J-S15016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FRANZORA ARNEZ SMITH                       :
                                               :
                       Appellant               :   No. 992 WDA 2018

      Appeal from the Judgment of Sentence Entered September 29, 2017
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0003149-2016


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                              FILED AUGUST 26, 2019

       Appellant, Franzora Arnez Smith, appeals from the judgment of

sentence entered following his convictions of one count of conspiracy of

possession with intent to deliver (“PWID”), two counts of PWID, one count of

possession of drug paraphernalia, two counts of simple possession of a

controlled substance, one count of person not to possess a firearm, and one

count of receiving stolen property.1 We affirm.

       From April 20, 2016, until May 19, 2016, Appellant and his co-

defendant, Stephen Barry-Gibbons (“Juan”), were persons of interest in

relation to a drug trafficking investigation and surveillance being conducted at

1055 West 30th Street by the City of Erie Police Department. During the course

____________________________________________


1 18 Pa.C.S. § 903, 35 P.S. §§ 780-113(a)(30), (a)(32), (a)(16), 18 Pa.C.S.
§§ 6105(c)(2) and 3925(a), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15016-19


of the investigation, several confidential informants were involved in

controlled purchases of narcotics from Appellant and Juan. On the evening of

May 19, 2016, while en route to a controlled purchase, the police stopped the

vehicle in which Appellant was a passenger and placed him under arrest.

Appellant was charged with the crimes stated above. On January 20, 2017,

Appellant filed a motion to suppress all evidence obtained pursuant to the

traffic stop and search of Appellant. A hearing was held on April 19, 2017,

following which the motion to suppress was denied.

      On August 16, 2017, at the conclusion of a three-day jury trial, Appellant

was convicted of all charges.       On September 29, 2017, the trial court

sentenced Appellant to serve an aggregate term of incarceration of eighteen

to thirty-six years.   On February 6, 2018, Appellant filed a pro se post-

sentence motion, which the trial court denied on February 9, 2018.         After

some procedural maneuvering, Appellant was granted leave by the trial court

to appeal nunc pro tunc. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      A. Whether the trial court committed an abuse of discretion and/or
      error of law when it denied the Appellant’s omnibus motion to
      suppress?

      B. Whether the Commonwealth failed to present sufficient
      evidence to find the Appellant guilty beyond a reasonable doubt
      of conspiracy of [PWID] and [PWID]?

Appellant’s Brief at 3 (full capitalization omitted).


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       We address Appellant’s contentions in reverse order because he would

be entitled to discharge if the evidence was insufficient to support the verdict.

“Because a successful sufficiency of the evidence claim warrants discharge on

the pertinent crime, we must address this issue first.” Commonwealth v.

Toritto, 67 A.3d 29, 33 (Pa. Super. 2013). Moreover, we do not review that

type of allegation based upon a diminished record; instead, we consider all

evidence adduced, even that which Appellant claims should be suppressed.

See Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011)

(explaining that “in conducting our [sufficiency] analysis, we consider all of

the evidence actually admitted at trial and do not review a diminished

record”).

       Appellant argues that the Commonwealth did not present sufficient

evidence to convict Appellant of the crimes of conspiracy of PWID and PWID.2

Appellant’s Brief at 13-16.         With regard to his conviction of conspiracy,



____________________________________________


2   We observe that the argument portion of Appellant’s brief also contains
discussions challenging whether the Commonwealth presented sufficient
evidence to support the convictions of person not to possess a firearm and
receiving stolen property. Appellant’s Brief at 16-17. However, these specific
challenges were not set forth in Appellant’s Pa.R.A.P. 1925(b) statement.
Thus, we are constrained to conclude that these specific arguments are waived
for purposes of appellate review. See Commonwealth v. Lord, 719 A.2d
306, 308 (Pa. 1998) (holding that where a trial court directs a defendant to
file a concise statement pursuant to Pa.R.A.P. 1925, any issues not raised in
that statement shall be waived). See also Commonwealth v. Oliver, 946
A.2d 1111, 1115 (Pa. Super. 2008) (noting that Lord “requires a finding of
waiver whenever an appellant fails to raise an issue in a court-ordered
Pa.R.A.P. 1925(b) statement”).

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Appellant contends that the record fails to establish that Appellant and Juan

had any agreement that promoted or facilitated the commission of the crime

of PWID. Id. at 14. Primarily, Appellant claims the Commonwealth failed to

present evidence connecting Appellant to Juan or the apartment at 1055 West

30th Street.   Id.   In addition, Appellant asserts that “there is absolutely

nothing that established that the Appellant committed any overt act in

furtherance of a conspiracy with [Juan].” Id. at 15.

      Our standard of review is well established:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder[’s].   In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the finder
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa. Super. 2011).

      The crime of criminal conspiracy is set forth in Section 903 of the Crimes

Code which provides, in relevant part, as follows:

      § 903. Criminal conspiracy.

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     (a) Definition of conspiracy. — A person is guilty of conspiracy
     with another person or persons to commit a crime if with the intent
     of promoting or facilitating its commission he:

           (1) agrees with such other person or persons that
           they or one or more of them will engage in conduct
           which constitutes such crime or an attempt or
           solicitation to commit such crime; or

           (2) agrees to aid such other person or persons in the
           planning or commission of such crime or of an attempt
           or solicitation to commit such crime.

