Com. v. Yong, A.

J-A02021-15
2015 Pa. Super. 152
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALWASI YONG
Appellant No. 1972 EDA 2013
Appeal from the Judgment of Sentence of June 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0002313-2012
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
OPINION BY WECHT, J.: FILED JULY 16, 2015
This appeal requires that we determine the precise scope of the
“collective knowledge doctrine” in Pennsylvania. We conclude that the trial
court’s application of the doctrine to the facts of Alwasi Yong (“Yong”)’s
arrest stretched the rule beyond its breaking point. As a result, the trial
court erred in denying Yong’s pretrial motion to suppress physical evidence.
We reverse the trial court’s order denying that motion, and we remand for
proceedings consistent with this opinion.
On September 21, 2011, Officer Joseph McCook of the Philadelphia
Police Department was conducting narcotics surveillance on the 3200 block
of North Fairhill Street in Philadelphia. On that day, Officer McCook used a
confidential informant (“CI”) to conduct a controlled narcotics purchase.
Officer McCook observed Yong standing in front of a residence located at
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3202 Fairhill Street. The CI approached Yong, had a brief conversation with
him, and then handed him $120 in pre-recorded currency. Yong passed the
money to his codefendant, Samuel Vega, who then entered the residence
and later returned with twelve packets of marijuana. Vega then handed the
marijuana to the CI.
On September 22, 2011, police conducted surveillance of the same
area, but did not observe Yong. The CI purchased twenty-five packets of
marijuana, which were similar to the twelve packets that the CI previously
had purchased from Yong and Vega. However, the record does not disclose
who sold the marijuana to the CI on September 22, 2011. See Notes of
Testimony Suppression (“N.T.S.”), 4/17/2013, at 16 (“[T]here was a
transaction. I’m not sure if it was with Vega or not.”).
On September 23, 2011, the police continued their narcotics
surveillance in the same area. Officer McCook observed Yong and Vega in
front of 3202 Fairhill Street. Linwood Fairbanks, an undercover narcotics
officer, approached Vega and handed him $40 in pre-recorded currency.
Vega then walked over to a nearby vacant lot, retrieved something from the
ground, and returned with eight packets of marijuana, which he gave to
Officer Fairbanks.
Approximately ten minutes after this transaction, police executed a
search warrant on 3202 North Fairhill Street. When police entered the home
to execute the search warrant, Yong was standing in the first-floor living
room. Without being prompted to do so by any other officer, and without
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knowing that other officers had observed Yong’s prior drug activity, Officer
Gerald Gibson immediately arrested Yong. Officer Gibson discovered a
loaded .38 revolver concealed under Yong’s waistband.
As a result of these events, Officer McCook filed a criminal complaint
charging Yong with various drug and firearm offenses. On September 7,
2012, Yong filed an omnibus pretrial motion seeking to suppress the physical
evidence obtained from the search of his person. Therein, Yong argued that
Officer Gibson had neither reasonable suspicion to perform a Terry1 frisk,
nor probable cause to arrest and search him.
On April 17, 2013, the trial court held a hearing on Yong’s motion to
suppress. The Commonwealth’s sole witness, Officer McCook, testified that
he personally observed Yong accept money from the CI on September 21,
2011. Officer McCook further testified that Yong then handed the money to
Vega, who gave the CI twelve packets of marijuana. Officer McCook also
testified that, throughout his eighteen-year career as a Philadelphia Police
Officer, he had observed “hundreds” of narcotics transactions where one
participant accepts the money and then hands it off to a co-conspirator.
N.T.S. at 12.
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1
See Terry v. Ohio, 392 U.S. 1 (1968) (holding that police officers
may conduct a limited pat-down search for weapons if they reasonably
believe that criminal activity is afoot and that the individual is armed and
dangerous).
