J-S74018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYRIEK OATES                               :
                                               :
                       Appellant               :   No. 2447 EDA 2015

            Appeal from the Judgment of Sentence January 16, 2014
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0012603-2013


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 20, 2017

        Tyriek Oates appeals nunc pro tunc from his judgment of sentence,

entered in the Court of Common Pleas of Philadelphia County, following his

conviction for possession with intent to deliver narcotics1 and possession of a

controlled substance of a person not registered.2         After careful review, we

affirm.

        The trial court aptly summarized the relevant facts of the case, from the

suppression hearing, as follows:

        The Commonwealth presented the testimony of Police Officer
        David Ewing and [Police Officer] Daniel Villafane. In summary[,]
        Police Officer Ewing testified that on July 27, 2013, at
        approximately 8:20 to 8:30 p.m., he was on duty as [a]
        Philadelphia police officer and was in the area of 1119
        Moyamensing Avenue. Police Officer Ewing was in an unmarked
        vehicle in plain clothes with a fellow officer at the time. He stated
____________________________________________


1   35 P.S. § 780-113(a)(3).

2   35 P.S. § 780-113(a)(16).
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       he observed a white male, identified as Mr. Rossi, standing in the
       area of the 1200 [b]lock of Moyamensing Avenue with money in
       his left hand and then speaking on his cell phone, which he held
       in his right hand.

       He stated that upon seeing this, his partner drove the unmarked
       vehicle around the block and parked on Moyamensing Avenue, up
       the street from where they made this initial observation. He
       exited the vehicle and walked in the direction of where he was
       able to observe Mr. Rossi’s actions.

       Police Officer Ewing stated that he then observed a black Chrysler
       300 pull up to 1119 Moyamensin Avenue and saw the defendant
       exit this vehicle and approach Mr. Rossi, who was now standing in
       the doorway of that address. He testified that he observed Mr.
       Rossi hand the defendant an unknown amount of money and then
       observed the defendant hand Mr. Rossi small objects into his
       open[] palm.

       At that point Officer Ewing testified that he radioed to his backup
       team to follow the black Chrysler. Police Officer Ewing then
       walked across the street after the Chrysler left and Mr. Rossi had
       gone inside of 1119 Moyamensing Avenue. Through partially
       opened vertical blinds, he was able to observe Mr. Rossi with a
       small plastic bag of white powdery substance 3 that he suspected
       to be crack cocaine. At that point he testified that he radioed the
       backup team to stop the black Chrysler that the defendant was in.

       On cross-examination, Police Officer Ewing reiterated that he
       observed clearly what he had previously testified to, including
       being able to see into the home through [the] window after what
       he suspected was a narcotics transaction, because of the open
       position that the vertical blinds were in when he made this
       observation. Photographs admitted into evidence supported his
       testimony that the blinds were partially opened.

       At the time of this incident, Police Officer Ewing had been a police
       officer for nine years and testified that he had conducted over 100
       narcotics surveillances prior to this surveillance and made what
____________________________________________


3 Officer Ewing actually testified that he saw “two clear bags with an off-white
chunky substance which [he] believed to be crack cocaine” in Rossi’s hand
through the vertical blinds, immediately following the observed exchange with
Oates. N.T. Suppression Motion, 1/7/14, at 7-8. However, a search incident
to Oates’s arrest did uncover one small bag containing an off-white chunky
substance in Oates’s underwear. Id. at 46.
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       he estimated to be 500 narcotics arrests for crack cocaine in his
       career up to that point. He testified that he believed he had
       observed a hand-to-hand narcotics transaction take place
       between Mr. Rossi and [Oates].

       The Commonwealth then called Police Officer Villafane, who
       testified in summary that he was acting as a backup to Police
       Officer Ewing and his partner on the evening of July 27, 2013.
       This [o]fficer stopped the black Chrysler 300 that the defendant
       was a passenger in after being directed to do so by Police Officer
       Ewing over police radio. He stated that the defendant was in the
       passenger’s seat and initially provided a driver’s license with false
       information when he was asked for his identification. [Oates] was
       then placed under arrest and a search incident to that arrest
       revealed [Oates] had small plastic bags, as well as a larger
       sandwich type bag on his person, both of which contained a white
       powdery substance of suspected crack cocaine, as well as a plastic
       bag containing alleged heroin and $635.00.

       The confiscated narcotics tested positive for cocaine base and
       heroin. The narcotics, the currency, and the cell phone [were]
       recovered from [Oates] and were all placed on property receipts.4

Trial Court Opinion, 1//19/17, at 5-7 (footnotes omitted).