     (b) Scope of conspiratorial relationship. — If a person guilty
     of conspiracy, as defined by subsection (a) of this section, knows
     that a person with whom he conspires to commit a crime has
     conspired with another person or persons to commit the same
     crime, he is guilty of conspiring with such other person or persons,
     to commit such crime whether or not he knows their identity.

     (c) Conspiracy with multiple criminal objectives. — If a
     person conspires to commit a number of crimes, he is guilty of
     only one conspiracy so long as such multiple crimes are the object
     of the same agreement or continuous conspiratorial relationship.

                                   * * *

     (e) Overt act. — No person may be convicted of conspiracy to
     commit a crime unless an overt act in pursuance of such
     conspiracy is alleged and proved to have been done by him or by
     a person with whom he conspired.

18 Pa.C.S. § 903.

     Furthermore, we have explained the following:

           A conviction for criminal conspiracy, 18 Pa.C.S.A. § 903, is
     sustained where the Commonwealth establishes that the
     defendant entered an agreement to commit or aid in an unlawful
     act with another person or persons with a shared criminal intent
     and an overt act was done in furtherance of the conspiracy.

          The essence of a criminal conspiracy is the common
     understanding that a particular criminal objective is to be

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      accomplished. Mere association with the perpetrators, mere
      presence at the scene, or mere knowledge of the crime is
      insufficient. Rather, the Commonwealth must prove that the
      defendant shared the criminal intent, i.e., that the Appellant was
      “an active participant in the criminal enterprise and that he had
      knowledge of the conspiratorial agreement.” The defendant does
      not need to commit the overt act; a co-conspirator may commit
      the overt act.

            A conspiracy is almost always proven through circumstantial
      evidence. “The conduct of the parties and the circumstances
      surrounding their conduct may create ‘a web of evidence’ linking
      the accused to the alleged conspiracy beyond a reasonable doubt.”
      The evidence must, however, “rise above mere suspicion or
      possibility of guilty collusion.”

                  Among the circumstances which are relevant,
            but not sufficient by themselves, to prove a corrupt
            confederation are: (1) an association between alleged
            conspirators; (2) knowledge of the commission of the
            crime; (3) presence at the scene of the crime; and (4)
            in some situations, participation in the object of the
            conspiracy. The presence of such circumstances may
            furnish a web of evidence linking an accused to an
            alleged conspiracy beyond a reasonable doubt when
            viewed in conjunction with each other and in the
            context in which they occurred.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002) (en

banc) (citations omitted).

      We initially address whether the Commonwealth presented sufficient

evidence that Appellant and Juan had any agreement that promoted or

facilitated the commission of the crime of conspiracy of PWID. Specifically,

Appellant contends that the Commonwealth failed to present physical

evidence that connected Appellant to the 1055 West 30th Street property.

Appellant’s Brief at 14.


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      Our review of the record reflects that the Commonwealth presented

testimony from Andre Collins, who managed the rental of the apartment at

1055 West 30th Street. N.T., 8/14/17, at 30-50. Mr. Collins testified that Juan

had been renting the apartment from July of 2015 through May of 2016. Id.

at 33-34.   Mr. Collins further stated that he had seen two or three other

individuals going in and out of Juan’s apartment. Id. at 41.

      Also, Sergeant Matthew Benaci, a County Detective with the Erie County

District Attorney’s Office, testified at Appellant’s trial. N.T., 8/15/17, at 36-

65. Sergeant Benaci stated that, when Appellant was searched incident to his

arrest, the police discovered two keys in Appellant’s pocket. Id. at 46. The

officer testified that “[t]hese keys fit the front outside exterior door to 1055

West 30th Street, as well as fit the secondary inside door that led into the

apartment.”    Id.    Sergeant Benaci explained, “It was the second floor

apartment, so [there] was a lower door that locked as well as a staircase that

also opened the second [door] into the apartment.” Id. at 46-47. Police also

recovered from Juan an identical set of keys that opened those doors. Id. at

47.

      In addition, Detective Michael Chodubski, a member of the Drug Unit at

the Erie Police Department, testified on the first day of Appellant’s trial. N.T.,

8/14/17, at 80-141. During his testimony, Detective Chodubski narrated a

series of photographic slides showing the exterior of 1055 West 30th Street,

which were taken during poice surveillance of the property. Id. at 83-87. The


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series of photographs depicted Appellant leaving the property and then

returning to the property, putting his hand up to the deadbolt of the exterior

door, and then entering the property. Id. at 85-87. The testimony offered

by Sergeant Benaci and Detective Chodubski was sufficient to connect

Appellant to the apartment rented by Juan at 1055 West 30th Street.

Appellant’s contrary claim that there was not sufficient evidence to associate

him with the apartment lacks merit.

      Further, Appellant asserts that the Commonwealth failed to establish

that an overt act was performed in furtherance of the conspiracy. Appellant’s

Brief at 15.   Appellant claims there was no mention of a controlled buy

performed by Appellant, which would have established an overt act in

furtherance of the conspiracy. Id.

