Com. v. Black, T. ( 2018 )

J. S04037/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TISHAUN T. BLACK, : No. 1147 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, June 22, 2017,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0005891-2016
BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2018
Tishaun T. Black appeals from the June 22, 2017 judgment of
sentence entered in the Court of Common Pleas of Dauphin County following
his conviction in a waiver trial of two counts of possession with intent to
deliver (“PWID”), one count of criminal use of a communication facility, two
counts of use/possession of drug paraphernalia, and one count of possession
of a controlled substance.1 The trial court sentenced appellant to an
aggregate term of imprisonment of five to ten years. We affirm.
The trial court set forth the following factual history:
At the suppression hearing, the
Commonwealth presented the testimony of Police
Officer Nicholas Ishman of the Harrisburg Police
Department. Officer Ishman has been a police
1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), 35 P.S. §§ 780-
113(a)(32) & (a)(16), respectively.
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officer for nine years. Officer Ishman testified to the
events that took place on September 17, 201[6], the
date of the incident. Officer Ishman has had
numerous prior contacts with [a]ppellant, including
prior drug arrests and was aware of a prior
arrest.[Footnote 10] From following [a]ppellant on
social media, Officer Ishman was aware that
[a]ppellant sometimes goes by the nickname
“Boobie.”
[Footnote 10] Officer Ishman follows
[a]ppellant on social media.
Around 10:30 p.m. on the night of the
incident, Officer Ishman was talking to a confidential
informant (“CI”) who set up a drug buy for an ounce
of crack. The CI informed Officer Ishman that the
purchase would be from someone named “Boobie.”
The CI sent a text message to 717-[XXX-XXXX]
asking for food (food is sometimes used as a code
word for crack). The CI also arranged to purchase
an 8th of an ounce of marijuana. Between texting
and phone calls, the deal was to take place at
2743 Reel Street in Harrisburg, Pennsylvania.
Officer Ishman testified that he knew that
[a]ppellant’s parole address was 2743 Reel Street
and that this is a high drug crime area. As Officer
Ishman and the CI approached Reel Street, the CI
received a phone call from the same number as
mentioned above. The CI relayed to Officer Ishman
that the person on the other end of the phone call
was standing in the middle of the street. When
Officer Ishman turned onto Reel Street, he saw
[a]ppellant standing in the middle of the street and
no one else around at that time.[Footnote 11] As
Officer Ishman pulls up to [a]ppellant, [a]ppellant
immediately starts running. After 20-30 yards,
[a]ppellant lies down and Officer Ishman approaches
him and does a pat down. During this pat down,
Officer Ishman felt a package that he immediately
knew to be marijuana. Officer Ishman removed a
large Wal-Mart bag from [a]ppellant’s pocket which
contained a large amount of marijuana and a large
amount of crack cocaine, a digital scale, two
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Oxycodone pills (in the marijuana), two cell phones,
and $300 in cash. Finally, on direct-examination,
Officer Ishman testified that he has prior experience
in narcotics investigation[,] including academy
training in narcotics and has made hundreds of
marijuana arrests throughout his career.
[Footnote 11] The CI reached out to
[a]ppellant around 1:00 a.m. in the early
morning hours.
On cross-examination, Officer Ishman testified
that the CI was recently arrested and was looking for
a way to help himself out. Officer Ishman further
testified that he did not see any controlled substance
and that he never heard who the CI was talking to
on the phone.
Trial court opinion, 8/23/17 at 2-5 (footnote 9 and citations to notes of
testimony omitted).
As previously stated, appellant was convicted of the aforementioned
crimes in a waiver trial and sentenced to an aggregate term of imprisonment
of five to ten years. The record reflects that appellant filed a timely notice of
appeal to this court. The trial court then ordered appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Following the grant of an extension of time, appellant filed a timely
Rule 1925(b) statement. The trial court then filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Whether the Honorable Trial Court erred in denying
suppression of the evidence where the officer
arrested [a]ppellant without any description of a
suspect and subsequently searched [a]ppellant
without witnessing a crime or criminal activity afoot?
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Appellant’s brief at 7.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
Our standard of review in addressing a challenge to
the denial of a suppression motion 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, we 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, we are
bound by these findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . .
the appeal of the determination of the suppression
court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding
on an appellate court, whose duty it is to determine
if the suppression court properly applied the law to
the facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super.
2012) (citations omitted).
Appellant complains that because Officer Ishman did not have a
physical description of the suspect who was to sell the crack cocaine and
marijuana to the CI and because Officer Ishman did not observe appellant
engage in criminal activity, the evidence that Officer Ishman seized should
have been suppressed.
