J-A07002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    GREGORY SCIPPIO                            :   No. 844 EDA 2018

                     Appeal from the Order January 19, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): MC-51-CR-0009888-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY OLSON, J.:                                 FILED APRIL 17, 2019

        The Commonwealth of Pennsylvania appeals from an order entered on

January 19, 2018, in the Court of Common Pleas of Philadelphia County

(hereinafter “court of common pleas”), which granted Gregory Scippio’s

(Appellee) petition for writ of certiorari along with his motion to suppress.1

We reverse.

        The court of common pleas summarized the relevant facts as follows.

        The following facts were presented at the hearing for the motion
        to suppress. On April 8, 2017, at 8:20 p.m., [after receiving
        multiple complaints about narcotics sales,] Officer Patrick Biles
        and other members of the 15th Police District Narcotics
        Enforcement Team [] set up a plain clothes surveillance
        [operation,] specifically targeting [] a Chinese restaurant [along
        Frankford Avenue]. Officer Biles testified at the [hearing on
        Appellee’s motion to suppress]; however, not testifying was the
        officer who actually received the radio call from Officer Biles, and
____________________________________________


1   As made final by the March 5, 2018, order denying reconsideration.
____________________________________
* Former Justice specially assigned to the Superior Court.
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      who arrested Appellee, Officer [Thomas Schaffer.] Officer Biles
      testified that, at 8:30 p.m., he observed [Appellee] enter the
      restaurant, wearing a blue jeans jacket, a black hoodie, and jeans.
      At 8:40[p.m.], Appellee was approached by [an] unknown black
      male, wearing a red hoodie [and] black pants, [and] riding a
      mountain bike. There was a brief conversation, then the black
      male handed Appellee unknown paper, United States currency,
      whereupon Appellee went into his right pocket and produced a
      small object that he handed to the male. The male immediately
      left the store on his bike and went eastbound on Church Street.
      Officer Biles testified that he gave a description and direction of
      travel and clothing to his backup officers. They were not able to
      locate the suspect in the area. At 8:42[p.m.], Appellee was
      approached by another unknown black male with white pants and
      a white jacket, carrying a backpack. United States currency was
      passed from the unknown black male to Appellee, who then
      produced “small items.” The unknown black male immediately
      left the store and headed north on Frankford Avenue, but [the
      police were unable to locate him]. At 9:10[p.m.], Appellee was []
      approached by a male in an orange jacket, black hoodie, and black
      pants, [who was] later identified as Andrew Agha. After a brief
      conversation, Appellee took out of his right pocket what appeared
      to be a small clear tube with a neon green cap, and showed it to
      Agha. Agha handed Appellee United States currency [then] took
      the item from Appellee, put it in his pocket[,] and left, heading
      southbound on Frankford Avenue. Agha was stopped a block
      away on the 1600 block of Rowan Street. Officer Vaughn
      recovered [] a clear tube with a green neon top containing a green
      leafy substance [from Agha’s mouth].

      At approximately 9:25 p.m., Officer Biles witnessed Appellee
      leaving the area of [] Frankford Avenue, and “gave an order for
      backup to come in and take him down[.”] [A]gain[,] [Officer Biles]
      never [testified to] the names of the backup officers on his team.
      Officer Schaffer stopped Appellee on the 1600 block of Rowan
      [Street], and recovered seven clear tubes with green neon tops,
      containing a green leafy substance, [] from Appellee’s right
      pocket, as well as $27.00 in different denominations. A field []
      test [showed] the presence of marijuana.

Court of Common Pleas Opinion, 6/21/2018, at 1-3. (internal footnote

and citations omitted).


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        The Commonwealth charged Appellee with possession with intent to

deliver,2 knowing or intentional possession of a controlled substance, 3 and

possession of marijuana.4 Before the Philadelphia Municipal Court (hereinafter

the “suppression court”), Appellee moved for suppression of all physical

evidence confiscated from him on the grounds that it was obtained in violation

of his constitutional rights.      The suppression court denied the suppression

motion after a hearing on September 8, 2017.             Following a trial, the

suppression court found Appellee guilty of possession of marijuana and not

guilty of the other two charges. The suppression court fined Appellee $100.00

and imposed no further penalty. Appellee filed a petition for issuance of writ

of certiorari challenging the suppression court’s denial of his suppression

motion. The court of common pleas granted Appellee’s petition for writ of

certiorari, granted the suppression motion, reversed his conviction, and

vacated his sentence.         This appeal by the Commonwealth, pursuant to

Pa.R.A.P. 311(d), followed.5

____________________________________________


2   35 Pa.C.S.A. § 780-113(a)(30).

