Com. v. Oates, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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1 35 P.S. § 780-113(a)(3).
2 35 P.S. § 780-113(a)(16).
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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
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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.
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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,
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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.
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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.
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5 The section 780-113(a)(16) offense merged, for sentencing purposes, with
the possession with intent to deliver charge.
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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.
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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
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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.
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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
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