J-S01044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellant

                   v.

ANGEL TRENT

                        Appellee                   No. 3129 EDA 2014


                  Appeal from the Order October 2, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008718-2012


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.:                    FILED JANUARY 12, 2016

     Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Philadelphia County Court of Common Pleas, which granted

the motion to suppress filed on behalf of Appellee, Angel Trent. We reverse

and remand for further proceedings.

     The relevant facts and procedural history of this appeal are as follows.

In February 2012, the Philadelphia District Attorney Dangerous Drug

Offenders Unit and the federal Drug Enforcement Administration began a

large-scale narcotics investigation. During that month, officers purchased a

quarter-pound of cocaine from an individual involved in the drug ring.

Subsequently, the investigating officers obtained authorization to intercept

and record telephone conversations between individuals in the ring,

including Miguel Cruz and Jose Soto.      Based on their surveillance, the
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officers learned that Mr. Cruz lived in New York and drove a blue 2002

Chrysler minivan with a Pennsylvania license tag of GVX7950. The vehicle

was registered to a woman who lived on the same block in Philadelphia as

Mr. Soto.   Through the intercepts, the officers also learned that Mr. Cruz

used the van to supply Mr. Soto with drugs. On March 30, 2012, the officers

obtained an order authorizing them to place a tracking device on the van.

Mr. Cruz subsequently drove the vehicle back to New York.       On April 14,

2012, the officers intercepted a phone call between Mr. Soto and Mr. Cruz at

3:58 p.m., in which the following conversation took place:

        Mr. Cruz:      Tell me.

        Mr. Soto:      Ah-ha what’s up?

        Mr. Cruz:      Nothing.  They didn’t even answer their
                       phone and I called them five times.

        Mr. Soto:      Yeah, damn.

        Mr. Cruz:      Ah-ha and the other one I took it out.

        Mr. Soto:      Yeah.

        Mr. Cruz:      I’m going to call my friend now to see if he
                       can bring me a dollar because more or less
                       for tonight.

        Mr. Soto:      That’s cool because I have someone waiting
                       now because I told him there was some.

        Mr. Cruz:      Let me call you in two minutes.

        Mr. Soto:      Okay.




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(N.T. Suppression Hearing, 4/2/14, at 13).1 During the ensuing phone call

at 4:13 p.m. on the same day, the following conversation took place:

          Mr. Cruz:         Ah-ha.

          Mr. Soto:         Tell me.

          Mr. Cruz:         You told me you were going to need at least
                            two.

          Mr. Soto:         I don’t know maybe one or two whatever.
                            Before I leave I have to get rid of it, I don’t
                            know whatever you can do, whatever.

          Mr. Cruz:         All right I will see if—see if come tonight
                            then.

          Mr. Soto:         Whatever, one or two whatever you can, I
                            don’t know. If anything I’ll pay for one in
                            case the other I’ll pay it later.

          Mr. Cruz:         Well at least I’ll bring one or one and a half,
                            maybe you can pay it before you leave.

          Mr. Soto:         Yes, from here to Friday, yes, yes bring like
                            one and a half.

          Mr. Cruz:         All right.

          Mr. Soto:         From here to Wednesday, yes from here to
                            Wednesday I’ll be able to take that out.

          Mr. Cruz:         All right.

          Mr. Soto:         I have people waiting now.

          Mr. Cruz:         All right, bye, see you tonight.
____________________________________________


1
 Although the notes of testimony indicate the first hearing was held on April
22, 2014, the docket and the Commonwealth’s brief both indicate the
hearing occurred on April 2, 2014.



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(Id. at 15-16).        Based on that conversation and previous information

gathered during the investigation, narcotics officer Frank Bonnet testified at

the suppression hearing that Mr. Soto and Mr. Cruz were speaking in coded

language to arrange a delivery of cocaine on the evening of April 14, 2012.

At the time of the phone calls, the tracking device indicated the Chrysler

minivan was in New York.           At around 8:30 p.m., the van began heading

southbound on the New Jersey Turnpike toward Philadelphia.                        The

investigating officers briefed the Philadelphia Police Department highway

patrol on the narcotics investigation and arranged for patrol officers to

monitor the van to avoid compromising the secrecy of the investigation.