       On November 12, 2013, Oates filed a motion to suppress arguing that

his arrest was illegal because the police did not have probable cause to believe

that he was involved in criminal activity and, therefore, all the physical

evidence recovered from the arrest should be suppressed.          On January 7,

2014, the court held a suppression hearing; at the conclusion of the hearing,
____________________________________________


4 Although on cross-examination Officer Villafane testified that the vehicle
Oates was in was stopped at 15th and Shunk Streets in the City of
Philadelphia, all the police paperwork indicated that Oates was stopped in the
1200 block of Moyamensing Avenue. N.T. Suppression Hearing 1/7/14, at 45.
The trial court, however, determined that this fact was not of any significance
to the overall facts of this case for purposes of suppression where the location
of the vehicle stop was irrelevant to the issue of probable cause.



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the court denied the motion and proceeded to a non-jury trial.        See N.T.

Suppression Hearing, 1/7/2017, 67. Oates was found guilty of the above-

mentioned offenses and was sentenced to 21-42 months’ incarceration,

followed by three years of probation.5

       On appeal, Oates raises the following issues for our consideration:

       (1)    Did the suppression court err by finding probable cause
              existed to arrest [Oates] based on the police [officer]’s
              observation of a single hand[-]to[-]hand transaction
              coupled with the supposed plain sight of drugs that were not
              associated with [Oates]?

       (2)    Did the lower court err by finding that the police conducted
              a lawful frisk of [Oates] where they did not articulate that
              the items seized from him were immediately identifiable as
              contraband?

       Probable cause to arrest and search exists where the facts and

circumstances within the knowledge of an officer are based upon reasonably

trustworthy information and are sufficient to warrant a man or woman of

reasonable caution in the belief that a suspect has committed or is committing

a crime. Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009). In

determining whether probable cause exists, an appellate court applies a

totality of the circumstances test. “A police officer’s experience may fairly be

regarded as a relevant factor in determining probable cause.”       Id. at 936.

However, there must be a nexus between the officer’s experience and the

search, arrest, or seizure of evidence. Id.



____________________________________________


5 The section 780-113(a)(16) offense merged, for sentencing purposes, with
the possession with intent to deliver charge.
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      In Thompson, a police officer with nine years of experience was

patrolling the streets in a high crime area. The officer observed the defendant

hand money to another individual in exchange for a small object. Id. at 930.

Relying upon his experience, the officer believed that a drug transaction had

just transpired. The officer stopped the defendant and recovered heroin from

the appellant's pocket. Id. The Supreme Court held that “a police officer's

experience may fairly be regarded as a relevant factor in determining probable

cause.”   Id. at 935. However, the Thompson Court cautioned courts that

they “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.”   Id. (quoting Dunlap, 941 A.2d at 676).

“Indeed, a factor becomes relevant only because it has some connection to

the issue at hand.” Id.

      Here, like in Thompson, Officer Ewing observed a single hand-to-hand

transaction of currency exchanged for a small, unidentified object.     Under

these limited circumstances, the value of the police officer’s experience

became critical to the probable cause determination. Because Officer Ewing’s

observation of the lone transaction, by itself, did not create probable cause,

his experience was necessary to determine whether probable cause existed.

As stated in Thompson, that experience has value only if the officer can

demonstrate a nexus between the experience and the observed behavior.




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       Viewing the totality of the circumstances, we conclude that probable

cause existed to arrest Oates. Here, Officer Ewing observed Oates approach

Rossi and given him currency in exchange for small objects.        Officer Ewing

testified that through partially opened vertical blinds6 he clearly saw “two clear

bags with an off-white chunky substance which [he] believed to be crack

cocaine” in Rossi’s hand immediately following the observed exchange with

Oates. N.T. Suppression Hearing, 1/7/14, at 7-8. Officer Ewing was a nine-

year veteran of the Philadelphia Police Force at the time of the arrest, had

conducted over 100 narcotic surveillances, and estimated that he had made

500 arrests for crack cocaine in his career. Id. at 10-11. Moreover, Officer

Ewing testified that he and his partner were in the process of following another

suspect, who had just been observed the night before at the exact location of

12th and Moyamensing Avenue dealing narcotics, when they saw the instant

transaction between Oates and Rossi. Id. at 12.7

       Accordingly, we conclude that probable cause to arrest and search Oates

existed where the facts and circumstances within Officer Ewing’s knowledge

were based upon reasonably trustworthy information and were sufficient to
____________________________________________


6The Commonwealth introduced a photograph showing that the window blinds
were open; Officer Ewing testified that the photograph accurately depicted the
scene as he had viewed it at the time immediately after the exchange between
Rossi and Oates. N.T. Suppression Hearing, 1/7/14, at 31-32; 42.

7 Because we have determined that Office Ewing lawfully arrested Oates, there
is no need to consider whether the evidence could have been lawfully seized
as a frisk incident to an investigatory stop.



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warrant an individual, of reasonable caution, to believe that Oates had

committed or was committing a crime.   Thompson, supra.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/2017




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