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Officer Gibson did not testify at the suppression hearing. Officer
McCook testified that he observed Yong participate in what he believed to be
a narcotics transaction on September 21, 2011. Officer McCook further
testified that Officer Gibson arrested and searched Yong on September 23,
2011 when police executed the search warrant on 3202 North Fairhill Street.
While Officer McCook averred that he was present when Officer Gibson
recovered the firearm from Yong’s waistband, he stated that Officer Gibson
arrested Yong “[j]ust as [he] was going inside.” Id. at 18. Officer McCook
explained that “there were six or seven, maybe eight” officers executing the
search warrant, and that he was “towards the rear” as they entered the
home. N.T.S. at 17. Officer McCook did not testify that he informed Officer
Gibson of Yong’s role in the narcotics transaction on September 21, 2011,
nor did Officer McCook testify that he instructed Officer Gibson to arrest
and/or search Yong.
At the conclusion of the hearing, Yong argued that his arrest was
unsupported by probable cause because the Commonwealth failed to
establish that “anyone spoke to Officer Gibson and told him what they had
seen on the 21st.” Id. at 19. The trial court denied Yong’s motion to
suppress, reasoning that Officer Gibson possessed sufficient probable cause
to arrest Yong because Officer McCook’s knowledge could be imputed to all
of the officers who were executing the search warrant.
On April 22, 2013, Yong proceeded to a jury trial. On April 24, 2013,
the jury found Yong guilty of carrying a firearm without a license and of
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conspiracy to commit possession with intent to deliver (“PWID”). 2 Because
Yong stipulated that he had a prior felony conviction that prohibited him
from owning a firearm, the trial court also found Yong guilty of persons not
to possess a firearm3 in a severed proceeding.
By oral motion advanced during his sentencing hearing on June 12,
2013, Yong argued that the jury’s guilty verdict on the conspiracy to commit
PWID count was against the weight of the evidence. The trial court denied
Yong’s motion, and sentenced him to five to ten years’ imprisonment for
persons not to possess a firearm, with concurrent terms of three and one
half to seven years’ imprisonment for firearms not to be carried without a
license and five to ten years’ imprisonment for conspiracy to commit PWID.
On July 8, 2013, Yong timely filed a notice of appeal. On July 15,
2013, the trial court directed Yong to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Yong timely
complied.
Yong presents two issues for our consideration:
1. Did the trial court err in denying Yong’s pretrial motion to
suppress the search of his person where the arresting officer
had neither probable cause to arrest Yong nor reasonable
suspicion to perform a [Terry] frisk where Yong was merely
present during the execution of a search warrant?
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2
18 Pa.C.S. §§ 6106(a)(1), and 903 (35 P.S. § 780-113(a)(30)),
respectively.
3
18 Pa.C.S. § 6105(a)(1).
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2. Was the evidence insufficient to support Yong’s conviction for
criminal conspiracy where a veteran police officer wrote in his
investigation report that Yong entered one house and then
handed a clear bag to a confidential informant[,] but that
same officer twice testified that it was [Vega] who went into a
different house and handed the same small objects to the
same confidential informant?
Brief for Yong at 7 (footnote omitted).
Yong first contends that the trial court erred in denying his motion to
suppress the physical evidence obtained from his person. Our standard of
review in this context is well-settled:
In addressing a challenge to a trial court’s denial of a
suppression motion, we are limited to determining whether the
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Since the
Commonwealth prevailed in 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 record
supports the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal conclusions drawn
therefrom are in error.
Commonwealth v. Brown, 64 A.3d 1101, 1104 (Pa. Super. 2013) (citation
omitted). Our scope of review in suppression matters includes only the
suppression hearing record, and excludes any evidence elicited at trial. See
In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
Probable cause to arrest is not mere suspicion or conjecture. The
relevant inquiry is “whether 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
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reasonable caution in the belief that the suspect has committed or is
committing a crime.” Commonwealth v. Rodriguez, 585 A.2d 988, 990
(Pa. 1991).