3   35 Pa.C.S.A. § 780-113(a)(16).

4   35 Pa.C.S.A. § 780-113(a)(31).

5 In its notice of appeal, the Commonwealth certified that the order appealed
from will, “terminate or substantially handicap the prosecution.” See Pa.R.A.P.
311(d). On March 26, 2018, the court of common pleas ordered the
Commonwealth to file a statement of matters complained of on appeal
pursuant to Pa.R.A.P. 1925(b). The Commonwealth complied on April 13,



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       The Commonwealth presents a single issue for our review:

       Did the [court of common pleas] err in reversing [Appellee’s]
       conviction where the [suppression court] properly determined that
       an officer with probable cause ordered [Appellee’s] arrest and that
       [Appellee] was seized pursuant to that directive?

Commonwealth’s Brief at 4.

       The Commonwealth argues that it was error for the court of common

pleas to grant Appellee’s petition for writ of certiorari and suppression motion.

When a municipal court denies a motion to suppress, finds a defendant guilty,

and imposes sentence, the defendant has two options. He may either petition

the court of common pleas for certiorari or request a trial de novo.         See

Pa.R.Crim.P. 1006(1)(a). If the defendant files a petition for issuance of writ

of certiorari, the court of common pleas sits as an appellate court—it reviews

the record of the suppression hearing before the municipal court.6

Commonwealth v. Neal, 151 A.3d 1068, 1070 (Pa. Super. 2016) (citations

omitted). When sitting as an appellate court reviewing a motion to suppress,

the court of common pleas applies the same standard that this Court would

apply when reviewing the same.


____________________________________________


2018. The court of common pleas issued its 1925(a) opinion on June 21,
2018.

6 At a suppression hearing, “[t]he Commonwealth shall have the burden of
going forward with the evidence and of establishing that the challenged
evidence was not obtained in violation of the defendant's rights.”
Pa.R.Crim.P. 581(H).



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      Specifically, [the court of common pleas] 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, [the court of common pleas] 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, [the
      court of common pleas is] bound by [those] findings and
      may reverse only if the court's legal conclusions are
      erroneous.

Id. at 1070-1071, citing Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.

2010) (internal quotation omitted)(emphasis added). “The scope of review

from a suppression ruling is limited to the evidentiary record created at the

suppression hearing.” Neal, 151 A.3d at 1071.

      Here, the court of common pleas, sitting as an appellate court, found

that the suppression court’s factual findings were not supported by the record.

Specifically, it noted, “[t]he [suppression court] found that there was constant

radio communication between Officer Biles and the arresting officer, and

therefore, the arresting officer had sufficient probable cause to arrest

Appellee.” Court of Common Pleas Opinion, 6/21, 2018, at 3. The court of

common pleas, however, disagreed.          It found that the testimony only

established constant radio communication between Officer Biles and Officer




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Vaughn, and that there was no evidence that Officer Schaffer, who undertook

the search and seizure of Appellee, was in constant radio contact.7 Id. at 4.

       In this case, the court of common pleas applied the rule set forth in

Commonwealth v. Yong, 177 A.3d 876 (Pa. 2018). In Yong, our Supreme

Court announced a rule that it categorized as a “modest amplification of the

vertical application of the collective knowledge doctrine.” Id. at 888. The

vertical approach to the collective knowledge doctrine dictates that an officer

making a warrantless arrest based on orders from a superior officer need not

have probable cause so long as the superior officer had probable cause for the

arrest. See Commonwealth v. Kenney, 297 A.2d 794 (Pa. 1972). Yong

held that where there is evidence that two officers are working as a team, and

one of them has probable cause to stop or arrest an individual, that knowledge

can be imputed to the officer who makes the arrest, even without evidence

that it was actually conveyed.         Id. at 890.   “[W]e hold the seizure is still

constitutional where the investigating officer with probable cause or

reasonable suspicion was working with the officer and would have inevitably

and imminently ordered that the seizure be effectuated.” Id.




