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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S04037/18


          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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