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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                    v.                 :
                                       :
VALERIE ROSE TALLENT,                  :         No. 1395 MDA 2018
                                       :
                         Appellant     :


        Appeal from the Judgment of Sentence Entered August 3, 2018,
              in the Court of Common Pleas of Lycoming County
               Criminal Division at No. CP-41-CR-0001753-2016


BEFORE: LAZARUS, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:          FILED SEPTEMBER 06, 2019

        Valerie Rose Tallent appeals from the August 3, 2018 judgment of

sentence entered in the Court of Common Pleas of Lycoming County following

her conviction in a waiver trial of one count of possession of drug

paraphernalia, an ungraded misdemeanor.1        The trial court imposed a

$750 fine, plus all prosecution costs and payment of a $100 Act 1982 fee. We

affirm.




1   35 P.S. § 780-113(a)(32).

2Codified at 18 Pa.C.S.A. § 7508.1, Act 198 established The Substance Abuse
Education and Demand Reduction Fund. Id. at § 7508.1(a). In the absence
of undue hardship, Act 198 requires trial courts to impose a mandatory cost
of $100 on any individual who, among other things, is convicted of violating
The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-1,
et seq. See 18 Pa.C.S.A. § 7508.1(b).
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     The trial court set forth the following:

           [Officer Andrew] Stevens has been employed with the
           Williamsport City police for two years. Prior to joining
           the Williamsport City Police, he was an officer in
           Athens and Sayre for three and ½ years. At the time
           of the incident he had been policing for less than four
           years.

           On July 2, 2016, Stevens and his partner
           Officer Tyson Minier were in a marked patrol car east
           of Kramer Court when they observed a parked maroon
           Kia Sportage on Elmira Street. The lights were not on
           in the Kia and the officers were not aware whether the
           vehicle was running.

           The officers observed two occupants, [David Rute3
           and appellant]. Rute was the driver and [appellant]
           was the passenger, Stevens testified.

           Stevens proceeded to run the registration and found
           that the vehicle was registered to an address in
           Sunbury, PA. He also observed the vehicle drive
           around the block, which he believed was done in an
           effort to “elude police[.”]

           Stevens observed the individuals approach 715 Elmira
           Street, and that Rute was covering his face. Stevens
           is aware from his patrol of the area that the
           700-800 block of Elmira Street in Williamsport,
           Pennsylvania is an active area in the sale of heroin.
           He has made numerous arrests in this area. He is also
           aware from his personal experience that people from
           out of the area come to Williamsport generally to
           purchase heroin. Stevens suspected drug activity.
           Stevens saw the individuals approach a home that he
           knew to be vacant as his partner had recently been
           called to 715 Elmira Street regarding a burglary and
           the house was found to be vacant.




3 The record reflects that Rute was also charged with possession of drug
paraphernalia.


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            Stevens observed [appellant] knock on the door of the
            unoccupied home.       Stevens and his partner
            approached [appellant and Rute] and asked them why
            they were in town. They responded that they were
            here to see fireworks. No follow up questions were
            asked and the encounter concluded.

            Stevens and his partner looked into the Kia window
            and observed rubber bands, two small black and blue
            rubber bands that they know are used to package
            heroin. They proceeded to open the vehicle and
            search. Pursuant to the search, the officers opened a
            purse in the vehicle and found a syringe and a spoon,
            items typically used by [a] heroin user for the
            ingestion of heroin.

Trial court opinion, 5/16/17 at 1-3.

      The record reflects that appellant filed an omnibus pretrial motion to

suppress the evidence obtained as a result of the search. Following a hearing,

the trial court denied the motion. After her conviction, appellant did not file

post-trial motions. Appellant did, however, file a timely notice of appeal. The

trial court then ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).        Appellant timely

complied.   The trial court then filed a statement in lieu of a Rule 1925(a)

opinion wherein it relied on its May 16, 2017 opinion that set forth its reasons

for its denial of appellant’s motion to suppress.

      Appellant raises the following issue for our review:

            Did the trial court err in denying [a]ppellant’s motion
            to suppress the evidence arising out of an encounter
            with Williamsport police on July 2, 2016?

Appellant’s brief at 7.