      Our review of the record reflects the following transpired during

testimony offered by Detective Chodubski:

      Q. And to your knowledge, was there anything recovered from
      [Appellant’s] person that pertained to the two prior [controlled]
      buys on May 3rd and May 11th?

      A. There was a quantity of, I believe, cocaine and heroin and a
      sum of money, I believe it was around $1,500, [$]1,543 if I
      remember. And in that $1,500, there was $40 of the recorded
      buy money that we used in previous buys.

N.T., 8/15/17, at 29. This circumstantial evidence establishing Appellant’s

possession of proceeds from previous controlled purchases conducted during

the investigation is sufficient to prove an overt act was conducted by Appellant

in furtherance of his conspiracy with Juan to commit PWID. Hence, Appellant’s

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challenge to the sufficiency of the evidence to establish a conspiracy lacks

merit.

      In addition, Appellant argues that the Commonwealth presented

insufficient evidence to establish that he committed the crime of PWID.

Appellant’s Brief at 15-16. Specifically, Appellant claims that, although the

record establishes he was in possession of heroin when he was arrested, the

Commonwealth failed to “introduce evidence as to exactly how much heroin

was found on the Appellant.” Id. at 16.

      In order to uphold a conviction of PWID pursuant to 35 P.S. § 780-

113(a)(30), the Commonwealth must prove beyond a reasonable doubt that

the defendant possessed a controlled substance and did so with the intent to

deliver it. Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super.

2000) (en banc). “The intent to deliver may be inferred from an examination

of the facts and circumstances surrounding the case.” Commonwealth v.

Conaway, 791 A.2d 359, 362-363 (Pa. Super. 2002). Factors that may be

relevant in establishing that drugs were possessed with the intent to deliver

include the particular method of packaging, the form of the drug, and the

behavior of the defendant. Aguado, 760 A.2d at 1185. Moreover, we have

held that circumstantial evidence is reviewed by the same standard as direct

evidence–that is, that a decision by the trial court will be affirmed “so long as

the combination of the evidence links the accused to the crime beyond a




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reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa.

Super. 2003) (citations omitted).

      Our review of the record reflects that, under the totality of the

circumstances, the following circumstantial evidence is sufficient to sustain

Appellant’s conviction of PWID. Here, Detective Chodubski also testified on

the second day of Appellant’s trial. N.T., 8/15/17, at 23-36. The detective

stated the following regarding what was discovered during the search of

Appellant at the time of his arrest:

      Yes, in his rear pocket was a wallet that contained his photo I.D.
      We were able to identify him at that time as [Appellant]. And in
      his front right pocket was sandwich baggies containing quantities
      of heroin and crack cocaine.          Also in the pockets was
      approximately – it was actually $1,534 cash, of which contained
      controlled confidential funds.

Id. at 44. Detective Chodubski was then handed the sandwich baggies while

testifying and described the contents:

      Yes. So inside this bag, this is sealed in our evidence packaging
      and then the blue tape you see here was from the Pennsylvania
      State Police Crime Lab, which they will field test the drugs, tell
      you what it is, how much they weigh. And in this case, it was
      sandwich baggies that had numerous knotted sandwich baggies in
      it and these are all very, very small doses, street level sales,
      packaged for street level sales of heroin and crack cocaine. So
      there’s little amounts of them and then they would take a corner
      of a sandwich baggy, put the drugs in it, tie it up real tight and
      then cut it and that’s what you get. It’s very small, very easily
      concealed, and … the drugs are contained in that. And that’s very
      common for the Erie drug trade and how a drug is packaged.

Id. at 45.




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      This evidence, viewed in a light most favorable to the Commonwealth,

is sufficient to establish that, when the police apprehended him, Appellant had

possession of multiple packets of heroin and crack cocaine prepared for street

sale. Appellant was also in possession of a significant sum of currency, which

included money that had been utilized in previous controlled purchases by

confidential informants.     Given the totality of the circumstances, the

Commonwealth presented sufficient evidence to establish that Appellant

possessed the packets of narcotics with the intent to deliver. Accordingly,

Appellant’s assertion that the Commonwealth failed to present sufficient

evidence to prove his possession of narcotics with intent to deliver lacks merit.

      We next address Appellant’s argument that the trial court erred in failing

to grant his motion to suppress. Appellant’s Brief at 9-13. Appellant claims

that the police lacked the necessary probable cause to stop the vehicle in

which he was a passenger and conduct a warrantless arrest. Id. at 11. In

addition, Appellant contends that there were no exigent circumstances present

that would have justified the warrantless arrest. Id. at 11-13. We disagree.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial court’s
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of a
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record ...
      Where the record supports the findings of the suppression court,

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      we are bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). “It is within the suppression court’s sole province as factfinder to

pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.

2006). Moreover, we note that our scope of review from a suppression ruling

is limited to the evidentiary record that was created at the suppression

hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

             The Fourth Amendment to the United States Constitution
      and Article I, Section 8 of the Pennsylvania Constitution protect
      individuals from unreasonable searches and seizures, thereby
      ensuring the “right of each individual to be let alone.”
      Schneckloth v. Bustamonte, 412 U.S. 218, 236, 36 L. Ed. 2d
      854, 93 S. Ct. 2041 (1973); Commonwealth v. Blair, 394 Pa.
      Super. 207, 575 A.2d 593, 596 (Pa. Super. 1990).