Yong does not dispute that Officer McCook’s knowledge that Yong
participated in a narcotics transaction two days earlier amounted to
sufficient probable cause to justify a warrantless arrest. It was Officer
Gibson, not Officer McCook, who ultimately arrested Yong. Yong argues
that the trial court erred in imputing Officer McCook’s knowledge to Officer
Gibson.4 See N.T.S. at 23 (“[T]he knowledge of one is imputed to all on the
scene that day, all the [officers] who are executing the search warrant.”).
The Commonwealth maintains that Officer McCook’s knowledge of
Yong’s participation in the earlier drug transaction was imputed to Officer
Gibson under the “collective knowledge doctrine.” The Commonwealth cites
no Pennsylvania case law to support such an expansion of the rule. For the
reasons that follow, we conclude that such an interpretation would stretch
the doctrine well beyond its stated purpose.
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4
At Yong’s suppression hearing, the trial court also reasoned that the
police were “entitled” to search everyone inside of the residence because
they were executing a valid search warrant. N.T.S. at 22. This is incorrect.
We have held that, unless the police obtain an “all persons present” warrant,
mere presence during the execution of a search warrant, by itself, is
insufficient to justify a search of the person. In re J.V., 762 A.2d 376, 382
(Pa. Super. 2000).
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The collective knowledge doctrine (sometimes called the “fellow-officer
rule”) was first articulated by then circuit-court judge Warren Burger in
Williams v. United States, 308 F.2d 326 (D.C. Cir. 1962). There, an
appellant argued that his arrest was unconstitutional because the arresting
officer lacked “adequate first hand information” amounting to probable
cause. The Court rejected this theory, finding that the arresting officer
acted based upon the knowledge of another officer within the department
who clearly had probable cause to arrest the appellant.
[I]n a large metropolitan police establishment the collective
knowledge of the organization as a whole can be imputed to an
individual officer when he is requested or authorized by
superiors or associates to make an arrest. The whole complex
of swift modern communication in a large police department
would be a futility if the authority of an individual officer was to
be circumscribed by the scope of his first hand knowledge of
facts concerning a crime or alleged crime.
When the police department possesses information which would
support an arrest without a warrant in the circumstances, the
arresting officer, if acting under orders based on that
information, need not personally or first hand know all the
facts. The test, as we have said, is whether a prudent and
cautious officer in those circumstances would have reasonable
grounds—not proof or actual knowledge—to believe that a crime
had been committed and that appellant was the offender.
Id. (emphasis added).
In Whiteley v. Warden, 401 U.S. 560 (1971), the United States
Supreme Court echoed the D.C. Circuit’s reasoning. There, a county sheriff
received an uncorroborated tip stating that Whiteley and an accomplice had
burglarized two local businesses. The sheriff then obtained an arrest
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warrant based upon an insufficient showing of probable cause. See id. at
565 (“Th[e] complaint consists of nothing more than the [sheriff’s]
conclusion that the individuals named therein perpetrated the offense
described in the complaint. The actual basis for [the sheriff’s] conclusion
was . . . omitted from the complaint.”). Following the issuance of the arrest
warrant, the sheriff distributed a statewide bulletin via police radio,
requesting that any officer who encountered the suspects arrest and
extradite them.5 After hearing the bulletin, a patrol officer in a nearby
county arrested the two men and discovered evidence of the burglaries in
Whiteley’s vehicle.
The Whiteley Court held that: (1) the sheriff’s complaint was
insufficient to support the issuance of an arrest warrant; and (2) the
informer’s tip lacked sufficient indicia of reliability to provide the sheriff with
probable cause. Still, the state argued that the arresting officer reasonably
relied upon the police radio bulletin and, therefore, had sufficient probable
cause to arrest the suspect. The state urged that preventing “officers from
acting on the assumption that fellow officers who call upon them to make
an arrest have probable cause for believing the arrestees are [perpetrators]
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5
Specifically, the bulletin contained the names and physical descriptions
of the two suspects, described the vehicle that they were believed to be
traveling in, and stated that an arrest warrant for the two men had been
issued. Whiteley, 401 U.S. at 564.
