Com. v. Oates, T. ( 2017 )


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  • J-S74018-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    TYRIEK OATES                               :
    :
    Appellant               :   No. 2447 EDA 2015
    Appeal from the Judgment of Sentence January 16, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
    No(s): CP-51-CR-0012603-2013
    BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.
    MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 20, 2017
    Tyriek Oates appeals nunc pro tunc from his judgment of sentence,
    entered in the Court of Common Pleas of Philadelphia County, following his
    conviction for possession with intent to deliver narcotics1 and possession of a
    controlled substance of a person not registered.2         After careful review, we
    affirm.
    The trial court aptly summarized the relevant facts of the case, from the
    suppression hearing, as follows:
    The Commonwealth presented the testimony of Police Officer
    David Ewing and [Police Officer] Daniel Villafane. In summary[,]
    Police Officer Ewing testified that on July 27, 2013, at
    approximately 8:20 to 8:30 p.m., he was on duty as [a]
    Philadelphia police officer and was in the area of 1119
    Moyamensing Avenue. Police Officer Ewing was in an unmarked
    vehicle in plain clothes with a fellow officer at the time. He stated
    ____________________________________________
    1   35 P.S. § 780-113(a)(3).
    2   35 P.S. § 780-113(a)(16).
    J-S74018-17
    he observed a white male, identified as Mr. Rossi, standing in the
    area of the 1200 [b]lock of Moyamensing Avenue with money in
    his left hand and then speaking on his cell phone, which he held
    in his right hand.
    He stated that upon seeing this, his partner drove the unmarked
    vehicle around the block and parked on Moyamensing Avenue, up
    the street from where they made this initial observation. He
    exited the vehicle and walked in the direction of where he was
    able to observe Mr. Rossi’s actions.
    Police Officer Ewing stated that he then observed a black Chrysler
    300 pull up to 1119 Moyamensin Avenue and saw the defendant
    exit this vehicle and approach Mr. Rossi, who was now standing in
    the doorway of that address. He testified that he observed Mr.
    Rossi hand the defendant an unknown amount of money and then
    observed the defendant hand Mr. Rossi small objects into his
    open[] palm.
    At that point Officer Ewing testified that he radioed to his backup
    team to follow the black Chrysler. Police Officer Ewing then
    walked across the street after the Chrysler left and Mr. Rossi had
    gone inside of 1119 Moyamensing Avenue. Through partially
    opened vertical blinds, he was able to observe Mr. Rossi with a
    small plastic bag of white powdery substance 3 that he suspected
    to be crack cocaine. At that point he testified that he radioed the
    backup team to stop the black Chrysler that the defendant was in.
    On cross-examination, Police Officer Ewing reiterated that he
    observed clearly what he had previously testified to, including
    being able to see into the home through [the] window after what
    he suspected was a narcotics transaction, because of the open
    position that the vertical blinds were in when he made this
    observation. Photographs admitted into evidence supported his
    testimony that the blinds were partially opened.
    At the time of this incident, Police Officer Ewing had been a police
    officer for nine years and testified that he had conducted over 100
    narcotics surveillances prior to this surveillance and made what
    ____________________________________________
    3 Officer Ewing actually testified that he saw “two clear bags with an off-white
    chunky substance which [he] believed to be crack cocaine” in Rossi’s hand
    through the vertical blinds, immediately following the observed exchange with
    Oates. N.T. Suppression Motion, 1/7/14, at 7-8. However, a search incident
    to Oates’s arrest did uncover one small bag containing an off-white chunky
    substance in Oates’s underwear. 
    Id. at 46.
                                               -2-
    J-S74018-17
    he estimated to be 500 narcotics arrests for crack cocaine in his
    career up to that point. He testified that he believed he had
    observed a hand-to-hand narcotics transaction take place
    between Mr. Rossi and [Oates].
    The Commonwealth then called Police Officer Villafane, who
    testified in summary that he was acting as a backup to Police
    Officer Ewing and his partner on the evening of July 27, 2013.
    This [o]fficer stopped the black Chrysler 300 that the defendant
    was a passenger in after being directed to do so by Police Officer
    Ewing over police radio. He stated that the defendant was in the
    passenger’s seat and initially provided a driver’s license with false
    information when he was asked for his identification. [Oates] was
    then placed under arrest and a search incident to that arrest
    revealed [Oates] had small plastic bags, as well as a larger
    sandwich type bag on his person, both of which contained a white
    powdery substance of suspected crack cocaine, as well as a plastic
    bag containing alleged heroin and $635.00.
    The confiscated narcotics tested positive for cocaine base and
    heroin. The narcotics, the currency, and the cell phone [were]
    recovered from [Oates] and were all placed on property receipts.4
    Trial Court Opinion, 1//19/17, at 5-7 (footnotes omitted).
    On November 12, 2013, Oates filed a motion to suppress arguing that
    his arrest was illegal because the police did not have probable cause to believe
    that he was involved in criminal activity and, therefore, all the physical
    evidence recovered from the arrest should be suppressed.          On January 7,
    2014, the court held a suppression hearing; at the conclusion of the hearing,
    ____________________________________________
    4 Although on cross-examination Officer Villafane testified that the vehicle
