J-S11035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE
                                                      FILED
                                                        SUPERIOR
                                                            MAY 04,
                                                                 COURT
                                                                    2016
                                                                       OF
                                          :            PENNSYLVANIA
           v.                             :
                                          :
EDWARD RIVERA,                            :
                                          :
                 Appellant                :           No. 2920 EDA 2014

           Appeal from the Judgment of Sentence July 14, 2014,
           in the Court of Common Pleas of Philadelphia County,
            Criminal Division, No(s): MC-51-CR-0012203-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED MAY 04, 2016

     Edward Rivera (“Rivera”) appeals from the Order of the common pleas

court, which denied his Petition for Writ of Certiorari of the judgment of

sentence entered by the Municipal Court of Philadelphia 1 following his

conviction of possession of a controlled substance and purchase of a




1
 An appellant convicted in Philadelphia’s Municipal Court has two appellate
options:

     Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides
     that a defendant convicted in Philadelphia Municipal Court has
     the right to request either a trial de novo or file a petition for a
     writ of certiorari with the Philadelphia Court of Common Pleas.
     This Court has held that when a defendant files a petition for a
     writ of certiorari, the Philadelphia Court of Common Pleas sits as
     an appellate court.

Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa. Super. 2011)
(citations omitted). A petition for writ of certiorari asks the common pleas
court to review the record made in the Municipal Court. Commonwealth v.
Williams, 125 A.3d 426, 431 (Pa. Super. 2015).
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controlled substance from an unlicensed seller.2 We vacate the Order of the

common pleas court, vacate Rivera’s judgment of sentence, and discharge

Rivera.

        In its Opinion, the common pleas court set forth its factual findings

relevant to the instant appeal as follows:

              On April 16, 2014, Officer [Bryan] Outterbridge [“Officer
        Outterbridge”] and [another police officer] went to 3116 North
        15th Street [in Philadelphia] to observe the sale of illegal
        narcotics[,] after receiving a complaint that drugs were being
        sold out of the residence. The residence is a rooming house,
        located in a high drug area, known for the sale of marijuana,
        crack, and heroin[,] where Officer Outterbridge had made more
        than a hundred arrests.

               At approximately 11:45 a.m., an unknown male wearing a
        tan jacket approached and knocked on the door. A second
        unknown male wearing a red sweatshirt answered, letting the
        first man inside. After approximately forty-five seconds, the
        man in the tan jacket emerged and walked northbound on 15 th
        [S]treet. Though Officer Outterbridge relayed flash information
        to have the man stopped, he was never found. At approximately
        12:10 p.m., a second unknown male in a tan jacket and black
        pants knocked on the door. The same male in the red sweatshirt
        let him inside[,] where both remained for approximately forty-
        five seconds. Upon leaving, the man in the tan jacket and black
        pants headed northbound on 15th Street, but then turned west
        onto Allegheny [Avenue] and entered an apartment building
        before he could be stopped by police. Finally, at approximately
        12:30 p.m., a man wearing a red, white, and blue shirt, later
        identified as [Rivera], approached 3116 North 15th Street.
        [Rivera] knocked on the door in the same manner as the two
        men before him. He[,] too[,] was greeted by the man wearing
        the red sweatshirt and, like the two men who preceded him[,]
        entered the residence. After being out of view for approximately
        forty-five seconds, [Rivera] returned to the street and walked
        southbound on 15th Street, then east on Clearfield [Street].


2
    35 P.S. § 780-113(a)(16), (19).