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of a crime would . . . unduly hamper law enforcement.” Id. at 568
(emphasis added).
Justice John Harlan, writing for the majority, rejected this logic.
We do not, of course, question that the . . . police were entitled
to act on the strength of the radio bulletin. Certainly police
officers called upon to aid other officers in executing arrest
warrants are entitled to assume that the officers requesting aid
offered the magistrate the information requisite to support an
independent judicial assessment of probable cause. Where,
however, the contrary turns out to be true, an otherwise illegal
arrest cannot be insulated from challenge by the decision of the
instigating officer to rely on fellow officers to make the arrest.
Id. This rule, which later became known as the “collective knowledge
doctrine,” was a matter of common sense. Had the Court concluded
otherwise, the probable cause requirement could be easily circumvented;
any officer could simply instruct another officer to make an illegal arrest.
In United States v. Hensley, 469 U.S. 221 (1985), the United States
Supreme Court again considered the constitutionality of an arrest based
upon a law enforcement bulletin. Expounding the collective knowledge
doctrine’s rationale, the Court explained:
Whiteley supports the proposition that, when evidence is
uncovered during a search incident to an arrest in reliance
merely on a flyer or bulletin, its admissibility turns on whether
the officers who issued the flyer possessed probable cause to
make the arrest. It does not turn on whether those relying on
the flyer were themselves aware of the specific facts which led
their colleagues to seek their assistance. In an era when
criminal suspects are increasingly mobile and increasingly likely
to flee across jurisdictional boundaries, this rule is a matter of
common sense: it minimizes the volume of information
concerning suspects that must be transmitted to other
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jurisdictions and enables police in one jurisdiction to act
promptly in reliance on information from another jurisdiction.
Id. at 231.
Read jointly, Whiteley and Hensley instruct that the collective
knowledge doctrine serves an agency function. When a police officer
instructs or requests another officer to make an arrest, the arresting officer
stands in the shoes of the instructing officer and shares in his or her
knowledge. In Commonwealth v. Kenney, 297 A.2d 794 (Pa. 1972), the
Pennsylvania Supreme Court adopted the rationale of Whiteley, and upheld
a warrantless arrest made by a detective who lacked probable cause, where
he acted at the direction of his superior who had specific knowledge of facts
and circumstances sufficient to constitute probable cause. Pennsylvania
courts have since cited Whiteley and Hensley for the general proposition
that an arresting officer need not possess encyclopedic knowledge of the
underlying facts supporting probable cause. Instead, he or she may rely
upon an instruction6 to arrest from another officer who possesses the
required knowledge. See In re D.M., 727 A.2d 556, 558 (Pa. 1999);
Commonwealth v. Queen, 639 A.2d 443, 445 (Pa. 1994);
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6
There are no “magic words” that must pass between police officers to
invoke the collective knowledge doctrine. The requirement that there be an
actual communication between the fellow officers presents only a negligible
burden to law enforcement. An officer may issue a conclusory directive to
arrest a particular suspect. See generally 2 Wayne R. LaFave, Search and
Seizure § 3.5 (5th ed. 2012).
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Commonwealth v. Wagner, 406 A.2d 1026, 1030 (Pa. 1979);
Commonwealth v. Cotton, 740 A.2d 258, 262-63 (Pa. Super. 1999);
Commonwealth v. Fromal, 572 A.2d 711, 717 (Pa. Super. 1990).7
Instantly, there is nothing in the suppression record to suggest that:
(1) Officer McCook ordered or directed Officer Gibson to arrest Yong; or (2)
Officer Gibson received information justifying Yong’s arrest; or (3) Officer
Gibson received information, which, coupled with facts that he personally
observed, provided probable cause to arrest Yong. This lack of evidence
compels the conclusion that Officer Gibson—acting of his own accord—made
a warrantless arrest. The fact that, unbeknownst to Officer Gibson, his
colleague Officer McCook had observed Yong participate in a drug
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7
We are aware of no cases in which the Pennsylvania Supreme Court
has departed from or expanded upon the rule announced in Whiteley. In
Commonwealth v. Gambit, a panel of this Court stated that a police
officer’s knowledge can be imputed to his fellow officer where there “is some
communication or connection” between them. 418 A.2d 554, 557 (Pa.