____________________________________________


7 The court of common pleas did not dispute that Officer Biles, who witnessed
the three exchanges between Appellee and his alleged customers and had
years of experience surveilling narcotics operations, had probable cause to
arrest and search Appellee. Instead, Appellee argued, and the court of
common pleas agreed, that the evidence did not establish that Officer Schaffer
stopped Appellee based on Officer Biles’ instruction.

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      The court of common pleas applied that rule to the facts as it saw them,

and came to the conclusion that because Officer Biles did not explicitly testify

to the fact that Officer Schaffer received an order or was part of his team,

Officer Schaffer lacked probable cause to stop and search Appellee.

Accordingly, the court of common pleas reversed the order of the suppression

court, granted Appellee’s suppression motion and vacated his conviction and

sentence for possession of marijuana.

      We disagree with the court of common pleas’ very narrow reading of the

record. As stated previously, “[w]here the suppression court’s factual findings

are supported by the record, [the court of common pleas is] bound by [those]

findings and may reverse only if the court’s legal conclusions are erroneous.”

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010). The reviewing

court must also consider only the evidence presented by the party that

prevailed before the suppression court. Id. As such, the court of common

pleas was required to review the evidence presented by the Commonwealth

and determine whether the facts found by the suppression court were

supported by the record.

      The suppression court found that, because the officers were in “constant

radio communication,” there were grounds to arrest Appellee. N.T., 9/8/2017,

at 12. On cross-examination, Officer Biles testified as follows.

            Q. So I am clear, there is only one alleged buyer stopped?

            A. Yes.


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            Q. And that is Mr. Agha?

            A. I think that is how you say it.

            Q. You didn’t witness him get stopped?

            A. No I didn’t.

            Q. That is another officer telling you about that?

            A. We are in constant radio communication.

N.T., 9/8/2017, at 8-9.

      The court of common pleas interpreted Officer Biles’ statement, “[w]e

are in constant radio communication,” as referring only to communications

between Officer Vaughn and Officer Biles, and excluding Officer Schaffer from

their communication loop. However, the suppression court clearly understood

that statement to refer to the entire narcotics enforcement team, including

Officer Schaffer. Moreover, the court of common pleas took issue with the

fact that Officer Biles never specifically stated that Officer Schaffer was part

of the narcotics enforcement team. The suppression court, however, inferred

as much. This inference is supported by the following testimony given by

Officer Biles.   “I witnessed the defendant leaving the area of [] Frankford

[Avenue]. Fearing he wasn’t coming back, I gave an order for backup to

come in and take him down. Officer Schaffer stopped the defendant

on the 1600 block of Rowan.” N.T. 9/8/2017, at 6 (emphasis added). It

is reasonable to conclude from Officer Biles’ testimony that Officer Schaffer




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was the backup to which Officer Biles referred. Again, the suppression court’s

findings were supported by the record.8

       The court of common pleas, sitting as an appellate court, was bound by

the factual findings of the suppression court because they were supported by

the record. In light of the facts found by the suppression court, Appellee was

stopped by an officer who was acting on the orders of another officer with

probable cause to arrest and search Appellee.        Hence, Appellee was the

subject of a lawful arrest.        See Kenney, 297 A.2d at 796. The court of

common pleas erred in reversing the decision of the suppression court and

we, therefore, vacate its rulings. The order of the Court of Common Pleas is

vacated. Appellee’s conviction and sentence are reinstated.

       Order reversed.       Appellee’s conviction and judgment of sentence of

September 8, 2017, are reinstated. Jurisdiction relinquished.




____________________________________________


8 We reject Appellee’s contention that the present case is distinguishable from
Yong in that Officer Biles, the investigating officer, did not have probable
cause to seize Appellee, and therefore probable cause could not be imputed
to the arresting officer, Officer Schaffer. See Brief for Appellee at 11-12.
Officer Biles witnessed Appellee participate in what he believed, based on his
training and experience, to be three drug transactions in a location about
which he had received complaints of drug trafficking. Officer Biles had
probable cause to search and seize Appellee. See Commonwealth v.
Thompson, 985 A.2d 928, 936 (Pa. 2009). Moreover, as previously noted,
the court of common pleas did not find that Officer Biles lacked probable cause
to seize Appellee. See p.6, n. 7, supra.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/19




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