Commonwealth v. By, 812 A.2d 1250, 1254 (Pa. Super. 2002).

      To secure the right of citizens to be free from intrusions by police, courts

in Pennsylvania require law enforcement officers to demonstrate ascending

levels of suspicion to justify their interactions with citizens as those




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interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000).

     It is undisputed that:

     [s]tate case law recognizes three categories of interaction
     between police officers and citizens, which include: (1) a mere
     encounter, or request for information, which need not be
     supported by any level of suspicion, but which carries no official
     compulsion to stop or to respond; (2) an investigative detention,
     which must be supported by reasonable suspicion as it subjects a
     suspect to a stop and a period of detention, but does not involve
     such coercive conditions as to constitute the functional equivalent
     of an arrest; and (3) arrest or custodial detention, which must be
     supported by probable cause.

Commonwealth v. Acosta, 815 A.2d 1078, 1082 (Pa. Super. 2003) (en

banc).

     “An arrest is defined as any act that indicates an intention to take the

person into custody and subjects him to the actual control and will of the

person making the arrest. . . . The test is an objective one, i.e., viewed in

the light of the reasonable impression conveyed to the person subjected to

the seizure rather than the strictly subjective view of the officers or the

persons being seized.” Commonwealth v. Butler, 729 A.2d 1134, 1137 (Pa.

Super. 1999) (quoting Commonwealth v. Rodriquez, 614 A.2d 1378, 1384

(Pa. 1992)).

     It is well settled that the police may make a warrantless arrest if

probable cause exists. Commonwealth v. Santiago, 736 A.2d 624, 629-

630 (Pa. Super. 1999). Probable cause for an arrest exists if the facts and

circumstances within the knowledge of the police officer at the time of the

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arrest are sufficient to justify a person of reasonable caution in believing the

suspect has committed or is committing a crime. Id. at 630. Probable cause

justifying an arrest is determined by the totality of the circumstances.

Commonwealth v. Colon, 777 A.2d 1097 (Pa. Super. 2001). Probable cause

does not require certainty, but rather exists when criminality is one reasonable

inference, not necessarily even the most likely inference. Commonwealth

v. Lindblom, 854 A.2d 604, 607 (Pa. Super. 2004). We have long stated

that in determining whether probable cause existed in a particular situation,

a court will look not just at one or two individual factors, but will consider the

“totality of the circumstances” as they appeared to the arresting officer.

Commonwealth v. Dennis, 612 A.2d 1014, 1016 (Pa. Super. 1992).

      Applying these standards to the instant case, we conclude that the

Commonwealth presented sufficient facts at the suppression hearing to

establish probable cause, thereby justifying Appellant’s arrest. In addressing

the claim that the police lacked probable cause to justify the arrest, the trial

court offered the following:

      There was ample justification for Appellant’s seizure given the
      probable cause for his criminal activities … .

             Attached hereto and incorporated herein is the Rule 1925(a)
      Opinion for the appeal of Appellant’s co-defendant, [Juan], at Erie
      County Docket Number 3148 of 2016. As outlined in detail
      therein, Appellant was an active participant in a conspiracy to
      distribute heroin on multiple occasions from March 30, 2016 until
      the time of Appellant’s arrest on May 19, 2016. The police
      investigation included multiple sales of heroin to confidential
      informants by Appellant acting in concert with [Juan]. For the
      reasons set forth in the attached Opinion, there was more than

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       probable cause to arrest Appellant for felony drug offenses on
       May 19, 2016.

Trial Court Opinion, 2/21/18, at 1-2. We observe that the trial court’s opinion

at Commonwealth v. Barry-Gibbons, Erie County Docket No. 3148 of 2016,

includes an exhaustive recitation of the facts presented at the suppression

hearing that support the determination that the police possessed probable

cause to make a warrantless arrest, and we adopt that discussion as our own. 3

Barry-Gibbons Trial Court Opinion, 2/21/18, at 1-7.          As the trial court

ultimately observed:

             All of the three confidential informants were corroborated
       by the surveillance conducted by the police, who observed [Juan]
       and [Appellant] in action, starting from 1055 West 30 th Street to
       the designated meeting sites. Both [Juan] and [Appellant] had a
       house key to enter 1055 West 30th Street. [Juan] was a lessee at
       1055 West 30th Street since July, 2015.

Barry-Gibbons Trial Court Opinion, 2/21/18, at 10.

       The totality of the facts, within the knowledge of the police at the time

of the Appellant’s arrest, was sufficient to justify a person of reasonable

caution in believing that Appellant had committed a crime and was in the

process of proceeding to yet another drug transaction. Santiago, 736 A.2d

at 629-630.     Therefore, the police possessed probable cause necessary to

permit the warrantless arrest of Appellant, and the suppression court properly




____________________________________________


3  The parties are directed to attach a copy of that opinion in the event of
further proceedings in this matter.

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denied Appellant’s motion to suppress. Hence, Appellant’s contrary argument

lacks merit.