Super. 1980). This seems to suggest that the collective knowledge may
apply in the absence of a communication, so long as a particular officer is
“connected to” an arrest. But, read in context, the inclusion of the word
“connection” appears to be an imprecise statement of the law, and not an
explicit enlargement of the doctrine. Indeed, the Court in Gambit rejected
the Commonwealth’s argument that relevant information possessed by an
officer could be imputed to an arresting officer in the absence of an
instruction or directive to arrest. Moreover, in the thirty-five years since
Gambit was decided, it has never been cited for the proposition that
knowledge can be imputed between officers in the absence of a
communication between them. Instead, our own Supreme Court has
explained that Whiteley simply allows an officer to make a warrantless
arrest “undertaken at the direction of his superior who had sufficient
knowledge of facts and circumstances to constitute probable cause to arrest
the defendant.” Commonwealth v. Queen, 639 A.2d 443, 446 (Pa. 1994).
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transaction two days earlier cannot suffice to permit the Commonwealth to
leapfrog the Fourth Amendment.
Citing decisions issued by various federal courts, the Commonwealth
encourages us to adopt a far more expansive rule. A series of conflicting
interpretations of the collective knowledge doctrine have emerged over the
last several decades. Some courts have conceptualized the collective
knowledge cases as falling into two distinct categories, vertical and
horizontal. The “vertical” collective knowledge cases present a
straightforward application of Whiteley and Hensley (i.e., where one law
enforcement officer who possesses probable cause instructs a fellow officer
to act). As discussed supra, Pennsylvania courts have consistently applied
this version of the doctrine for several decades, with little controversy.
By contrast, the “horizontal” collective knowledge cases arise when
individual law enforcement officers each possess pieces of the probable
cause puzzle, but no single police officer possesses information that amounts
to probable cause. United States v. Chavez, 534 F.3d 1338, 1345 (10th
Cir. 2008) (citing United States v. Shareef, 100 F.3d 1491, 1503-05 (10th
Cir. 1996)). Under this approach, which has never been adopted in
Pennsylvania, courts evaluate probable cause by aggregating the knowledge
of two or more police officers who are working together on an investigation.
The Commonwealth cites several of these horizontal collective
knowledge cases for the general proposition that “the information available
to a close group of officers functioning as a team is assessed as a whole.”
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Brief for Commonwealth at 10. According to the Commonwealth, we must
consider the facts within Officer McCook’s knowledge in order to determine
whether Officer Gibson had probable cause to arrest Yong.
The view that a broader, “horizontal,” collective knowledge doctrine
exists is far from unanimous. Many courts have declined to enlarge the
scope of the doctrine, and will only impute knowledge among fellow officers
where there is evidence that the arresting officer acted at the direction of
another officer. See United States v. Massenburg, 654 F.3d 480, 493
(4th Cir. 2011) (“[T]he collective-knowledge doctrine simply directs us to
substitute the knowledge of the instructing officer or officers for the
knowledge of the acting officer. . . .” (emphasis in original)); Haywood v.
United States, 584 A.2d 552, 557 (D.C. 1990) (“An arresting officer need
not have firsthand knowledge of the facts giving rise to probable cause
provided that he or she is acting at the suggestion of someone who does.”
(emphasis in original)); United States v. Woods, 544 F.2d 242 (6th Cir.
