J-S70010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JASON PETERSON,

                            Appellant                No. 1719 EDA 2015


             Appeal from the Judgment of Sentence May 20, 2015
                in the Court of Common Pleas of Bucks County
              Criminal Division at No.: CP-09-CR-0000677-2015


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

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 11, 2015

        Appellant, Jason Peterson, appeals from the judgment of sentence

entered on May 20, 2015, following his conviction of possession with intent

to deliver a controlled substance (PWID), possession of drug paraphernalia,

and criminal use of a communication facility.1             On appeal, Appellant

challenges the denial of his motion to suppress. For the reasons discussed

below, we affirm.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   35 P.S. §§ 780-113(a)(30) and (32), and 18 Pa.C.S.A. § 7512,
respectively.
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      We take the underlying facts and procedural history in this matter

from the trial court’s opinion of August 4, 2015, and our independent review

of the certified record.

             On November 11, 2014, Bensalem Township Police Officer
      Gregory Smith was advised by a confidential informant (“C.I.”)
      that the C.I. could purchase heroin and cocaine from an
      individual named Jay. The C.I., described Jay as a large black
      male with a “Muslim style” beard. The C.I. then placed two
      phone calls to Jay in Officer Smith’s presence. Officer Smith
      could only hear the C.I.’s end of the conversation, and he could
      not hear anything said by the individual to whom the C.I. was
      speaking. During the phone call, the C.I. requested to purchase
      a quantity of heroin, and the parties agreed to meet at a Wawa
      convenience store located on Lincoln Highway in Bensalem
      Township, Bucks County, Pennsylvania to carry out the drug
      sale. The C.I. additionally gave Officer Smith Jay’s telephone
      number and advised Officer Smith that Jay would be driving a
      blue Honda minivan.

             Approximately forty-five minutes to one hour after the C.I.
      made the first phone call to Jay, Officer Smith observed a blue
      Honda minivan pull into the parking lot of the Wawa. At that
      time, the C.I. advised Officer Smith that the passenger of the
      minivan was the individual from whom the C.I. had purchased
      heroin and crack cocaine in the past. Officer Smith then pulled
      into the Wawa parking lot so that the C.I. could get a closer look
      at the passenger of the minivan. Once again, the C.I. confirmed
      that the passenger of the minivan was Jay.

             At this time, Officer Smith notified other members of the
      surveillance team that the passenger of the minivan was the
      target of their investigation. In response, law enforcement
      officials approached the passenger of the minivan inside of the
      Wawa, detained him, and led him out of the store.            The
      passenger of the minivan was then determined to be Appellant,
      Jason Peterson. Officers conducted a search of Appellant and
      found two cell phones, $282 in cash, a bag of what appeared to
      be crack cocaine, and two bundles of what appeared to be heroin




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        in his possession.[2] Appellant was then taken into custody and
        brought back to police headquarters.

              While at police headquarters, police read Appellant
        Miranda[3] warnings and interviewed him using a narcotics
        questionnaire commonly used by the Bristol Township Police
        Department in drug related arrests.     During that interview,
        Appellant provided police with his cell phone number, which
        matched the number that was called by the C.I. in arranging the
____________________________________________


2
   The record is inconsistent as to whether Appellant was stopped and
searched as part of an investigatory detention and then arrested based both
upon the C.I.’s information and the drugs found on his person, or whether
the police immediately arrested him based solely on the C.I.’s information
and the search was incident to the arrest. At the suppression hearing,
Officer Smith testified that the other members of the surveillance team
“moved in and detained [Appellant].” (N.T. Suppression Hearing, 5/20/15,
at 10). Bensalem Township Police Officer Joseph Gansky testified that he
“approached [Appellant] and detained him and took him out of the store.”
(Id. at 17). He then searched Appellant, transported him to the police
station, and read him his rights. (See id. at 18). The parties appear to use
the terms and variants of detain, custody, and arrest interchangeably; and
often seem to contradict themselves as to whether the police detained and
searched Appellant or arrested and searched Appellant. (See id. at 5)
(defense counsel states she is challenging arrest and search of Appellant
without probable cause), (see id. at 33) (defense counsel argues that
Appellant was “seized and searched” without probable cause), (see id. at
38) (trial court found that Officer Gansky effectuated arrest of Appellant
immediately after Officer Smith notified him of C.I.’s identification); (see
also Trial Court Opinion 8/04/15, at 1) (noting that Appellant was
challenging search as incident to unlawful arrest), (see id. at 2) (describing
sequence of events as Officer Gansky detaining Appellant, searching him,
and then taking him into custody), and (see id. at 4-7) (analyzing events as
arrest without probable cause and search incident to arrest rather than as
investigatory detention and frisk).     In their briefs, Appellant and the
Commonwealth both treat the issue as an arrest and a search incident to
that arrest. (See Appellant’s Brief, at 9-16; Commonwealth’s Brief, at 8-
15). Given the lack of clarity in the underlying record, we will not dispute
the parties’ characterization of the events. In any event, the various
interpretations would not change our disposition.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      drug deal. Appellant further stated that at the time of his arrest,
      he possessed two bundles of heroin that he planned to sell for
      $200.