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In evaluating [a]ppellant’s argument that he was
unlawfully arrested, we take note of the following
principles:
[L]aw enforcement authorities must have
a warrant to arrest an individual in a
public place unless they have probable
cause to believe that 1) a felony has
been committed; and 2) the person to be
arrested is the felon. A warrant is also
required to make an arrest for a
misdemeanor, unless the misdemeanor
is committed in the presence of the
police officer. The legislature, however,
has authorized law enforcement officers
to make warrantless arrests for
misdemeanors committed outside their
presence in certain circumstances.
In the Fourth Amendment context, the fact that the
officer does not have the state of mind which is
hypothecated by the reasons which provide the legal
justification for the officer’s action does not
invalidate the action taken as long as the
circumstances, viewed objectively, justify that
action. In other words,
Fourth Amendment reasonableness is
predominantly an objective inquiry. We
ask whether the circumstances, viewed
objectively, justify the challenged action.
If so, that action was reasonable
whatever the subjective intent
motivating the relevant officials. This
approach recognizes that the Fourth
Amendment regulates conduct rather
than thoughts . . . .
....
[T]he inquiry must simply focus on whether the
relevant facts and circumstances within the arresting
officer’s knowledge are sufficient to lead any person
of reasonable caution to conclude that an offense has
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been or is being committed, based on a probability,
and not a prima facie showing, of criminal activity.
Commonwealth v. Martin, 101 A.3d 706, 721-722 (Pa. 2014) (internal
citations and quotation marks omitted).
Stated differently, probable cause exists where “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 omitted). We need not
discern whether the officer’s belief was more likely correct than incorrect.
Id. A probability of criminal activity, rather than a prima facie showing
thereof, is sufficient. Id. To answer the question, we examine the totality
of the circumstances. Id.Here, the record reflects that Officer Ishman, in his ninth year as a
police officer,2 has worked in the street crimes unit of the police department
for five years and has had numerous encounters with appellant, including
drug arrests. (Notes of testimony, 3/2/17 at 3, 4, 7.) Officer Ishman also
followed appellant on social media3 and learned that appellant went by the
2 The record reflects that Officer Ishman has Police Academy training in
narcotics, attended narcotics conferences, and has made hundreds of
marijuana arrests. (Notes of testimony, 3/2/17/at 12.)
3 The record reflects that appellant had two Facebook pages. (Notes of
testimony, 3/2/17 at 5.)
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nickname “Boobie.” (Id. at 5.) In addition to appellant’s identifying himself
by that nickname on social media, other informants told Officer Ishman that
appellant went by the nickname “Boobie.” (Id at 5-6.)
The record further reflects that at approximately 10:30 on the night of
September 17, 2016, Officer Ishman spoke with the C.I. who stated that
they could buy an ounce of crack from “Boobie.” (Id.) Officer Ishman
asked the C.I. if “Boobie” was appellant, and the C.I. confirmed that
“Boobie” was, indeed, appellant. (Id.) The C.I. then texted a number that
the C.I. had listed as “Boobie,” asking whether “Boobie” had any “food.”
(Id.) The C.I. confirmed that “food” was code for “crack.” (Id.) The C.I.
received a return text message stating the price of $1,150 for an ounce of
crack. (Id. at 7.) The C.I. also arranged to purchase an eighth of an ounce
of marijuana from “Boobie.” (Id.) The C.I. and “Boobie” then made
arrangements for the purchases via text messaging and oral telephone
communications. (Id. at 8-9.) The two arranged for the sales to occur in
front of 2743 Reel Street, which was a high-crime area, as well as
appellant’s parole address. (Id. at 7, 9-10.)
The record reflects that after completing arrangements for the drug
sales, the C.I. received a telephone call from the person the informant listed
as “Boobie.” (Id. at 10.) The C.I. informed Officer Ishman that the target
was standing in front of 2743 Reel Street residence. (Id.) Officer Ishman
then drove to the Reel Street location, where he saw appellant standing in
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the middle of the street in front of appellant’s parole residence, 2743 Reel
Street. (Id. at 11.) Officer Ishman testified that no one else was out on the
street at that time. (Id.) Officer Ishman, who was in uniform, then pulled
his car up to appellant, and appellant immediately ran north on Reel Street.
(Id.) Officer Ishman chased appellant for approximately 20 to 30 yards.
(Id.) Appellant then laid down and started cursing. (Id.) Officer Ishman
handcuffed appellant and conducted a pat-down search; felt what he knew
to be marijuana; removed a Wal-Mart bag from appellant’s pocket that
contained marijuana and crack cocaine, a digital scale, two Oxycodone pills
in the marijuana, two cell phones, and $300 in cash. (Id. at 12.)
Considering, as we must, the Commonwealth’s evidence, as well as
the uncontradicted evidence when read in the context of the record as a
whole, the record supports the trial court’s finding that based upon the
totality of the circumstances within Officer Ishman’s knowledge, a person of
reasonable caution would conclude that criminal activity was probable.
Therefore, because the record supports the trial court’s factual findings and
its legal conclusions drawn from those facts were correct, appellant’s claim
necessarily fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/27/2018
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