J-A16014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

FRANK SANTOS,

                            Appellee                   No. 2249 EDA 2014


                       Appeal from the Order July 9, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0001509-2013


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 25, 2015

        The Commonwealth appeals from the trial court’s order granting the

motion to suppress evidence filed by Appellee, Frank Santos.1 After review,

we are constrained to vacate the order of suppression and remand for

proceedings consistent with this memorandum.

        The relevant factual and procedural history of this case is as follows.

On June 1, 2012, at approximately 7:45 p.m., Police Officer Jason Branyan

was on duty working with a narcotics enforcement team in the 2800 block of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  “The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.” Commonwealth v.
Lark, 91 A.3d 165, 166 n.1 (Pa. Super. 2014), appeal denied, 105 A.3d 735
(Pa. 2014) (citations omitted). The Commonwealth has included such a
certification in this case. (See Notice of Appeal, 8/08/14, at 1).
J-A16014-15



Cottman Avenue in Philadelphia. They set up undercover surveillance in a

parking lot known to police as a location where narcotics transactions,

thefts, and robberies regularly take place. At that time, Officer Branyan was

a nine-year veteran of the police force, and he had made approximately one

thousand narcotics arrests, with twenty arrests in this specific parking lot.

His narcotics enforcement colleagues had made approximately forty to sixty

arrests in this parking lot.

        At approximately 8:20 p.m., Officer Branyan observed a dark-colored

Acura with New Jersey tags pull into the parking lot. It parked two rows in

front of him, directly facing him, at a distance of approximately fifty feet. A

few minutes later, a Toyota Rav4, driven by Appellee, pulled into the parking

lot next to the Acura. The vehicles were in a well-lit area of the parking lot,

and the driver’s side of Appellee’s vehicle faced the driver’s side of the

Acura. Appellee got out of his vehicle with a clear plastic bag in his hand,

and he entered the rear driver’s side of the Acura. Moments later, he exited

the Acura and quickly went back into his own vehicle.

        The Acura began to leave the parking lot at a normal rate of speed,

and Officer Branyan gave out a flash to stop it. Sergeant Cerruti2 stopped

the Acura towards the front of the parking lot and recovered twenty yellow

oxycodone pills in a clear plastic bag from the cup holder.       The sergeant


____________________________________________


2
    Our review of the record did not reveal Sergeant Cerruti’s first name.



                                           -2-
J-A16014-15



radioed that the stop of the Acura “was a positive.”           (N.T. Suppression

Hearing, 7/09/14, at 11).

        At Officer Branyan’s instruction, Police Officer Michael Schaffer then

stopped Appellee’s vehicle, which was still parked in the parking lot.

Appellee got out of the vehicle and was placed in handcuffs.3 Officer Shaffer

recovered $160.00 from the driver’s seat of Appellee’s vehicle and

$2,241.00 from his person.            The officer also recovered four amber pill

bottles from the center console of Appellee’s vehicle.           The first bottle

contained 281 oxycodone pills; the second bottle contained fourteen

diazepam pills; the third bottle contained five oxycodone pills; and the fourth

bottle contained only yellow residue. The three bottles containing pills bore

the name of Appellee’s girlfriend, Amanda Fuscia; the empty bottle was not

labeled.

        Appellee was charged with possession with intent to deliver a

controlled substance and possession of a controlled substance.4 On May 21,

2013, he filed a motion to suppress evidence.          On July 9, 2014, the trial

court held a hearing at which Appellee argued that police arrested him
____________________________________________


3
  It is not clear from the record which officer placed Appellee in handcuffs.
(See Trial Court Opinion, 10/24/14, at 3-4). Officer Branyan testified that,
when he reached Appellee’s vehicle, Appellee was already in handcuffs.
(See N.T. Suppression Hearing, 7/09/14, at 28-29). However, Officer
Schaffer testified that he believed Officer Branyan placed Appellee in
handcuffs. (See id. at 39).
4
    35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.



                                           -3-
J-A16014-15



without probable cause. (See id. at 6). On that same date, the trial court

entered its order granting the motion. On July 15, 2014, the court entered

findings of fact and conclusions of law on the record, stating that Appellee’s

warrantless arrest lacked the requisite probable cause. (See N.T. Findings

of Fact and Conclusions of Law, 7/15/14, at 5). This timely appeal followed.5

        The Commonwealth raises the following issue for review:

              Where an experienced police officer, with thousands of
        narcotics arrests, was conducting surveillance of a parking lot
        notorious for narcotics activity—a location where the officer had
        personally made 20 prior arrests—recognized a probable drug
        transaction unfolding in front of him, did the [trial] court, which
        disregarded the officer’s relevant experience and the crime-
        ridden character of the surveillance location, err in concluding
        there was no probable cause to arrest [Appellee]?