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               Officer Outterbridge has been a Philadelphia police officer
        for twenty-one years[,] with five years of experience working
        narcotics.    Throughout his career, Officer Outterbridge has
        received specialized training in narcotics. He is certified to test
        various narcotics, including marijuana, crack, cocaine, and
        heroin. He is also trained in the packaging of narcotics and how
        they are distributed. Because he had made numerous arrests in
        the area, and based on his years of experience as a member of
        the narcotics team, Officer Outterbridge believed that what he
        saw on April 16, 2014 was a narcotics transaction. Officer
        Outterbridge had observed similar situations in the past; he had
        seen other narcotics sales from residences[,] and this “fit the
        description.” Based on this belief, Officer Outterbridge relayed
        flash information to back-up officers. Officer Bradley responded
        and stopped [Rivera], recovering one heat-sealed packet
        containing an off-white chunky substance: crack cocaine. A
        field drug test was conducted on this packet and it came back
        positive for the presence of cocaine base.

Trial Court Opinion, 7/15/15, at 1 (citations omitted). The Commonwealth

subsequently charged Rivera with the above-described offenses.

        The trial court concisely summarized the procedural history following

Rivera’s arrest as follows:

              [Rivera] appeared before the Municipal Court on July 14,
        2014[,] with a Motion to Suppress, which was denied. [Rivera]
        was subsequently found guilty of knowing and intentional
        possession of a controlled substance [and purchase of a
        controlled substance from an unlicensed seller,] and was
        sentenced to eighteen months [of] reporting probation. On
        October 7, 2014, [Rivera] appeared before the Court of Common
        Pleas with a [Petition for] Writ of Certiorari from the denial of the
        Motion to Suppress.[3] The [trial c]ourt denied the [Petition for]
        Writ of Certiorari on that same day. This appeal followed.

Id. at 1 (footnote added).

        On appeal, Rivera presents the following claim for our review:


3
    Rivera had filed his Petition for Writ of Certiorari on August 12, 2014.


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      Did not the courts below err in denying [Rivera’s M]otion to
      [S]uppress physical evidence[,] where police saw two unknown
      individuals briefly enter and leave a house police believed was a
      drug house, and later saw [Rivera] briefly enter and leave the
      same house, but police observed no transactions, exchanges, or
      contraband?

Brief for Appellant at 3.

      In reviewing an order denying a suppression motion,

      [a]n appellate court may consider only the Commonwealth’s
      evidence 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, the appellate court is bound by those facts and
      may reverse only if the legal conclusions drawn therefrom are in
      error. However, it is also well settled that an appellate court is
      not bound by the suppression court’s conclusions of law.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015)

(citations omitted).

      With respect to factual findings, we are mindful that it is the sole
      province of the suppression court to weigh the credibility of the
      witnesses. Further, the suppression court judge is entitled to
      believe all, part or none of the evidence presented. However,
      where the factual determinations made by the suppression court
      are not supported by the evidence, we may reject those findings.
      Only factual findings which are supported by the record are
      binding upon this Court.

Id. (citation omitted).

      Rivera claims that the police officers lacked probable cause to arrest

him, and accordingly, the suppression court erred in not suppressing all

evidence seized from him as a result of the illegal arrest. Brief for Appellant

at 8. Rivera acknowledges the Commonwealth’s evidence that the officers

had received complaints about drugs being sold from the residence at issue,


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and that Officer Outterbridge and his partner set up surveillance of that

property. Id. Rivera further acknowledges the Commonwealth’s evidence

that the area was a high-drug crime area, and that Officer Outterbridge was

a 21-year veteran of the police force, with five years of narcotics experience.

Id. Notwithstanding, Rivera claims that the Commonwealth

      failed to establish a nexus between [Officer Outterbridge’s]
      experience and his observations sufficient to create probable
      cause where the officer observed nothing that was immediately
      identifiable as unlawful. He saw three people enter and leave a
      rooming house that police received anonymous complaints about
      regarding drug sales. [Officer Outterbridge] saw no exchanges,
      or contraband, or money, or any evidence of drug sales.

Id. at 11.   In support, Rivera compares the circumstances in this case to

those presented in Commonwealth v. Myers, 728 A.2d 960 (Pa. Super.

1999). Brief for Appellant at 9-10.