1976) (holding that supervising officer’s knowledge could not be imputed to
arresting officer where the evidence fails to demonstrate that the arrest was
based upon supervising officer’s order to arrest); State v. Cooley, 457 A.2d
352, 356 (Del. 1983) (citing Gambit, 418 A.2d 554); State v. Mickelson,
526 P.2d 583, 584 (Or. App. 1974) (“A police officer working in a team or in
a modern police organization is entitled reasonably to arrest or search on the
command or summary information of another officer.”).
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There does not appear to be a coherent rationale for enlarging the
scope of the doctrine beyond the situation where an officer with probable
cause directs a fellow officer to make an arrest.8 Extending the collective
knowledge doctrine to apply in the absence of a directive or instruction to
arrest issued by an officer who possesses probable cause serves none of the
legitimate law enforcement purposes behind the rule. See Hensley, 469
U.S. at 231 (“In an era when criminal suspects are increasingly mobile and
increasingly likely to flee across jurisdictional boundaries, this rule is a
matter of common sense: it minimizes the volume of information concerning
suspects that must be transmitted to other jurisdictions and enables police in
one jurisdiction to act promptly in reliance on information from another
jurisdiction.”). Many of the courts that have adopted the horizontal
approach to the collective knowledge doctrine have ignored the original aim
of the rule—to allow officers to rely upon succinct directives received from a
fellow officer. Paradoxically, these courts have expanded the rule, which
was intended to encourage communication between police officers while
minimizing the volume of information that officers must transmit, by
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8
Indeed, some courts have adopted the horizontal collective knowledge
approach while purporting to apply the collective knowledge doctrine in its
traditional form. See, e.g., United States v. Verdugo, 617 F.3d 565 (1st
Cir. 2010) (assessing “the collective knowledge of the agents working . . . on
[an] investigation.”).
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eliminating the requirement that officers actually communicate with one
another.
The Supreme Court has endorsed the view “that effective law
enforcement cannot be conducted unless police officers can act on directions
and information transmitted by one officer to another and that officers, who
must often act swiftly, cannot be expected to cross-examine their fellow
officers about the foundation for the transmitted information.” Id. If there
is no ‘transmitted information,’ a different result obtains. Our law does not
permit a police officer to make a warrantless arrest and then later justify it
based upon his colleague’s knowledge. To adopt the horizontal collective
knowledge approach would be to sever the doctrine from its constitutional
impetus.
Moreover, an expansive interpretation of the collective knowledge
doctrine does not comport with the fundamental requirement that
warrantless arrests be supported by probable cause. The benchmark of a
warrantless arrest is “whether 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. Rodriguez, 585 A.2d 988, 990
(Pa. 1991). In the context of probable cause to conduct a warrantless
arrest, the United States Supreme Court has explained:
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Because many situations which confront officers in the course of
executing their duties are more or less ambiguous, room must
be allowed for some mistakes on their part. But the mistakes
must be those of reasonable men, acting on facts leading
sensibly to their conclusions of probability. The rule of probable
cause is a practical, nontechnical conception affording the best
compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law
enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers’ whim or caprice.
***
In dealing with probable cause, however, as the very name
implies, we deal with probabilities. These are not technical; they
are the factual and practical considerations of everyday life on
which reasonable and prudent men, not legal technicians, act.
Brinegar v. United States, 338 U.S. 160, 175-76 (1949).
To hold that a warrantless arrest is constitutional where the arresting
officer is without direct knowledge or reasonably trustworthy information
justifying it would be to ignore the “sensibl[e] . . . conclusions of probability”
made by reasonable people. Id. A reasonable arresting officer cannot reach
a sensible conclusion based upon facts that are beyond his or her
knowledge. The post hoc imputation of knowledge among police officers is
an exercise for “legal technicians,” not “reasonable and prudent men.” Id.
In the absence of any clear authority from the United States Supreme Court,
or from our own Supreme Court, we decline to revise this standard.
Even if we were willing to adopt the horizontal collective knowledge
doctrine, it would not apply to the facts of the case before us. As the
Commonwealth notes, the courts that have accepted this formulation impute
knowledge among police officers who are “functioning as a team.” Brief for
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Commonwealth at 10. However, the horizontal collective knowledge
approach also requires “some degree of communication between the officer
who possesses the incriminating knowledge and the officer who does not.”
