his motion to suppress.1
We reverse.
The court of common pleas summarized the relevant facts as follows.
The following facts were presented at the hearing for the motion
to suppress. On April 8, 2017, at 8:20 p.m., [after receiving
multiple complaints about narcotics sales,] Officer Patrick Biles
and other members of the 15th Police District Narcotics
Enforcement Team [] set up a plain clothes surveillance
[operation,] specifically targeting [] a Chinese restaurant [along
Frankford Avenue]. Officer Biles testified at the [hearing on
Appellee’s motion to suppress]; however, not testifying was the
officer who actually received the radio call from Officer Biles, and
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1 As made final by the March 5, 2018, order denying reconsideration.
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* Former Justice specially assigned to the Superior Court.
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who arrested Appellee, Officer [Thomas Schaffer.] Officer Biles
testified that, at 8:30 p.m., he observed [Appellee] enter the
restaurant, wearing a blue jeans jacket, a black hoodie, and jeans.
At 8:40[p.m.], Appellee was approached by [an] unknown black
male, wearing a red hoodie [and] black pants, [and] riding a
mountain bike. There was a brief conversation, then the black
male handed Appellee unknown paper, United States currency,
whereupon Appellee went into his right pocket and produced a
small object that he handed to the male. The male immediately
left the store on his bike and went eastbound on Church Street.
Officer Biles testified that he gave a description and direction of
travel and clothing to his backup officers. They were not able to
locate the suspect in the area. At 8:42[p.m.], Appellee was
approached by another unknown black male with white pants and
a white jacket, carrying a backpack. United States currency was
passed from the unknown black male to Appellee, who then
produced “small items.” The unknown black male immediately
left the store and headed north on Frankford Avenue, but [the
police were unable to locate him]. At 9:10[p.m.], Appellee was []
approached by a male in an orange jacket, black hoodie, and black
pants, [who was] later identified as Andrew Agha. After a brief
conversation, Appellee took out of his right pocket what appeared
to be a small clear tube with a neon green cap, and showed it to
Agha. Agha handed Appellee United States currency [then] took
the item from Appellee, put it in his pocket[,] and left, heading
southbound on Frankford Avenue. Agha was stopped a block
away on the 1600 block of Rowan Street. Officer Vaughn
recovered [] a clear tube with a green neon top containing a green
leafy substance [from Agha’s mouth].
At approximately 9:25 p.m., Officer Biles witnessed Appellee
leaving the area of [] Frankford Avenue, and “gave an order for
backup to come in and take him down[.”] [A]gain[,] [Officer Biles]
never [testified to] the names of the backup officers on his team.
Officer Schaffer stopped Appellee on the 1600 block of Rowan
[Street], and recovered seven clear tubes with green neon tops,
containing a green leafy substance, [] from Appellee’s right
pocket, as well as $27.00 in different denominations. A field []
test [showed] the presence of marijuana.
Court of Common Pleas Opinion, 6/21/2018, at 1-3. (internal footnote
and citations omitted).
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The Commonwealth charged Appellee with possession with intent to
deliver,2 knowing or intentional possession of a controlled substance, 3 and
possession of marijuana.4 Before the Philadelphia Municipal Court (hereinafter
the “suppression court”), Appellee moved for suppression of all physical
evidence confiscated from him on the grounds that it was obtained in violation
of his constitutional rights. The suppression court denied the suppression
motion after a hearing on September 8, 2017. Following a trial, the
suppression court found Appellee guilty of possession of marijuana and not
guilty of the other two charges. The suppression court fined Appellee $100.00
and imposed no further penalty. Appellee filed a petition for issuance of writ
of certiorari challenging the suppression court’s denial of his suppression
motion. The court of common pleas granted Appellee’s petition for writ of
certiorari, granted the suppression motion, reversed his conviction, and
vacated his sentence. This appeal by the Commonwealth, pursuant to
Pa.R.A.P. 311(d), followed.5
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2 35 Pa.C.S.A. § 780-113(a)(30).
3 35 Pa.C.S.A. § 780-113(a)(16).