      In addition, with regard to Appellant’s allegation that there were no

exigent circumstances present to justify the warrantless arrest, the trial court

offered the following analysis, which we adopt as our own:

            There were also exigent circumstances that justified the
      warrantless arrest of Appellant. At the time of his arrest on
      May 19, 2016, Appellant was likely en route to another sale of
      heroin to a confidential informant. As part of the undercover drug
      investigation of Appellant and [Juan], the police had a variety of
      contacts with customers of Appellant and his co-defendant. Some
      of these contacts were with admitted heroin addicts who were
      buying their heroin from Appellant and/or [Juan] but were not
      working as confidential informants with the Erie Police
      Department. These addicts were not arrested or taken into
      custody. Thus, the distinct possibility existed that these addicts
      would tip off the police investigation to Appellant and/or [Juan].

            Coupled with these circumstances was the concern for the
      safety of the confidential informant who was about to engage in
      another buy from Appellant. If Appellant was arrested after this
      transaction, it would expose that confidential informant and place
      him/her in harm’s way.

           Lt. Nolan described the events of May 19, 2016 and his
      reasons to act at that time:

               “... another drug transaction was imminent, it was
               very likely they were en route to that transaction. So,
               based on everything – that’s why I went into the
               lengthy explanation - everything stacked up and led
               me to believe that there was probable cause at that
               point to take [Appellant] in custody, stop the vehicle
               and proceed with the investigation.

               Q. Well, you had - - you were aware that through the
               investigation, they were trying to - - the confidential
               informant was trying to - - the confidential informant


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J-S15016-19


            was trying to do controlled buys with [Appellant],
            right?

            A. Yes.

            Q. And is it your testimony that there were actual
            controlled buys done by [Appellant]?

            A. Yes.

            Q. And so the reason why you would not allow this last
            controlled buy to move forward prior to making the
            traffic stop is what?

            A. Because all of the informants in this case were
            fearful about these individuals.      [Juan] was well
            known to have a prior murder conviction. So, they
            were fearful of being exposed as working with the
            police. They didn’t want to suffer any retaliation. So,
            we knew the 19th was the day this was all going to go
            down. The fact that [Appellant] was on the way to
            meet the informant, I didn’t want to let him get that
            close, because I didn’t want - - that would, to me,
            would reduce the likelihood that he would be able to
            clearly identify that that informant who ordered up
            those drugs had set him up. And, therefore, that was
            providing a layer of protection to the CI.

      Pre-Trial Hearing Transcript p. 28-29.

            Based on the foregoing explanation, there were exigent
      circumstances that necessitated the warrantless arrest of
      Appellant on May 19, 2016.

Trial Court Opinion, 2/21/18, at 2-3.

      In summary, the police possessed probable cause necessary to permit

the warrantless arrest of Appellant, and attendant exigent circumstances were

present to justify the arrest. Therefore, the suppression court properly denied




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Appellant’s motion to suppress, and Appellant’s contrary argument lacks

merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2019




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                                                                              Circulated 08/13/2019 10:54 AM




COMMONWEALTH OF PENNSYLVANIA : 1N THE COURT OF COI\1MON PLEAS

                         v.                        : OF ERIE COUNTY, PENNSYLVANIA

STEPHEN BARRY-GIBBONS                              : DOCKET NO. 3148 OF 2016


                                  RULE 1925 (A) OPlNION

       The jury trial and sentencing in this matter were before a Senior Judge, the Honorable

Judge Michael E. Dunlavey. This Court presided over Appellant's pre-trial Motion to

Suppress.


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                                      MOTION TO SUPPRESS                               v)     u,
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        In his written Motion to Suppress, Appellant argues there was not probable cause for

the issuance of the search warrant for Appellant's apartment.

       An evidentiary hearing was held on April 19, 2017. The Commonwealth adduced the

testimony   of Lieutenant     Michael Nolan       and Sargeant Michael Chodubski.                    The

Commonwealth introduced the search warrant in question, which was issued on May 19,

2016, with Sgt. Chodubski as the affiant.

       Sgt. Chodubski has been an officer with the Erie Police Department since September,

1996 and a member of the Drug and Vice Unit since November, 2002. He has been involved

in at least 17 5 investigations of the trafficking of all forms of illegal drugs, including heroin

and cocaine.

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        As of the date of the suppression hearing, Lt. Nolan had been a police officer for the

City of Erie for 25 years, including the last 22 years with the Drug and Vice Unit. Lt. Nolan

was also the head of the Drug and Vice Unit. He has likewise been involved in hundreds of

investigations and arrests for drug offenses for all forms of illegal drugs. In sum, both officers

were seasoned, experienced investigators in the field of drug trafficking.

        Lt. Nolan was involved in a prior investigation of Appellant. On January 3, 2007,
Appellant was arrested by the Erie Drug and Vice Unit for various offenses related to his

possession of over 200 grams of cocaine and nearly 5 grams of heroin. Appellant was

convicted of felony drug offenses and a criminal conspiracy. Appellant was sentenced to 4 to

10 years of incarceration. This history was known to Lt. Nolan when the investigation of this

case unfolded.

        On March 30, 2016, Sgt. Chodubski debriefed a person about his/her supplier of

heroin. This person, who would become Confidential Informant # I (CI I) in the search

warrant for this case, identified his/her supplier of heroin as "Juan". When shown a

photograph of Appellant , CI I positively identified Appellant as Juan, his/her heroin dealer.