United States v. Banks, 514 F.3d 769, 776 (8th Cir. 2008); see also
United States v. Parra, 402 F.3d 752, 766 (7th Cir. 2005) (“Agent Hehr,
who arrested Correa, was in constant communication with Agent Becka
and Agent Chamulak. On this basis, we find the collective knowledge
doctrine applicable[.]” (emphasis added)); United States v. Terry, 400
F.3d 575, 581 (8th Cir. 2005) (“We impute information if there has been
“some degree of communication” between the officers.” (emphasis
added)); United States v. Lee, 962 F.2d 430, 435 (5th Cir. 1992)
(“[P]robable cause can rest upon the collective knowledge of the police,
rather than solely on that of the officer who actually makes the arrest, when
there is ‘some degree of communication between the two.’” (emphasis
added)). Instantly, the suppression hearing transcript lacks any testimony
that Officer Gibson and Officer McCook communicated with each other.
Thus, even the expanded collective knowledge doctrine advocated by the
Commonwealth would not preclude suppression based upon the record
before us.
Pennsylvania courts have never expanded the doctrine beyond the
situation where a police officer who possesses probable cause instructs a
fellow officer to act. See Queen, 639 A.2d at 446. We decline to adopt the
“horizontal” approach to collective knowledge, which some federal courts
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have used to aggregate knowledge among police officers functioning as a
team. In any event, even if Pennsylvania law recognized such a broad rule,
the absence of any evidence that Officers Gibson and McCook actually
communicated with one another would render the rule inapplicable to this
case.
We understand the trial court’s temptation to infer that Officer McCook
instructed Officer Gibson to arrest Yong. When a police officer observes a
suspect engage in criminal conduct and then a second police officer arrests
the suspect, one might reasonably assume that the officers communicated
with one another. The testimony presented at Yong’s trial suggests that this
is what occurred. See Notes of Testimony (“N.T.”), 4/22/2013, at 68-69
(“When I got in there I wanted to make sure that everybody was patted
down, so I told them to pat them down again. And Officer Gibson picked
[Yong] up . . . and then he started patting him down.”). Nevertheless, as a
matter of law, our scope of review in suppression matters is limited to the
suppression hearing record, and excludes any evidence elicited at trial. In
re L.J., 79 A.3d at 1085.
The result we reach in this case is not a consequence of a hyper-
technical legal rule. The collective knowledge doctrine unquestionably
authorizes police officers to act upon information or instructions from their
fellow officers. Whiteley, 401 U.S. at 568; Hensley, 469 U.S. at 231. At
Yong’s suppression hearing, it was the Commonwealth’s burden to establish
that Officer McCook directed Officer Gibson to arrest Yong. See
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Pa.R.Crim.P. 581 (“The 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.”). The suppression
record before us lacks any evidence to that effect. We are compelled to
conclude that Yong’s arrest was unconstitutional.
Because we cannot, based upon the state of this record, impute Officer
McCook’s knowledge that Yong had participated in a prior drug transaction to
Officer Gibson, we must conclude that Yong’s arrest and the subsequent
search of his person were unconstitutional. Accordingly, we reverse the trial
court’s order denying Yong’s motion to suppress.
In his second issue, Yong challenges the sufficiency of the evidence
supporting his conviction for criminal conspiracy. Even though Yong’s first
claim entitles him to relief, we nonetheless are required to address his
challenge to the sufficiency of the evidence, because double jeopardy
principles would prohibit a retrial on the conspiracy charge in the event that
this issue has merit. Commonwealth v. Palmer, 751 A.2d 223, 227 (Pa.
Super. 2000).
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
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evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proof of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all the evidence actually received must be considered. Finally,
the trier of fact while passing on the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part[,] or none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-36 (Pa. Super. 2004)
(citation omitted). Additionally, in evaluating this claim, we do not review a
diminished record. Commonwealth v. Smith, 568 A.2d 600, 603 (Pa.