             After being presented with this evidence during the
      suppression hearing, the [trial c]ourt concluded that police had
      probable cause to arrest and search Appellant. As a result, the
      [trial c]ourt denied Appellant’s motion to suppress the heroin
      and cocaine found in his possession.

             Following the conclusion of the suppression hearing,
      counsel entered a stipulation to the authenticity and admissibility
      of the laboratory report prepared by the Bucks County Crime
      Laboratory. The report revealed that the substances found in
      Appellant’s possession tested positive for 0.63 grams of heroin
      and 0.03 grams of cocaine. The [c]ourt then incorporated the
      testimony and exhibits presented during the suppression hearing
      into the record for consideration.

             The [c]ourt ultimately found Appellant guilty of all three
      charged offenses. Appellant was then sentenced to serve two-
      and-a-half to five years’ incarceration in a state correctional
      institution on count one—possession with intent to deliver a
      controlled substance. No further penalty was imposed on counts
      two or three. . . .

(Trial Court Opinion, 8/04/15, at 1-4) (record citations omitted).

      On June 10, 2015, Appellant filed a timely notice of appeal. On June

19, 2015, the trial court directed Appellant to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925(b). Appellant filed his

timely Rule 1925(b) statement on July 1, 2015. On August 4, 2015, the trial

court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following question for our review:

            Did not the trial court err in denying the motion to
      suppress the evidence where [Appellant] was arrested on the
      say so of a C.I. [of] whom there was no conformation (sic) of his


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      reliability, veracity or basis of knowledge and where the police
      did not observe any illicit behavior by Appellant?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

      On appeal, Appellant challenges the denial of his motion to suppress.

(See id. at 9-15). When we review a ruling on a motion to suppress, “[w]e

must determine whether the record supports the suppression court’s factual

findings and the legitimacy of the inferences and legal conclusions drawn

from these findings.”   Commonwealth v. Holton, 906 A.2d 1246, 1249

(Pa. Super. 2006), appeal denied, 918 A.2d 743 (Pa. 2007) (citation

omitted). Because the court in the instant matter found for the prosecution,

we will consider only the testimony of the prosecution’s witnesses and any

uncontradicted evidence supplied by Appellant.      See id.       If the evidence

supports the suppression court’s factual findings, we can reverse only if

there is a mistake in the legal conclusions drawn by the court. See id.

      On appeal, Appellant appears to concede that the police had

reasonable cause to conduct an investigatory detention, only challenging

whether they had probable cause to arrest.      (See Appellant’s Brief, at 9).

Specifically, Appellant argues that:

            The police lacked probable cause to arrest Appellant based
      upon the say so of [a confidential] informant who claimed that
      Appellant was a drug dealer from whom he could buy drugs. . . .
      No suspicious activity was observed by the police.           The
      [confidential] informant’s veracity, reliability and basis of
      knowledge were unknown and untested.

(Id. at 8).


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        Our Supreme Court has stated:

        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. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citations

and quotation marks omitted, emphasis in original). The Court also stated

that:

        [p]robable cause is a practical, nontechnical conception: it is a
        fluid concept—turning on the assessment of probabilities in
        particular factual contexts not readily, or even usefully, reduced
        to a neat set of legal rules. Indeed, the instant case illustrates
        as clearly as any other the very reason we adopted this
        approach, namely, the need to be mindful of the notion of
        probable cause as based on the factual and practical
        considerations of everyday life on which reasonable and prudent
        men, not legal technicians, act.

Commonwealth v. Ruey, 892 A.2d 802, 815 (Pa. 2006) (citations and

quotation marks omitted).

        Recognizing these principles, this Court has stated:

              Probable cause does not involve certainties, but rather the
        factual and practical considerations of everyday life on which
        reasonable and prudent men act. It is only the probability and
        not a prima facie showing of criminal activity that is a standard
        of probable cause. To this point on the quanta of evidence
        necessary to establish probable cause . . . finely tuned standards
        such as proof beyond a reasonable doubt or by a preponderance
        of the evidence, useful in formal trials, have no place in the
        [probable-cause] decision.