Appe11ant informed CI 1 that he regularly travels to Detroit to get heroin and that he would

have a supply of heroin to sell whenever needed by CI 1. To contact him when CI I wanted to

buy heroin, Appellant provided two phone numbers, 865-440-3931 and/or 814-572-0836.

Appellant informed CI I that if he was out of town, he would give one of the two phones to a

person called "D", who could seJl Appellant heroin to CI I. "D" was described by CI I as a

tall, light-skinned male. Within the last two months, CI l bought heroin from Appellant

and/or "D" at least 15 times.




                                               2
        CI I was no stranger to the Erie Drug and Vice Unit. CI 1 had previously provided

information on at least 6 individuals involved in drug trafficking in the City of Erie and made

controlled buys for law enforcement in the past. According to Sgt. Chodubski, CI I has never

misled or provided false information in the past to law enforcement.

        As a result of the March 30, 2016 conversation with Sgt. Chodubski, CI l agreed to

make a controlled buy from Appellant. However, at that time, Appellant was out of town so

CI 1 would make the buy from D. Thereafter a controHed buy was arranged. CI 1 was

searched and no drug contraband was found. CI 1 called 865-440-3931 and arranged a drug

buy with D, who directed CI l to meet him in the area of East 26th Street and East Avenue. CI

I was given buy money by the police. Surveillance was set up in the area and CI 1 was

observed by the police meeting with a tall, light-skinned male. A hand-to-hand exchange was

observed during a brief meeting between CI 1 and D. CI 1 met immediately afterwards with

the police and turned over the heroin purchased from D. No contraband or money was found

on CI 1. All of the events before, during and after the drug deal were observed by the constant

police surveillance of CI 1.

       This same scenario was repeated on April 11, 2016. CI 1 told the police that Appellant

was still out of town. CI 1 called D at 865-440-3931 and was told to meet him at East 27th

and Perry Streets. All of the same police controls were in place and corroborated CI l's

purchase of heroin from D at that time.

       On April 20, 2016, CI I informed Sgt. Chodubski that Appellant was in town so a

controlled buy could be arranged. This information was corroborated when CI I caUed 865-

440-3931 and Appellant answered the phone. Appellant informed CI 1 that he was shopping

at a nearby mall, the Millcreek Mall, and would call him when he was done.             CI I's


                                              3
information was corroborated when the police found Appellant shopping at the Millcreek

Mall. Thereafter the police kept Appellant under continual surveillance, including when he

left the mall driving a white Chrysler with an Ohio license plate that came back to a rental

company. There was a female passenger in Appellant's vehicle. Appellant drove from the

mall to his apartment at 1055 West 30th Street in the City of Erie. The two exited the Chrysler

and entered Appellant's apartment through the west side door of the building.

       By that time, CI I was unavailable to make a controlled buy. Nonetheless, the police

kept Appellant's building under surveillance. Shortly, Appellant emerged alone from his

building, entered the white Chrysler and drove several blocks away, meeting with an

individual who was then unknown to the police. The individual met with Appellant briefly,

the two then parted ways. Appellant drove back to his apartment.

       Unbeknownst to AppelJant, the individual who met with him was subsequently

stopped by the police, who inquired about the interaction with Appellant. The individual

provided a host of details about purchasing heroin from Appellant. This individual

subsequently became confidential informant #2 (Cl 2) in the search warrant in this case. CI 2

admitted that he/she had just bought heroin from Appellant. When shown a picture of

Appellant, CI 2 positively identified him as Juan, his/her supplier of heroin. CI 2 went on to

say that Juan had given a phone number of 865-440-3931 to call when heroin was needed. CI

2 stated that Juan leaves town often and told CI 2 that when he was unavailable, another male

would answer the phone and give instructions where to meet. Among the males CI 2 met to

buy heroin using the phone number provided by Appellant was a tall, light-skinned male.

       Notably, all of the information provided by CI 2 independently corroborated all of the

information provided by CI 1, including Appellant's identity as Juan; Appellant's phone


                                              4
number of 865-440-393 l - the same number as used for CI l's two prior buys from D; the

availability of heroin from a tall, light-skinned male if Appellant was out of town; and the

directions where to meet to consummate the deal.

           In addition, CI 2 gave the police the name of "JB" as another black male CI 2 bought

heroin from in Appellant's absence using Appellant's phone number. The transactions

involving CI 2 and JB occurred on the west side of Erie, in the area of West 32nd and Cascade

Streets.

           JB, whose identity was not then known to the police, would later become involved in

sales to CI 1 under the same scenario as described by CI 2. Upon his subsequent arrest, JB

would be identified as Franzora Smith, Appellant's co-defendant in this case.

