Com. v. Cox, N. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NATHAN COX
Appellant No. 2245 EDA 2016
Appeal from the Judgment of Sentence July 20, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0011616-2015
BEFORE: LAZARUS, J., SOLANO, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED MAY 08, 2017
Nathan Cox appeals from the judgment of sentence, entered in the
Court of Common Pleas of Philadelphia County, after the Honorable Paul
Penepinto found him guilty of multiple drug offenses'. After careful review,
we affirm.
The trial court set forth the facts of this case as follows:
At the hearing on [Cox's] motion to suppress, Police Officer
Joseph Ferrero testified that on October 30, 2015, at
approximately 8:30 p.m., his tour of duty took him and his
partner, Officer Grant to the location of 1227 Chancellor Street
in the city and county of Philadelphia. The officers went to that
* Former Justice specially assigned to the Superior Court.
' Possession with Intent to Deliver (PWID), 35 P.S. § 780-113(a)(32), and
Knowing and Intentional (K/I) Possession of Controlled Substances, 35 P.S.
§ 780-113(a)(30).
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location for both narcotics enforcement and because that
particular corridor of Chancellor is a high crime area.
Officer Ferrero testified that he turned onto the 1200 block of
Chancellor at approximately 8:35 p.m., in an unmarked police
car. Furthermore, Officer Ferrero testified that when he turned
down Chancellor Street he observed Appellant standing in the
middle of the street, with another male, later identified as James
Taylor, and [Taylor] handed this Appellant denominations of
United States currency. At that time[,] the Appellant placed the
United States currency in his right cargo pants pocket and then
retrieved a pill bottle from that pocket. Appellant, using a
pinching motion, then handed small objects to [Taylor]. [Taylor]
and [Cox] looked in the direction of the officers and both parties
began to walk away. Shortly thereafter, Officer Ferrero stopped
Taylor and Officer Grant stopped [Cox]. In Taylor's left hand
was a small rock of an off-white chunky substance alleged crack
cocaine and placed on property receipt number 3212913. Also
recovered from Taylor was a glass crack pipe, placed on property
receipt number 3212910. Also recovered from the same right
cargo pants pocket where Officer Ferrero observed [Cox],
[Officer Ferrero] recovered $167 dollars United States Currency,
placed on property receipt number 3212910. Also, recovered
from that same right cargo pants pocket where Officer Ferrero
observed [Cox][] both retrieve and place the pill bottle back
into[] was an amber pill bottle containing thirty-two peach
colored pills later identified as alprazolam, schedule IV narcotic,
one off-white chunky small rock, alleged to be crack cocaine,
and on red and yellow jar, both containing a green weedy
substance, alleged marijuana.
When Officer Ferrero turned down Chancellor Street, he testified
that his vantage point of [Cox] was through the windshield of his
vehicle and he had a profile of [Cox's] right side and [Taylor's]
left side. In addition, Officer Ferrero testified his headlights were
turned on and there are lights on the 1200 block of the
conversation between Appellant and [Taylor].
Officer Ferrero has been a police officer for twenty-one years in
the 6th district as a part of the Narcotics Enforcement team, and
also part of the vice enforcement team since 2007. He has been
involved in over fifty arrests for narcotics, robbery, assault, and
prostitution in the 1200 block of Chancellor Street since 2015.
Based on his experience with that part of Chancellor Street being
high crime and his observation from the interaction between
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[Cox] and [Taylor], specifically [Cox's] pinching motion to
[Taylor's] open hand, Officer Ferrero believed that [Cox] was
engaged in an illegal narcotics transaction. Officer Ferrero
testified he has previously observed this pinching motion during
his time working in the [sixth] district. More specifically, Officer
Ferrero testified that 'probably every time' in the past that he
has observed the pinching motion used by [Cox] he has made a
narcotics arrest.
Trial Court Opinion, at 2-4 (N.T. citations omitted).
On May 25, 2016, following a waiver trial, the trial court found Cox
guilty of all charges. The trial court imposed a sentence of fifteen to thirty
months' imprisonment and two years' reporting probation. Cox filed a timely
appeal, and on July 18, 2016, he filed a court -ordered concise statement of
errors complained of on appeal pursuant to Rule 1925(b) of the Pa.R.A.P.