      In its Opinion, the trial court acknowledged Rivera’s reliance on

Myers, but reasoned that Rivera had “neglect[ed] to consider the impact of

[Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009),] and its

progeny.”    Trial Court Opinion, 7/15/15, at 5.   The trial court considered

Officer Outterbridge’s training and experience, and deemed it significant that

Officer Outterbridge had witnessed several identical instances of persons

entering and leaving the residence. Id. at 6-7 (citing Commonwealth v.

Delvalle, 74 A.3d 1081 (Pa. Super. 2013)). Based upon this evidence, the

trial court concluded that the Commonwealth had established probable cause

to arrest Rivera. Trial Court Opinion, 7/15/15, at 8.



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     “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.”       Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012).         Generally, the police must obtain a

warrant to arrest a suspect in a public place. In the Interest of R.P., 918

A.2d 115, 120 (Pa. Super. 2007).         “However, the police may arrest a

suspect without a warrant if the officer has probable cause to believe a

misdemeanor was committed in the presence of the police officer.” Id. at

120-21.

     “To be constitutionally valid, a warrantless arrest must be supported

by probable cause.” Commonwealth v. Agnew, 600 A.2d 1265, 1271 (Pa.

Super. 1991) (citation omitted).

     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) (emphasis

omitted) (quoting Thompson, 985 A.2d at 931 (Pa. 2009) (citations and

quotation marks omitted)). “When an officer makes an unlawful arrest, any

evidence seized during a search incident to the arrest must be suppressed.”

Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999).


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      Rivera relies upon the Pennsylvania Supreme Court’s decision in

Myers, as supporting his claim that his arrest was not supported by

probable cause. In Myers,

      [f]ollowing surveillance of [a] residence at 2507 S. 62nd Street
      in Philadelphia[,] which anonymous complaints had identified as
      the site of a drug trafficking operation, police arrested two
      persons for narcotics violations on March 25 and 26, 1997. On
      April 1, 1997, at approximately 5:00 p.m., police observed a
      man entering the premises and leaving approximately two
      minutes later. About one hour later, a woman entered the house
      and quickly left. At approximately 6:30 p.m., [the a]ppellant
      was observed by a surveillance officer[,] who described his
      actions as follows:

          [The appellant] walked up, knocked on the door, [and]
          entered. Approximately two minutes later, he exited. I
          believe I saw something in his hand but, again, it was
          closed. He then placed it in his pocket.

      (N.T. Suppression, 7/14/97, at 17-18).    [The a]ppellant then
      entered his vehicle and drove away.

Myers, 728 A.2d 961.       Based upon the foregoing, our Supreme Court

concluded that the police lacked probable cause to place the appellant under

arrest:   “[The a]ppellant entered a house that was under surveillance and

was seen leaving approximately two minutes later. The surveillance officer

thought he saw something in [the a]ppellant’s hand but could not be certain.

These facts do not constitute probable cause.” Id. at 962 (emphasis

added).

      In concluding that the facts in the instant case established probable

cause, the trial court relied upon our Supreme Court’s decision in

Thompson.      In Thompson, while on patrol, Philadelphia Police Officer


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Orlando Ortiz (“Officer Ortiz”) observed a car parked on a sidewalk and

observed the appellant standing in the street by the driver’s side door.

Thompson, 985 A.2d at 930.          “Officer Ortiz watched Percy Thompson

(“Thompson”) hand the male driver some money and saw the driver give

[Thompson] a small object in return.” Id. To establish probable cause, the

Commonwealth presented evidence that Officer Ortiz was a nine-year

member of the police force, who had made several hundred narcotics arrests

of this type. Id. Further, the Commonwealth presented evidence of Officer

Ortiz’s knowledge that the neighborhood was a “high crime area in which

narcotics, and specifically heroin, regularly were sold[,]” and “[t]he area was

designated by the Philadelphia Police Department as an ‘Operation Safe

Streets’ neighborhood.”   Id.   Under these circumstances, the Thompson

Court concluded that “a police officer’s experience is a relevant factor in the

probable cause inquiry[,] as long as it has specific application to the

circumstances at hand.” Id. (emphasis added).