           On May 3, 2016, a controJJed buy was arranged through CI 1. At this time, CI I told

the police that Appellant was out of town so CI I was not sure who would be answering

Appellant's phone. CI I called 865-440-3931 and JB answered. Cl 1 informed the police JB is

believed to be Appellant's cousin. JB instructed CI 1 to meet him on the west side of Erie at

West 26th and Cranberry Streets. CI l was searched and no contraband was found. CI 1 was

given buy money. Surveillance was set up at Appellant's apartment at 1055 West 30th Street

and at the meeting site. A tall black male. identified by CI 1 as JB, was observed by the

surveillance team exiting the west side door of Appellant's building and walking to the area of

West 26th and Cranberry. There JB met with CI I and exchanged heroin for cash. JB was then

observed walking directly back to Appellant's apartment building at 1055 West 30th Street

and using a key to gain entrance through the west side door.

           On May 11, 2016, another controJled buy occurred. Appellant was again out of town

but CI I was given a new number to call, to-wit: 814-806-6877. When CI l called this new


                                                5
number, JB answered and directed CI l to again meet him in the area of West 26th and

Cranberry Streets. The same controls were utilized by the police. Surveillance was again in

place at Appellant's apartment, 1055 West 30th Street, and the meeting site. The police

observed JB leave the west side door of Appellant's apartment building, enter a tan Mercury

vehicle and drive to the meeting site. There, CI 1 entered JB's vehicle for a short time where

JB sold heroin to CI 1 using the EPD buy money.

       After JB's sale of heroin to CI 1, the police continued surveillance of JB and observed

another individual enter JB's vehicle, stay for a short time, then exit. This individual was not

known to the police.

       Once that individual was out of JB's sight, he/she was stopped by the police and

questioned about what just occurred inside the tan Mercury vehicle. This individual, who

became confidential informant #3 (CI 3) in the search warrant in this case, advised the police

that he/she was a heroin addict and that he/she had just bought heroin from the B/M in the tan

Mercury. CI 3 went on to relate that Appellant was the supplier of heroin. When shown

Appellant's picture, CI 3 positively identified the person therein as "Juan." According to CI

3, Juan transports heroin into Erie from Detroit and has other people selling it for him. Juan

gave CI 3 a phone number to call to buy heroin. If Juan was out of town, another person

would answer the phone and arrange where the deal would occur. CI 3 used Appellant's

phone number to buy heroin from a tall, light-skinned male in the area of East rr: and East

Avenue. CI 3 stated these sales used to occur on the east side of Erie, lately all of the

transactions have been on the west side of Erie.

        Notably, the phone number CI 3 used to call Appellant was 814-806-6877, which is

the same number CI 1 was given and used for the May 11, 2016 controlled buy from JB on


                                               6
the west side of Erie. During this latest transaction with JB, CI 3 was given a new number to

call for the next transaction, 920-371-1787. CI 3 believed this latest number was Juan's

personal phone number.

        On May 19, 2016, CI 3 contacted Sgt. Chodubski and related that "Juan" had called

and was in town with a new supply of heroin. The police then set up surveillance at

Appellant's apartment at 1055 West 30th Street. Parked there was a silver Dodge Charger with
a Michigan registration plate that came from a rental company. Around 4:20 p.m., the police

observed Appellant exit his apartment building alone, enter the silver Charger and drive to the

area of West 34th and Cascade Streets. A short time later, a white female entered Appellant's

vehicle and exited after several minutes. Appellant then drove off.

        The white female was then stopped by the police and asked about her encounter with

Appellant. The woman admitted she was a heroin addict and that her supplier of heroin was

recently arrested. Her supplier gave the person she just met with her phone number. She was

then called on her phone from the number of920-371-1787 and told to meet at West 34° and
                                                                                    1




Cascade, where she would be fronted a quantity of heroin. When she saw a silver Charger pull

into the area, her phone rang. She got into the silver Charger and was provided 5 grams of

heroin for $500. This person told the white female that the quality of this heroin was not that

strong, but that he was going out of town for another supply of heroin. She then exited the

vehicle. Notably, Appellant was positively identified by the police surveillance team as the

driver/sole occupant of the silver Charger during the sale of heroin to the white female.

        Also on May 19, 2016, Sgt. Chodubski spoke to the landlord for 1055 West 30th Street

and learned that Appellant signed a lease for the upstairs apartment in that building in July,

2015.



                                               7
        Based on the foregoing, there was a wealth of probable cause for the issuance of a

search warrant on Appellant's apartment at 1055 West 3011t Street on May 19, 2016. Given his

20 years of experience as a police officer, including 14 years working solely in the Drug and

Vice Unit, Sgt. Chodubski readily knew what was occurring. It was equally obvious to the

seasoned eyes of Lt. Nolan, who conducted a majority of the police surveillance in this case

and knew Appellant from Appellant's prior conviction for trafficking in cocaine and heroin in
2007.

        One does not even need the experience and training of these officers to recognize what

was occurring. Very simply, Appellant was importing heroin into Erie from Detroit. He would

provide his customers with a phone number to call to buy heroin. The customer was directed

to meet at -a certain area of Erie. These transactions occurred in different areas to avoid

detection and so that the customers would not know where Appellant was keeping his supply

of heroin for security purposes. If Appellant was unavailable to sell when the customer would

call, Appellant had associates such as D or m sell heroin for him.

        In order to stay ahead of police detection, Appellant's operation had to be mobile.