On October 20, 2016, Cox filed a supplemental statement of errors. On
appeal, Cox claims:
Did not the court below err in denying [Cox's] motion to
suppress the physical evidence recovered from [Cox's] pocket,
where the [Officer Ferrero] came upon [Cox] handing [Taylor]
objects after [Cox] accepted money, but where an insufficient
nexus was established between the [Officer Ferrero's]
experience and his observations that would give rise to probable
cause under the totality of the circumstances?
Brief of Appellant, at 3.
In reviewing a challenge to the suppression court's denial of a motion
to suppress, we apply the following standard of review:
Where the defendant challenges an adverse ruling of the
suppression court, we will consider only the evidence for the
prosecution and whatever evidence for the defense which is
uncontradicted on the record as a whole; if there is support on
the record, we are bound by the facts as found by the
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suppression court, and we may reverse that court only if the
legal conclusions drawn from these facts are erroneous.
Moreover, even if the suppression court did err in its legal
conclusions, the reviewing court my nevertheless affirm its
decision where there are other legitimate grounds of
admissibility of the challenged evidence.
Commonwealth v. O'Shea, 567 A.2d 1023, 1028 (Pa. 1989) (citations
omitted). When addressing challenges to the denial of a suppression
motion, this Court must view the evidence in a light favorable to the
Commonwealth, as the prevailing party. Commonwealth v. Jackson, 907
A.2d 540, 542 (Pa. Super. 2006). Cox claims the observations made by
Officer Ferrero did not meet the requirements for probable cause set forth in
Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009). We disagree.
Judge Penepinto correctly denied Cox's suppression motion.
Probable cause justifying a warrantless arrest is determined by the
totality of the circumstances. See Commonwealth v. El, 933 A.2d 657(Pa. Super. 2007). The suppression court may regard a police officer's
experience as a relevant factor in determining probable cause for arrest. Id.However, a suppression 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." Id. at 935.
In addition to an officer's experience, additional factors the trial court
may consider include: (1) an officer's close knowledge of the designated
high crime area; (2) his specific knowledge about drug sales, packaging and
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hand-to-hand drug exchanges on the street; and (3) his ability to connect
the activity in question to past observations and arrest for similar conduct.
Id. at 936 ("[E]vidence at the suppression hearing established that [the
officer] was a nine-year veteran of the police force who was on undercover
patrol in a high crime area . . . [the officer] was personally familiar with
heroin sales activity in the neighborhood, heroin packaging, and hand-to-
hand drug exchanges on the street. In drawing a nexus between his
experience and the observation he made, [the officer] testified that he had
seen this type of 'exchange done several hundred times' on the street and
had made several hundred narcotics arrests of this very type").
Here, Officer Ferrero was conducting his tour of duty in the area of the
1200 block of Chancellor Street for both narcotic enforcement; he testified
that particular part of Chancellor Street is a high crime area. See In re
D.M., 781 A.2d 1161 (Pa. 2001) (a court may consider fact that a stop
occurred in a high crime area in assessing the totality of the circumstances).
Officer Ferrero stated that while on his tour of duty he observed Cox
standing in the middle of Chancellor Street with Taylor, who placed
denominations of United States currency in Cox's hand. Cox then retrieved
a "pill bottle" from his pocket and withdrew from it a small object, which he
placed in Taylor's hand using a "pinching motion." N.T. Suppression
Hearing, 5/18/16, at 8. When Officer Ferrero approached Cox and Taylor,
both quickly dispersed in opposite directions. See Commonwealth v.
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Gorby, 588 A.2d 902 (Pa. 1991) (evidence of flight is admissible and
relevant to establish an inference of guilt).
Officer Ferrero testified that he has been a Narcotics Enforcement
Team officer since 1995, the vice enforcement team since 2007 and an
officer in the sixth district for twenty-one years. Officer Ferrero's testified
that in 2015 he made "over 50" arrests in the area of 1200 Chancellor
Street. Id. at 10. Furthermore, Officer Ferrero stated that during his time
as a police officer, he has observed the "pinching motion" conducted by Cox
several times, and "every time" he has executed an arrest incident to
observing that motion, he recovered narcotics. Id. at 18.
Here, the totality of the circumstances suggest Officer Ferrero's
observations, experience, training and knowledge of the particular area are
sufficient to establish the requisite nexus necessary to support probable
cause for a warrantless arrest.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/8/2017
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