      [A] court 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. Indeed, a factor becomes relevant only
      because it has some connection to the issue at hand….

Id. at 935 (citations and quotation marks omitted, emphasis added).

      Subsequently, in Delvalle, the appellant challenged whether the

Commonwealth had presented a sufficient nexus between Police Officer Eric

Crawford’s (“Officer Crawford”) training and experience, and the observed


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transactions involving Robert Delvalle (“Delvalle”) and Maria Melendez

(“Melendez”).   The trial court, however, concluded that probable cause

existed, without considering Officer Crawford’s experience:

            Officer Crawford observed Melendez approach and hand
     [Delvalle] small objects. [Delvalle] placed those objects in the
     front of his pants, which certainly is a dubious place to store
     non-contraband items. [Delvalle] then worked in tandem with
     Melendez to facilitate suspicious transactions.   An individual
     would approach [Delvalle]. [Delvalle] would then direct that
     individual to Melendez. That person would then hand Melendez
     money. Melendez would then give that person an unknown
     object, which she retrieved from the pocket of her hooded
     sweatshirt. Unlike the circumstances in Thompson …, this
     sequence of events did not happen once, but instead happened
     four times in fewer than twenty minutes, each transaction
     occurring in the same exact manner. Considering the fact
     that the neighborhood was considered to be a high drug-
     transaction area, the suspicious secretion of the objects,
     the nature and location of the transactions, and the
     frequency and repetitiveness of the transactions, probable
     cause existed to warrant a reasonable police officer’s
     belief that [Delvalle] and Melendez were committing a
     crime, even without considering Officer Crawford’s
     experience.

           Officer Crawford testified that he had conducted
     surveillance in that same location thirty to forty times, which
     produced seventy-five to one hundred drug arrests based upon
     very similar transactions.    As a member of the narcotics
     enforcement team, Officer Crawford received training in how
     drugs are packaged, sold generally, and sold through the use of
     a partner. More importantly, in his experience, Officer Crawford
     had observed over one hundred people store drugs in the front
     of their pants, as [Delvalle] did in the instant case.      This
     particular experience informed his view that [Delvalle] and
     Melendez were working together and selling drugs, even though
     Officer Crawford was unable to identify the objects being sold.
     Through this testimony, Officer Crawford established the
     requisite nexus between his experience and his observations to
     support the existence of probable cause.



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Delvalle, 74 A.3d at 1088.

     Keeping in mind our scope and standard of review, the evidence in this

case falls short of that which was presented in Thompson and Delvalle.

Rather, the circumstances underlying Rivera’s arrest more closely resemble

those presented in Myers. Here, the alleged transactions took place outside

of the presence of Officer Outterbridge. Officer Outterbridge did not witness

any activity resembling a transaction, such as the exchange of money for

objects or the secreting of those objects in a suspicious location.    Under

these circumstances, we conclude that the Commonwealth failed to establish

the required nexus between Officer Outterbridge’s experience and training,

and Rivera’s arrest.   See Thompson, 985 A.2d at 935. Even considering

Officer Outterbridge’s training and experience, we conclude that the

Commonwealth failed to establish probable cause that Rivera had engaged in

criminal activity.4 Accordingly, we reverse the Order of the common pleas

court denying Rivera’s Petition for Writ of Certiorari, reverse Rivera’s

judgment of sentence, and discharge Rivera.

     Order vacated; judgment of sentence vacated and appellant is

discharged.




4
  We note, however, that such evidence may establish reasonable suspicion
to effectuate an investigative stop of Rivera, pursuant to Terry v. Ohio, 392
U.S. 1 (1968).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2016




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