    Oates was in was stopped at 15th and Shunk Streets in the City of
    Philadelphia, all the police paperwork indicated that Oates was stopped in the
    1200 block of Moyamensing Avenue. N.T. Suppression Hearing 1/7/14, at 45.
    The trial court, however, determined that this fact was not of any significance
    to the overall facts of this case for purposes of suppression where the location
    of the vehicle stop was irrelevant to the issue of probable cause.
    -3-
    J-S74018-17
    the court denied the motion and proceeded to a non-jury trial.        See N.T.
    Suppression Hearing, 1/7/2017, 67. Oates was found guilty of the above-
    mentioned offenses and was sentenced to 21-42 months’ incarceration,
    followed by three years of probation.5
    On appeal, Oates raises the following issues for our consideration:
    (1)    Did the suppression court err by finding probable cause
    existed to arrest [Oates] based on the police [officer]’s
    observation of a single hand[-]to[-]hand transaction
    coupled with the supposed plain sight of drugs that were not
    associated with [Oates]?
    (2)    Did the lower court err by finding that the police conducted
    a lawful frisk of [Oates] where they did not articulate that
    the items seized from him were immediately identifiable as
    contraband?
    Probable cause to arrest and search exists where the facts and
    circumstances within the knowledge of an officer are based upon reasonably
    trustworthy information and are sufficient to warrant a man or woman of
    reasonable caution in the belief that a suspect has committed or is committing
    a crime. Commonwealth v. Thompson, 
    985 A.2d 928
    (Pa. 2009). In
    determining whether probable cause exists, an appellate court applies a
    totality of the circumstances test. “A police officer’s experience may fairly be
    regarded as a relevant factor in determining probable cause.”       
    Id. at 936.
    However, there must be a nexus between the officer’s experience and the
    search, arrest, or seizure of evidence. Id.
    ____________________________________________
    5 The section 780-113(a)(16) offense merged, for sentencing purposes, with
    the possession with intent to deliver charge.
    -4-
    J-S74018-17
    In Thompson, a police officer with nine years of experience was
    patrolling the streets in a high crime area. The officer observed the defendant
    hand money to another individual in exchange for a small object. 
    Id. at 930.
    Relying upon his experience, the officer believed that a drug transaction had
    just transpired. The officer stopped the defendant and recovered heroin from
    the appellant's pocket. 
    Id. The Supreme
    Court held that “a police officer's
    experience may fairly be regarded as a relevant factor in determining probable
    cause.”   
    Id. at 935.
    However, the Thompson Court cautioned courts that
    they “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.”   
    Id. (quoting Dunlap,
    941 A.2d at 676).
    “Indeed, a factor becomes relevant only because it has some connection to
    the issue at hand.” 
    Id. Here, like
    in Thompson, Officer Ewing observed a single hand-to-hand
    transaction of currency exchanged for a small, unidentified object.     Under
    these limited circumstances, the value of the police officer’s experience
    became critical to the probable cause determination. Because Officer Ewing’s
    observation of the lone transaction, by itself, did not create probable cause,
    his experience was necessary to determine whether probable cause existed.
    As stated in Thompson, that experience has value only if the officer can
    demonstrate a nexus between the experience and the observed behavior.
    -5-
    J-S74018-17
    Viewing the totality of the circumstances, we conclude that probable
    cause existed to arrest Oates. Here, Officer Ewing observed Oates approach
    Rossi and given him currency in exchange for small objects.        Officer Ewing
    testified that through partially opened vertical blinds6 he clearly saw “two clear
    bags with an off-white chunky substance which [he] believed to be crack
    cocaine” in Rossi’s hand immediately following the observed exchange with
    Oates. N.T. Suppression Hearing, 1/7/14, at 7-8. Officer Ewing was a nine-
    year veteran of the Philadelphia Police Force at the time of the arrest, had
    conducted over 100 narcotic surveillances, and estimated that he had made
    500 arrests for crack cocaine in his career. 
    Id. at 10-11.
    Moreover, Officer
    Ewing testified that he and his partner were in the process of following another
    suspect, who had just been observed the night before at the exact location of
    12th and Moyamensing Avenue dealing narcotics, when they saw the instant
    transaction between Oates and Rossi. 
    Id. at 12.7
    Accordingly, we conclude that probable cause to arrest and search Oates
    existed where the facts and circumstances within Officer Ewing’s knowledge
    were based upon reasonably trustworthy information and were sufficient to
    ____________________________________________
    6The Commonwealth introduced a photograph showing that the window blinds
    were open; Officer Ewing testified that the photograph accurately depicted the
    scene as he had viewed it at the time immediately after the exchange between
    Rossi and Oates. N.T. Suppression Hearing, 1/7/14, at 31-32; 42.
    7 Because we have determined that Office Ewing lawfully arrested Oates, there
    is no need to consider whether the evidence could have been lawfully seized
    as a frisk incident to an investigatory stop.
    -6-
    J-S74018-17
    warrant an individual, of reasonable caution, to believe that Oates had
    committed or was committing a crime.   
    Thompson, supra
    .
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/20/2017
    -7-
    

Document Info

Docket Number: 2447 EDA 2015

Filed Date: 12/20/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024