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Commonwealth v. Dommel, 885 A.2d 998, 1002 (Pa. Super. 2005),

appeal denied, 920 A.2d 831 (Pa. 2007). (citations and quotation marks

omitted). Lastly, probable cause “exists when criminality is one reasonable

inference, not necessarily even the most likely inference.” Commonwealth

v. Spieler, 887 A.2d 1271, 1275 (Pa. Super. 2005) (citation omitted).

     With respect to the use of a confidential informant’s information as the

basis for probable cause, our Supreme Court has stated:

           . . . a determination of probable cause based upon
     information received from a confidential informant depends upon
     the informant’s reliability and basis of knowledge viewed in a
     common sense, non-technical manner. Thus, an informant’s tip
     may constitute probable cause where police independently
     corroborate the tip, or where the informant has provided
     accurate information of criminal activity in the past, or where
     the informant himself participated in the criminal activity.

Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) (citations

omitted) (emphases in original).

     Here, the trial court cited the following facts in concluding that there

was probable cause to arrest Appellant.

           The arresting officers in this case had an abundant basis
     upon which to conclude that the purpose of Appellant’s presence
     at the Wawa was to conduct a drug sale, and therefore[,] that
     there was probable cause to place Appellant under arrest. The
     facts and circumstances in support of this conclusion include:
     (1) the C.I. advised Officer Smith that he had purchased heroin
     and cocaine from Appellant in the past; (2) Officer Smith heard
     the C.I. order a quantity of heroin from Appellant over the
     telephone; (3) the C.I. provided an accurate description of
     Appellant as a large black male with a full “Muslim style” beard,
     which was later confirmed by police observation at the Wawa;
     (4) the C.I. told Officer Smith that Appellant would be driving a

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      blue (or dark colored) Honda minivan, which was subsequently
      confirmed by police observation at the Wawa; (5) Appellant
      appeared approximately within the prearranged time; (6)
      Appellant appeared at the prearranged location; (7) the C.I.
      confirmed to Officer Smith that Appellant was the individual with
      whom he arranged to meet at the Wawa to purchase drugs. As
      a result, Officer Smith could effectively evaluate the C.I.’s basis
      of knowledge and reliability in making this tip to law
      enforcement.

            Armed with this information, a reasonable person in Officer
      Smith’s position could reasonably conclude that Appellant arrived
      at the Wawa for the purpose of committing a crime. . . .

(Trial Ct. Op., at 6-7).    We agree with the trial court that, when one

considers these facts in combination, they are sufficient to justify an arrest.

See Commonwealth v. Verdekal, 506 A.2d 415, 420 (Pa. Super. 1986)

(“Facts insufficient to justify an arrest if considered separately may in

combination supply probable cause.”) (citation omitted). Moreover, we note

that the C.I. was known to police and was actively participating in criminal

activity.   (See N.T. Suppression Hearing, 5/20/15, at 8, 13-14); see also

Clark, supra at 1288. He also arranged for the drug deal in the presence of

the police officer (see N.T. Suppression Hearing, at 8), and remained with

the officer during the incident, identifying Appellant, his drug dealer, for the

police (see id. at 10). See Commonwealth v. Griffin, 954 A.2d 648, 651-

52 (Pa. Super. 2008), appeal denied, 967 A.2d 958 (Pa. 2009) (noting that

“[t]he more intimate the basis of knowledge [of an informant’s tip], the

more likely the information is to be trustworthy.”) (citation omitted). This

information, all of which the record at the suppression hearing supports, is


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sufficient to establish the requisite probable cause to arrest Appellant. 4 See

Clark, supra at 1288; Ruey, supra at 815-16.          The trial court properly

denied the motion to suppress. Appellant’s claim lacks merit.

       Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/2015




____________________________________________


4
  We are not persuaded by Appellant’s reliance on the Pennsylvania Supreme
Court’s plurality decision in In the interest of O.A., 717 A.2d 490 (Pa.
1998). (See Appellant’s Brief, at 10, 13-14). Firstly, a plurality decision
does not constitute binding authority. See Commonwealth v. Henkel, 90
A.3d 16, 32 (Pa. Super. 2014), appeal denied, 101 A.3d 785 (Pa. 2014)
(citations omitted). Secondly, O.A. is factually inapposite because the C.I.
in that case, unlike in the instant matter, had not purchased drugs from the
defendant but rather had seen him at some unknown point of time in
possession of drugs. See O.A., supra at 496-97.



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