J-S76028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    RONALD WASHINGTON

                             Appellant                No. 1196 EDA 2017


         Appeal from the Judgment of Sentence Entered March 6, 2017
              In the Court of Common Pleas of Delaware County
              Criminal Division at No: CP-23-CR-0002712-2016


BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 12, 2018

        Appellant, Ronald Washington, appeals from the March 6, 2017

judgment of sentence imposing two to four years of incarceration followed by

one year of probation for possession with intent to deliver a controlled

substance (“PWID”), possession of a controlled substance, and possession of

drug paraphernalia. We affirm.

        The trial court recited the pertinent facts in its Pa.R.A.P. 1925(a)

opinion:

               On February 24, 2016, Officer Matthew Donohue, a police
        officer for the City of Chester, in Delaware County, Pennsylvania,
        was on duty and in the Chester Police Station. Officer Donohue
        had been in the Chester Police Department for six (6) years, three
        (3) of which were in the Narcotics Division. Prior thereto, he was
        a police officer in Norwood Borough, Delaware County, PA. In his
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*   Retired Senior Judge assigned to the Superior Court.
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      capacity as a narcotics officer he has been involved in
      approximately 250 drug investigations.

            At approximately 2:40 p.m. on that date he received a call
      from a confidential informant (hereinafter referred to as “CI”)
      about a black male in the area of 10th and Upland Streets in
      Chester wearing a black jacket and black pants selling crack
      cocaine. The call was from a paid informant whom the officer has
      used at least 15 times in the past in connection with the
      preparation of search warrants which were approved by a District
      Justice and where the informant was deemed by the witness as
      being reliable in the past. The confidential informant further
      stated to the witness that the person “…wasn’t stashing the
      narcotics. He had the narcotics on him.”

            After receiving that telephone call Officer Donohue and
      Officer Mack, a Chester narcotics officer in training, left the police
      station and drove to the area of 10th and Upland Streets where
      they observed the Appellant fitting the description provided by the
      confidential informant, that being a black male wearing a black
      jacket and black pants. The police officers exited their vehicle and
      walked up to Appellant who immediately with both hands grabbed
      the closed front pouch of his jacket. He then took his hands of
      the pouch and immediately started shaking. Officer Donohue
      patted him down in the area of his waist and the front pouch
      pocket for weapons. Although the officer felt no weapons, based
      on his training and experience what he felt in the front pouch
      pocket appeared to him to be packaged narcotics. The officer then
      unzipped the pocket, reached in and retrieved a clear sandwich
      bag containing 34 smaller bags with suspected crack cocaine
      which filed tested positive and subsequently confirmed as such at
      the state police crime lab. Also seized from the Appellant was
      $124 in U.S. currency and a cell phone. At that point, the
      Appellant was arrested and taken to the Chester police station for
      processing.

Trial Court Opinion, 7/5/17, at 2-3 (record citations omitted).

      Prior to trial, Appellant filed a motion to suppress the evidence police

retrieved from him during the stop and frisk. The trial court denied the motion

by order of October 18, 2016. Appellant proceeded to a February 2, 2017



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non-jury trial, at the conclusion of which the trial court found Appellant guilty

of the aforementioned offenses. Appellant filed this timely appeal following

the imposition of sentence. He presents two questions:

         1. Whether the lower court erred when it refused to suppress
      the fruits of an illegal stop and frisk of Appellant where the stop
      occurred without reasonable suspicion that criminal activity was
      afoot and the frisk was conducted without reasonable suspicion
      that he was armed and dangerous?

         2. Whether the trial court erred in admitting out of court
      statements allegedly made by a confidential informant, through
      the testimony of Officer Donohue, since no exceptions to the
      hearsay rule apply?

Appellant’s Brief at 5.

      We review a challenge to an order denying suppression of evidence as

follows:

             Our standard of review in addressing a challenge to the
      denial of a suppression motion is limited to determining whether
      the suppression court’s factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct. Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record as
      a whole. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court
      turns on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.




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Commonwealth v. Baker, 24 A.3d 1006, 1015 (Pa. Super. 2011) (internal

citations and quotation marks omitted). Our scope of review is limited to the

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

       Appellant argues that police did not have reasonable suspicion for their

investigative detention of Appellant because the CI’s tip lacked sufficient

indicia of reliability and because police failed to corroborate it before stopping

Appellant. Appellant’s Brief at 17-18. Appellant argues the Commonwealth

failed to establish the CI’s veracity.           Appellant also argues that Officer

Donohue’s frisk of Appellant was unlawful. Appellant bases his arguments on

a discrepancy between Officer Donohue’s preliminary hearing testimony and

his testimony at the suppression hearing.1 Specifically, Officer Donohue did

not state at the preliminary hearing that he had relied on this CI in the past.

Appellant’s argument ignores the standard of review, which requires us to

consider the Commonwealth’s evidence and only so much of Appellant’s

evidence as remains uncontradicted.

       The record supports the trial court’s findings, summarized above, that

Officer Donohue had relied on this CI on fifteen prior occasions. In Officer

Donohue’s experience, the CI’s information had proven reliable. N.T. Hearing,

8/23/16, at 13. The record also supports the trial court’s findings that Officer

Donohue found Appellant at the specified location (a high-crime area) and


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1 The preliminary hearing transcript was introduced as an exhibit during the
suppression hearing and therefore is appropriately before us under L.J.

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matching the description provided by the CI.       The CI informed police that

Appellant had contraband on his person, and Appellant reached for his pocket

and began shaking at the sight of approaching police officers. The trial court

provided a thorough analysis of its ruling in its order of October 18, 2016 and

in its opinion of July 5, 2017.2 We agree with the trial court’s conclusion that

police had reasonable suspicion in support of the stop and frisk and we reject

Appellant’s argument based on the trial court’s order and opinion.

       In his second argument, Appellant claims the trial court erred in

permitting Officer Donohue to testify about statements the CI made to him.

As the trial court correctly notes, Pennsylvania courts permit hearsay accounts

of a CI tip in order to explain a police officer’s course of conduct in conducting

their investigation. Commonwealth v. Chmiel, 889 A.2d 510, 532-33 (Pa.

2005); Commonwealth v. Estep, 17 A.3d 939, 944-46 (Pa. Super. 2011).

We reject Appellant’s second argument based on the trial court’s July 5, 2017

opinion. Further, we direct that copies of the trial court’s July 5, 2017 opinion

(with the October 18, 2016 findings of fact and conclusions of law attached as

an exhibit) be filed along with this memorandum.

       Judgment of sentence affirmed.




____________________________________________


2  The trial court attached its October 18, 2016 order, including the findings
of fact and conclusions of law, as Exhibit A to its July 5, 2017 opinion.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/12/18




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