4 35 Pa.C.S.A. § 780-113(a)(31).
5 In its notice of appeal, the Commonwealth certified that the order appealed
from will, “terminate or substantially handicap the prosecution.” See Pa.R.A.P.
311(d). On March 26, 2018, the court of common pleas ordered the
Commonwealth to file a statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied on April 13,
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The Commonwealth presents a single issue for our review:
Did the [court of common pleas] err in reversing [Appellee’s]
conviction where the [suppression court] properly determined that
an officer with probable cause ordered [Appellee’s] arrest and that
[Appellee] was seized pursuant to that directive?
Commonwealth’s Brief at 4.
The Commonwealth argues that it was error for the court of common
pleas to grant Appellee’s petition for writ of certiorari and suppression motion.
When a municipal court denies a motion to suppress, finds a defendant guilty,
and imposes sentence, the defendant has two options. He may either petition
the court of common pleas for certiorari or request a trial de novo. See
Pa.R.Crim.P. 1006(1)(a). If the defendant files a petition for issuance of writ
of certiorari, the court of common pleas sits as an appellate court—it reviews
the record of the suppression hearing before the municipal court.6
Commonwealth v. Neal, 151 A.3d 1068, 1070 (Pa. Super. 2016) (citations
omitted). When sitting as an appellate court reviewing a motion to suppress,
the court of common pleas applies the same standard that this Court would
apply when reviewing the same.
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2018. The court of common pleas issued its 1925(a) opinion on June 21,
2018.
6 At a suppression hearing, “[t]he Commonwealth shall have the burden of
going forward with the evidence and of establishing that the challenged
evidence was not obtained in violation of the defendant's rights.”
Pa.R.Crim.P. 581(H).
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Specifically, [the court of common pleas] is limited to determining
whether the suppression court's factual findings are supported by
the record and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth prevailed before the
suppression court, [the court of common pleas] may consider only
the evidence of the Commonwealth 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 suppression
court's factual findings are supported by the record, [the
court of common pleas is] bound by [those] findings and
may reverse only if the court's legal conclusions are
erroneous.
Id. at 1070-1071, citing Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.
2010) (internal quotation omitted)(emphasis added). “The scope of review
from a suppression ruling is limited to the evidentiary record created at the
suppression hearing.” Neal, 151 A.3d at 1071.
Here, the court of common pleas, sitting as an appellate court, found
that the suppression court’s factual findings were not supported by the record.
Specifically, it noted, “[t]he [suppression court] found that there was constant
radio communication between Officer Biles and the arresting officer, and
therefore, the arresting officer had sufficient probable cause to arrest
Appellee.” Court of Common Pleas Opinion, 6/21, 2018, at 3. The court of
common pleas, however, disagreed. It found that the testimony only
established constant radio communication between Officer Biles and Officer
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Vaughn, and that there was no evidence that Officer Schaffer, who undertook
the search and seizure of Appellee, was in constant radio contact.7 Id. at 4.
In this case, the court of common pleas applied the rule set forth in
Commonwealth v. Yong, 177 A.3d 876 (Pa. 2018). In Yong, our Supreme
Court announced a rule that it categorized as a “modest amplification of the
vertical application of the collective knowledge doctrine.” Id. at 888. The
vertical approach to the collective knowledge doctrine dictates that an officer
making a warrantless arrest based on orders from a superior officer need not
have probable cause so long as the superior officer had probable cause for the
arrest. See Commonwealth v. Kenney, 297 A.2d 794 (Pa. 1972). Yong
held that where there is evidence that two officers are working as a team, and
one of them has probable cause to stop or arrest an individual, that knowledge
can be imputed to the officer who makes the arrest, even without evidence
that it was actually conveyed. Id. at 890. “[W]e hold the seizure is still
constitutional where the investigating officer with probable cause or
reasonable suspicion was working with the officer and would have inevitably
and imminently ordered that the seizure be effectuated.” Id.