Patrol officers Andy Chan and Mike Kelly stopped the van off I-95 in

Philadelphia after observing it change lanes without signaling. Appellee was

the driver. When the officers approached the van and asked Appellee for the

vehicle’s registration and proof of insurance, Officer Chan observed that

Appellee’s hands were shaking and he appeared very nervous. The officers

directed Appellee to exit the van.             Officer Kelly then searched the vehicle

and recovered approximately 163 grams of cocaine.

        The Commonwealth charged Appellee with simple possession and

possession with intent to deliver (“PWID”).2 On January 3, 2013, Appellee

filed an omnibus pre-trial motion, which included a motion to suppress the
____________________________________________


2
    35 P.S. §§ 780-113(a)(16), (a)(30), respectively.



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drugs recovered from the van. The court held suppression hearings on April

2, 2014 and July 16, 2014.              On August 26, 2014, the court granted

Appellee’s motion to suppress.            The Commonwealth filed a motion for

reconsideration on September 8, 2014. On September 23, 2014, the court

granted reconsideration of its suppression ruling. Following argument, the

court reaffirmed its ruling granting Appellee’s motion to suppress on October

2, 2014. On Monday, November 3, 2015, the Commonwealth filed a timely

notice of appeal and a voluntary concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b).3

       The Commonwealth raises the following issue for our review:

          DID THE [TRIAL] COURT ERR IN SUPPRESSING 163
          GRAMS OF COCAINE AND OTHER EVIDENCE FOUND IN
          THE VAN [APPELLEE] WAS DRIVING WHERE THERE WAS
          PROBABLE CAUSE TO BELIEVE THAT CONTRABAND
          WOULD BE FOUND IN THE VEHICLE, AND UNDER THE
          PENNSYLVANIA   SUPREME   COURT’S    DECISION IN
          COMMONWEALTH V. GARY[4], THAT WAS ALL THAT
          WAS REQUIRED TO SEARCH THE VEHICLE?

(Commonwealth’s Brief at 4).

____________________________________________


3
   The Commonwealth’s notice of appeal certifies that the court’s order
granting Appellee’s motion to suppress terminates or substantially handicaps
the prosecution. See Pa.R.A.P. 311(d); Commonwealth v. Huntington,
924 A.2d 1252, 1254 n.1 (Pa.Super. 2007), appeal denied, 593 Pa. 746, 931
A.2d 656 (2007) (stating: “The Commonwealth may take an appeal as of
right from an order that does not end the entire case if the Commonwealth
certifies in the notice of appeal that the order will terminate or substantially
handicap the prosecution”).
4
    Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014).



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      In its sole issue, the Commonwealth argues the police had probable

cause to believe the van contained cocaine, and Appellee conceded that

probable cause existed.       The Commonwealth contends that under the

automobile exception to the warrant requirement announced in Gary,

supra, probable cause was all the officers needed to conduct a lawful

warrantless search of the vehicle. The Commonwealth claims Gary applies

here because it was decided while Appellee’s suppression motion was

pending.     The Commonwealth asserts the trial court wrongly determined

Gary is inapplicable because it was decided after the vehicle search had

occurred, and the Supreme Court did not specifically state that the decision

applied retroactively.    The Commonwealth concludes the trial court erred

when it granted Appellee’s motion to suppress. We agree.

      We review an order granting a motion to suppress according to the

following principles:

           [We] 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.       As long as there is some
           evidence to support them, we are bound by the
           suppression court’s findings of fact. Most importantly, we
           are not at liberty to reject a finding of fact which is based
           on credibility.

           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.

Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),


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appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citations and

quotation marks omitted).

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

I, § 8 of the Pennsylvania Constitution protect citizens from unreasonable

searches and seizures and, to that end, a search conducted without a

warrant is generally presumed unreasonable unless it is undertaken

pursuant     to   a   recognized    exception   to   the   warrant    requirement.”

Commonwealth v. Lechner, 685 A.2d 1014, 1016 (Pa.Super. 1996).

           The level of probable cause necessary for warrantless
           searches of automobiles is the same as that required to
           obtain a search warrant. The well-established standard for
           evaluating whether probable cause exists is the “totality of
           the circumstances” test. This test allows for a flexible,
           common-sense approach to all circumstances presented.
           Probable cause typically 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. The evidence
           required to establish probable cause for a warrantless
           search must be more than a mere suspicion or a good faith
           belief on the part of the police officer.