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      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            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 specifically complains that “all of the facts taken together do

not rise to the probable cause required to effect the search.” (Appellant’s brief

at 13.)

            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


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            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.

Commonwealth v. Runyan, 160 A.3d 831, 837 (Pa.Super. 2017) (citation

omitted). “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.”        Id. (citation omitted;

emphasis in original).

      At the suppression hearing, Officer Stevens testified that he and his

partner were patrolling an area that is “very active for the sale of heroin” in a

marked vehicle at night. (Notes of testimony, 3/30/17 at 8-10.) When they

came across the Kia Sportage in which appellant and Rute were sitting,

Officer Stevens testified that it appeared to him that Rute was attempting to

obscure his face. (Id. at 8-9.) The officer believed that Rute’s conduct was

an attempt to “hide [his] face or [his] identity because [he is] in that area for

no good reason.” (Id. at 11.) After running the Kia’s license plate number,

the officers discovered that the vehicle was registered to an address in

Sunbury, Pennsylvania. (Id. at 10.) Officer Stevens explained that in his

            experience people from out of the area, Sunbury,
            Lewisburg, Canton, I mean, anywhere from out of the
            area it’s common for people to come into Williamsport
            to purchase heroin from out of the area because it’s
            cheaper. . . . So seeing a car from Sunbury, two
            people occupied in that vehicle in that area is
            suspicious to me for drug activity.


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Id. at 11.

       Officer Stevens then observed appellant and Rute walk up the steps to

a home that Officer Stevens knew was vacant and knock on the door. (Id. at

12.) Officer Stevens explained that he has “seen numerous times where the

similar scenario had happened where people kind of get nervous when they’re

in the area, do something wrong, so they make it look like they’re there to

visit somebody and they knock on the door.” (Id.) The officers then drove

down the street, came back around, and encountered appellant and Rute on

a corner one block north of where the Kia was parked.        (Id. at 13.)   The

officers asked appellant and Rute what they were doing in the area. (Id. at

14.)   Appellant responded that she was in the area to see “fireworks or

something.” Rute responded that he was in the area to visit a friend. At that

point, Officer Minier walked to the Kia, Officer Stevens drove around the block,

and appellant and Rute continued to walk away from the Kia. (Id. at 15-16.)

       Officer Stevens then made his way back to the Kia where Officer Minier

was standing. (Id. at 16.) Officer Minier told Officer Stevens that there was

heroin packaging in plain view in the vehicle. Officer Stevens looked into the

driver’s side window and observed

             at least two, they’re small black and blue different
             colored rubber bands, they’re very small, they
             package a bundle of heroin together, 10 bags of
             heroin, and that’s what they’re used for in my
             experience. I’ve never seen them for any other
             reason but to store heroin.



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Id. at 17.

        After the officers observed the rubber bands, which Officer Stevens

described as “the size of your pinky,” they opened the driver’s door and

searched the vehicle. (Id. at 17-18.)

        In her brief to this court, appellant maintains that the officers did not

have probable cause to search the Kia because “[t]here are innocent

explanations for each and every fact that the Commonwealth alleges establish

probable cause.” (Appellant’s brief at 13.) For example, appellant explains

that she and Rute did not provide conflicting answers as to why they were in

the area that night; rather, “[t]heir answers are supplementary to each other.”

(Id. at 12.) Appellant also contends that even though Officer Stevens believed

the house that appellant and Rute approached was vacant, it was “equally

reasonable to believe the house is no longer vacant if two civilians approach

and knock on the door.” (Id.) Appellant suggests that, at the very least, the

officers should have “reassess[ed] whether the house was really vacant.”

(Id.)    Appellant clearly misapprehends the probable cause determination,

which requires that the facts and circumstances within the police officer’s

knowledge would warrant a reasonably cautious person to believe a crime

has been or is being committed. Runyan, 160 A.3d at 837.

        Here, in considering the totality of the circumstances, the trial court

determined that the facts and circumstances within Officer Stevens’

knowledge were sufficient to warrant a person of reasonable caution to believe



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a crime had been or was being committed.           Our review of the record

demonstrates that the record supports the trial court’s factual findings and its

legal conclusions are correct.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 9/6/2019




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