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7 The court of common pleas did not dispute that Officer Biles, who witnessed
the three exchanges between Appellee and his alleged customers and had
years of experience surveilling narcotics operations, had probable cause to
arrest and search Appellee. Instead, Appellee argued, and the court of
common pleas agreed, that the evidence did not establish that Officer Schaffer
stopped Appellee based on Officer Biles’ instruction.
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The court of common pleas applied that rule to the facts as it saw them,
and came to the conclusion that because Officer Biles did not explicitly testify
to the fact that Officer Schaffer received an order or was part of his team,
Officer Schaffer lacked probable cause to stop and search Appellee.
Accordingly, the court of common pleas reversed the order of the suppression
court, granted Appellee’s suppression motion and vacated his conviction and
sentence for possession of marijuana.
We disagree with the court of common pleas’ very narrow reading of the
record. As stated previously, “[w]here the suppression court’s factual findings
are supported by the record, [the court of common pleas is] bound by [those]
findings and may reverse only if the court’s legal conclusions are erroneous.”
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). The reviewing
court must also consider only the evidence presented by the party that
prevailed before the suppression court. Id. As such, the court of common
pleas was required to review the evidence presented by the Commonwealth
and determine whether the facts found by the suppression court were
supported by the record.
The suppression court found that, because the officers were in “constant
radio communication,” there were grounds to arrest Appellee. N.T., 9/8/2017,
at 12. On cross-examination, Officer Biles testified as follows.
Q. So I am clear, there is only one alleged buyer stopped?
A. Yes.
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Q. And that is Mr. Agha?
A. I think that is how you say it.
Q. You didn’t witness him get stopped?
A. No I didn’t.
Q. That is another officer telling you about that?
A. We are in constant radio communication.
N.T., 9/8/2017, at 8-9.
The court of common pleas interpreted Officer Biles’ statement, “[w]e
are in constant radio communication,” as referring only to communications
between Officer Vaughn and Officer Biles, and excluding Officer Schaffer from
their communication loop. However, the suppression court clearly understood
that statement to refer to the entire narcotics enforcement team, including
Officer Schaffer. Moreover, the court of common pleas took issue with the
fact that Officer Biles never specifically stated that Officer Schaffer was part
of the narcotics enforcement team. The suppression court, however, inferred
as much. This inference is supported by the following testimony given by
Officer Biles. “I witnessed the defendant leaving the area of [] Frankford
[Avenue]. Fearing he wasn’t coming back, I gave an order for backup to
come in and take him down. Officer Schaffer stopped the defendant
on the 1600 block of Rowan.” N.T. 9/8/2017, at 6 (emphasis added). It
is reasonable to conclude from Officer Biles’ testimony that Officer Schaffer
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was the backup to which Officer Biles referred. Again, the suppression court’s
findings were supported by the record.8
The court of common pleas, sitting as an appellate court, was bound by
the factual findings of the suppression court because they were supported by
the record. In light of the facts found by the suppression court, Appellee was
stopped by an officer who was acting on the orders of another officer with
probable cause to arrest and search Appellee. Hence, Appellee was the
subject of a lawful arrest. See Kenney, 297 A.2d at 796. The court of
common pleas erred in reversing the decision of the suppression court and
we, therefore, vacate its rulings. The order of the Court of Common Pleas is
vacated. Appellee’s conviction and sentence are reinstated.
Order reversed. Appellee’s conviction and judgment of sentence of
September 8, 2017, are reinstated. Jurisdiction relinquished.
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8 We reject Appellee’s contention that the present case is distinguishable from
Yong in that Officer Biles, the investigating officer, did not have probable
cause to seize Appellee, and therefore probable cause could not be imputed
to the arresting officer, Officer Schaffer. See Brief for Appellee at 11-12.
Officer Biles witnessed Appellee participate in what he believed, based on his
training and experience, to be three drug transactions in a location about
which he had received complaints of drug trafficking. Officer Biles had
probable cause to search and seize Appellee. See Commonwealth v.
Thompson, 985 A.2d 928, 936 (Pa. 2009). Moreover, as previously noted,
the court of common pleas did not find that Officer Biles lacked probable cause
to seize Appellee. See p.6, n. 7, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/19
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