Hence, the drug deals were first occurring on the east side of Erie. Appellant was likely using

2710 East Avenue as a "stash" house, i.e. where he would hide his drug supply. Thereafter,

the deals were moved to the west side of Erie, where Appellant used 1055 West 3ot11 Street as

a stash house. At different times, Appellant and JB were seen leaving from 1055 West 30th

Street and not stopping at any other locations to pick up heroin prior to separate heroin sales

to CI 1, CI 3 and the white female. The phone numbers provided to customers by Appellant

were used for a limited time and then changed. The person providing the heroin would vary.

The person selling the heroin made the determination where the best place was to meet.


                                               8
       These conclusions are not whimsical or speculative. Instead, these conclusions are

based on the reliable information provided independently by four separate people. The first

person was CI I, who had a proven history of providing trustworthy information to the police.

CI I provided the factual basis for Appellant's entire operation. These details include

Appellant's street name as Juan; that Juan frequently goes to Detroit to re-supply with heroin

to sell in Erie; Juan provided a phone number to call to buy heroin; the phone number would

change; the call would be answered by Appellant or his subordinate D, later another

subordinate known as JB; the buyer would be directed to the meeting site, which was never at

Appellant's stash house.

       All of the information provided by CI I from March 30, 2016 onward was

corroborated by CI 2 on April 11, 2016. CI 2 was a separate customer of Appellant. CI 2 had

no idea what information CI I had given to the police, yet CI 2 confirmed everything CI 1

previously provided to the police about Appellant's trafficking of heroin.

        In turn, CI I and CI 2 were independently corroborated      en toto by the information
given by CI 3 on May 11, 2016. CI 3 was yet another customer of Appellant who had no idea

what CI I and CI 2 had told the police. Yet all three of these confidential informants

identified Appellant via a photograph as "Juan", their Detroit heroin dealer. Each confidential

informant separately outlined the same modus operandi of Juan, including the phone numbers

given by Appellant, the names of Appellant's associates and the manner in which the deals

were structured.

       In addition, these three confidential informants were corroborated by the white female

heroin addict who bought heroin from Appellant on May 19, 2016 at West 34th and Cascade

Streets. This woman had no knowledge of what the three confidential informants told the


                                               9
police. Yet, she admitted she bought heroin that day from Appellant, who called her from the

same number recently given to CI 3 on May 11, 2016. Appellant told her he gets his heroin

from Detroit.

       All of the information provided by the three confidential informants and the white

female heroin addict was not only consistent, but current, starting March 30, 2016 through the

date of the search warrant on May 19, 2016.

       All of the three confidential informants were corroborated by the surveillance

conducted by the police, who observed Appellant and JB in action, starting from 1055 West

30th Street to the designated meeting sites. Both Appe1lant and JB had a house key to enter

1055 West 301h Street. Appellant was a lessee at 1055 West 30tlt Street since July, 2015.

       Appellant was driving a white Chrysler rental car with an Ohio license plate on April

20, 2016 in Erie. Appellant was next seen driving a silver Dodge Charger rental car with a

Michigan license plate on May 19, 2016 in Erie. To state the obvious, Detroit is located in

Michigan and Ohio is between Michigan and Pennsylvania. It is common for drug dealers to

insulate themselves from law enforcement by the use of various rental cars.

       The police in this case were also acting on infonnation provided by at least one

concerned neighbor of 1055 West 30th Street, who observed activity that caused him/her to

report suspicious drug activity to the police.

       To allege there was not probable cause for the search warrant issued on May 19, 2016

is to tum a blind eye to the reality of what was occurring. Accordingly, this is a baseless claim

on appeal.




                                                 IO
                              ISSUES THAT ARE WAIVED

       In Paragraphs 2 (a-c) of his Concise Statement of Matters Complained of On Appeal,

Appellant raises suppression issues that were not preserved in his Motion to Suppress.

Specifically, for the first time, Appellant claims that all evidence seized after his alleged

illegal arrest should be suppressed. Paragraph 2(a). Likewise, Appellant now contends it was

error in "failing to suppress all evidence seized from Appellant's vehicle without probable
cause to secure a search warrant." Paragraph 2(b). Thirdly, Appellant argues it was error not

to grant suppression because 1055 West 30th Street was "searched prior to obtaining probable

cause to secure a search warrant." Paragraph 2(c).

      These issues were not raised or preserved in Appellant's written Motion to Suppress as

filed on December 30, 2016. Accordingly, these issues were not raised or addressed at the

suppression hearing held in this matter on April 19, 2017. Hence these issues were not

preserved for appeal and are waived.

      To the extent Paragraph 2(c) can be construed as a challenge to the probable cause for

the search warrant, that issue has not been waived. However, it has been exhaustively

examined in the preceding section.




                                              11
                                   PREMATURE ISSUES

      The remaining issues in Appellant's Concise Statement of Matters allege various claims
of ineffective assistance of trial counsel. These claims cannot be addressed based on the

existing record. Accordingly these claims are premature and can be raised as part of a petition

for relief under the Post Conviction Relief Act.




                                              BY THE COURT:



                                                                          I




                                                                     GHAM, JUDGE



cc: District Attorney's Office
    Stephen Barry-Gibbons JS2304, SCI Huntingdon, 1100 Pike Street,      Huntingdon PA
    16654-1112




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