1989); Commonwealth v. Parker, 644 A.2d 1245, 1247 (Pa. Super.
1994). Rather, we are required to consider all of the evidence that was
actually received, without consideration as to the admissibility of that
evidence or whether the trial court’s evidentiary rulings were correct. Smith
and Parker, supra.
Section 903 of the Crimes Code provides as follows:
(a) Definition of conspiracy.—A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
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18 Pa.C.S. § 903. Once the trier of fact finds that there was an agreement,
and that the defendant intentionally entered into the agreement, that
defendant may be liable for the overt acts committed in furtherance of the
conspiracy regardless of which co-conspirator committed the act. See
Commonwealth v. Wayne, 720 A.2d 456, 463-64 (1998).
The essence of a criminal conspiracy, which distinguishes it from
accomplice liability, is an agreement between the co-conspirators. See
Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002).
However, “[a]n explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal partnership is
almost invariably extracted from the circumstances that attend its activities.”
Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998) (en
banc) (citations omitted). Therefore, where the conduct of the parties
indicates that they were acting in concert with a corrupt purpose, the
existence of a criminal conspiracy may properly be inferred.
Commonwealth v. Snyder, 483 A.2d 933, 942 (Pa. Super. 1984). Non-
exclusive circumstances that may establish proof of a conspiracy include:
(1) an association between alleged conspirators; (2) knowledge of the
commission of the crime; (3) presence at the scene of the crime; and (4)
participation in the object of the conspiracy. Commonwealth v.
Swerdlow, 636 A.2d 1173, 1177 (Pa. Super. 1994).
Instantly, there was ample evidence that Yong intentionally aided Vega
in selling marijuana. At trial, the Commonwealth presented evidence that,
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immediately after Yong accepted currency from the CI, Vega handed the CI
twelve packets of marijuana. Two days later, Yong was present when Vega
sold marijuana to an undercover officer, and was standing in the living room
of the residence when police executed a search warrant. Based upon this
evidence, the jury was free to conclude that Yong and Vega had an
agreement whereby Yong would screen and accept payment from potential
drug purchasers, while Vega would retrieve and dole out the narcotics.
Compare Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004) (finding
sufficient evidence to support conviction for conspiracy to commit PWID
where appellant asked undercover officer if he was a “cop,” and then
introduced him to his co-conspirator who sold the officer heroin).
Accordingly, Yong’s challenge to the sufficiency of the evidence is without
merit.9
____________________________________________
9
In arguing that the evidence adduced at trial was “insufficient in both
volume and quality,” Yong appears to conflate his challenge to the
sufficiency of the evidence with a challenge to the weight of the evidence.
Brief for Yong at 22. The sum of Yong’s sufficiency argument is that the
evidence was insufficient because Officer McCook’s investigation report was
inconsistent with his later testimony at trial. This argument challenges the
credibility of the Commonwealth’s witness and, therefore, implicates the
weight of the evidence—a claim that Yong has failed to preserve for our
review. See Statement of Errors Complained of on Appeal, 8/1/2013, at 1
(“[The trial c]ourt erred by denying [Yong’s] post-verdict motion for a
judgment of acquittal where [Yong] argued that there was insufficient
evidence.” (emphasis added)). Accordingly, Yong has waived his challenge
to the weight of the evidence. Pa.R.A.P. 1925(b)(4)(vi) (“Issues not
included in the [1925(b) statement] . . . are waived.”); see generally
Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998).
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For the foregoing reasons, we vacate Yong’s judgment of sentence,
reverse the trial court’s order denying Yong’s motion to suppress, and
remand for retrial.
Judgment of sentence vacated. Case remanded for further
proceedings consistent with this opinion. Jurisdiction relinquished.
Judge Panella joins the opinion.
Judge Lazarus files a concurring statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/2015
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