(Commonwealth’s Brief, at 3).6

        Our standard of review is as follows:

              When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant’s witnesses
        together with the evidence of the prosecution that, when read in
        the context of the entire record, remains uncontradicted. The
        suppression court’s findings of fact bind an appellate court if the
        record supports those findings.         The suppression court’s
        conclusions of law, however, are not binding on an appellate
        court, whose duty is to determine if the suppression court
        properly applied the law to the facts.

____________________________________________


5
  The Commonwealth filed a statement of errors complained of on appeal
contemporaneously with its notice of appeal on August 8, 2014. See
Pa.R.A.P. 1925(b). The trial court entered its opinion on October 24, 2014.
See Pa.R.A.P. 1925(a).
6
    Appellee did not file a brief.



                                           -4-
J-A16014-15



Commonwealth v. Johnson, 68 A.3d 930, 934 (Pa. Super. 2013) (citation

omitted).

       In its sole issue on appeal, the Commonwealth contends that the trial

court erred in granting Appellee’s motion to suppress where the arrest was

legal and supported by probable cause. (See Commonwealth’s Brief, at 12-

22).    It maintains that the totality of the circumstances of this case,

including the officers’ relevant experience and knowledge of this particular

parking lot as notorious for drug activity, coupled with Appellee’s unusual

conduct, established probable cause. (See id. at 11, 15-16). After review

of the record, we are constrained to agree.

       Our Supreme Court has stated:

                   [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 order to determine whether probable cause exists to
       justify a warrantless arrest, we must consider the totality of the
       circumstances.     Probable cause exists where the facts and
       circumstances within the officer’s knowledge are sufficient to
       warrant a person of reasonable caution in the belief that an
       offense has been or is being committed, and must be viewed
       from the vantage point of a prudent, reasonable, cautious police
       officer on the scene at the time of the arrest guided by his
       experience and training. . . .


                                     -5-
J-A16014-15


                     Probable cause is made out when 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. The question we ask is not whether the
              officer’s belief was correct or more likely true than
              false. Rather, we require only a probability, and
              not a prima facie showing, of criminal activity. In
              determining whether probable cause exists, we apply
              a totality of the circumstances test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (citations and

quotation marks omitted; emphasis in original).

      “In determining whether probable cause exists: The time is important;

the street location is important; the use of a street for commercial

transactions is important; . . . the movements and manners of the parties

are important.”     Commonwealth v. Delvalle, 74 A.3d 1081, 1086 (Pa.

Super. 2013) (citation omitted).     Further, a police officer’s experience is a

relevant factor in determining probable cause, where there is a nexus

between the experience and the observed behavior. See Commonwealth

v. Thompson, 985 A.2d 928, 935-36 (Pa. 2009); see also Delvalle, supra

at 1085-86.

      In the instant case, the relevant facts and circumstances were that

police officers with extensive experience making narcotics arrests observed a

night-time interaction in a parking lot known for narcotics sales. (See N.T.

Suppression Hearing, 7/09/14, at 7-10). Appellee parked with the driver’s

side of his vehicle along the driver’s side of the waiting Acura, and he exited



                                      -6-
J-A16014-15



his vehicle with a clear plastic bag in his hand. (See id. at 11, 15, 17, 23).

He entered the backseat of the Acura and quickly exited a few moments

later, jumping back into his own vehicle.    (See id. at 11-13, 24).    Police

immediately stopped the Acura and recovered twenty oxycodone pills in a

clear plastic bag from the cup holder. (See id. at 11-12, 25). Only after

police stopped the Acura and recovered oxycodone pills from the suspected

buyer did they stop Appellee, who was still parked in the parking lot known

for drug activity. (See id. at 11, 15-16, 25-27).

     Viewing the totality of the circumstances, and mindful of the above

considerations, we conclude that the facts of this case “are sufficient to

warrant a man of reasonable caution in the belief that [Appellee] has

committed . . . a crime[,]” Martin, supra at 721, through his involvement

in the suspected drug sale. Thus, the trial court erred in determining that

police lacked probable cause to arrest Appellee.    See Johnson, supra at

934. Accordingly, we vacate the order of suppression, and remand to the

trial court for further proceedings consistent with this memorandum.

     Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/25/2015


                                    -7-