Id. (internal citations omitted).

      The Pennsylvania Supreme Court recently held in Gary, supra, that

Article I, Section 8 of the Pennsylvania Constitution affords no greater

protection with respect to warrantless searches of motor vehicles than does

the Fourth Amendment to the United States Constitution.              Id. at 242, 91

A.3d at 138. Under either constitutional provision, “The prerequisite for a

warrantless search of a motor vehicle is probable cause to search; no


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exigency beyond the inherent mobility of a motor vehicle is required.” Id.

      “[W]here an appellate decision overrules prior law and announces a

new principle, unless the decision specifically declares the ruling to be

prospective only, the new rule is to be applied retroactively to cases where

the issue in question is properly preserved at all stages of adjudication up to

and including any direct appeal.” Commonwealth v. Cabeza, 503 Pa. 228,

233, 469 A.2d 146, 148 (1983). See also Commonwealth v. Hudson, 92

A.3d 1235 (Pa.Super. 2014) (reviewing order granting defendant’s motion to

suppress; applying standard enunciated in Gary, which was decided after

search of defendant’s car and after trial court’s ruling on suppression

motion).

      Instantly, Appellee’s motion to suppress was still pending when Gary

was decided.   The Supreme Court did not specifically declare its ruling in

Gary to be prospective only. Therefore, it applies to Appellee’s case. See

Cabeza,    supra.      To   defeat   Appellee’s   suppression    motion,   the

Commonwealth needed only to prove the police had probable cause to

believe the van driven by Appellee contained drugs. No exigency beyond the

inherent mobility of the vehicle was required. See Gary, supra. The trial

court based its ruling on the failure of the Commonwealth to prove that

exigent circumstances existed or, alternatively, that Appellee consented to

the search. The court did not find an absence of probable cause to search

the van. To the contrary, the court implicitly found the existence of probable


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cause     when    it    reconsidered    its    ruling   to   determine   whether   the

Commonwealth also needed to prove exigent circumstances in light of Gary.

The court’s reconsideration of its ruling would have been superfluous unless

it had already determined probable cause existed.                 Moreover, Appellee

initially raised the issue of probable cause to search the van in his motion to

suppress, but at the suppression hearing, Appellee argued only that

Appellee’s consent was invalid and the police should have obtained a

warrant.5      Appellee also failed to argue lack of probable cause at the

reconsideration hearing.         Thus, Appellee arguably abandoned his claim

regarding probable cause to search the van.

        Additionally,     the   uncontradicted      evidence     presented   by    the

Commonwealth established the following.                 The investigating officers had

obtained an order to place a tracking device on the 2002 Chrysler minivan

based on information they had gathered that the vehicle was being used for

drug deliveries.        On April 14, 2012, the officers intercepted phone calls

between two suspects in the drug ring, Mr. Cruz and Mr. Soto, in which they

used coded language to schedule a drug delivery that night from New York

____________________________________________


5
  Appellee’s counsel stated: “Even if you assume that there was probable
cause to stop this vehicle—and I think arguably between the phone calls and
what was discussed on the phone that day, even though there’s never been
a single observation of drugs coming out of that vehicle or in that vehicle, I
certainly think it’s enough for a reasonable officer to believe that this vehicle
was being used by Mr. Cruz to transport narcotics….” (N.T. Suppression
Hearing, 7/16/14, at 121).



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to Philadelphia. At around 8:30 p.m. that night, the tracking device showed

the van leaving New York in the direction of Philadelphia.   Highway patrol

officers, who were informed of the nature of the investigation, eventually

stopped the van when it reached Philadelphia and changed lanes without

signaling. One of the patrol officers observed during the stop that Appellee

was visibly nervous and his hands were shaking. Appellee likewise conceded

he was nervous during the stop. Based on the totality of the circumstances,

the police had probable cause to believe the van contained cocaine, which

was all that was necessary to justify the search of the vehicle.   See id.;

Lechner, supra. Therefore, the court should have denied Appellee’s motion

to suppress. Accordingly, we reverse the suppression order and remand for

further proceedings.

      Order reversed; case remanded for further proceedings. Jurisdiction is

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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