J. S55041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DAVID JUSTIN TOSTA,                       :          No. 2595 EDA 2017
                                          :
                          Appellant       :


             Appeal from the Judgment of Sentence, June 26, 2017,
              in the Court of Common Pleas of Montgomery County
                Criminal Division at No. CP-46-CR-0004783-2016


BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED DECEMBER 24, 2018

        David Justin Tosta appeals from the judgment of sentence entered on

June 26, 2017, by the Court of Common Pleas of Montgomery County

following his conviction of possession of a controlled substance, possession

of a small amount of marijuana, and possession of drug paraphernalia.1

After careful review, we affirm.

        The trial court provided the following synopsis of the relevant facts and

procedural history:

              On April 7, 2016, [appellant] was arrested following
              a traffic stop where police recovered marijuana, in
              addition to one and a half pills of Oxycodone, in his
              car. [Appellant] was charged with possession of a
              controlled substance (misdemeanor), possession of a
              small amount of marijuana (misdemeanor), and
              possession of drug paraphernalia (misdemeanor).

1   35 P.S. §§ 780-113(a)(16), (32), and (33), respectively.
J. S55041/18



          At about 7:13 PM on April 7, 2016, Kevin Fritchman,
          an officer with the Norristown Police Department,
          received an anonymous call concerning an alleged
          drug transaction occurring at the intersection of
          Noble    and    Marshall   Streets   in   Norristown,
          Montgomery County. The caller described a black
          sedan on the southwest corner of Noble Street,
          where the caller observed “a black male wearing a
          black and red hooded sweatshirt and blue jeans”
          walk up to the car and collect money from the driver,
          later identified as [appellant]. After acquiring the
          money from [appellant], the African-American male
          entered Apartment A of 932 West Marshall Street,
          which is “directly across the street” from the black
          sedan.

          About     a   minute     after    receiving  the    call,
          Officer Fritchman reported to the scene and saw a
          black sedan matching the registration received from
          the anonymous caller. From approximately 500 feet
          away,[Footnote 2] Officer Fritchman watched as “a
          black male wearing a black and red sweatshirt”
          exited Apartment A, walked over to the black sedan,
          and      gave       “something”       to    [appellant].
          Officer Fritchman “relayed everything . . . over
          dispatch radio . . . to Officer Robinson.”

                [Footnote 2] When defense counsel
                questioned Officer Fritchman’s view of
                the     transaction,   Officer   Fritchman
                clarified that he used binoculars.

          Carl Robinson, Jr., an officer with the Norristown
          Police Department, heard Officer Fritchman’s radio
          call. Although Officer Robinson did not observe the
          transaction, he knew via radio calls that [appellant]
          engaged in a drug transaction, then drove south on
          Noble Street in his black sedan. Officer Robinson
          followed the black sedan, and “activated [his]
          emergency lights and the air horn in [an] attempt to
          conduct a vehicle stop” near the intersection of Noble
          and West Airy Streets.        After travelling about
          50 more feet, [appellant] eventually turned into an


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          alley.       Before [appellant] stopped his car,
          Officer Robinson observed him “reaching towards the
          front center console area built into the car.”
          [Appellant] then parked in a lot, and “immediately
          exited the vehicle.” [Appellant] exited his car at the
          same time Officer Robinson exited his police car. As
          [appellant] stood by the driver’s side door of his car,
          Officer Robinson stood right next to him. At that
          time, Officer Robinson saw “a clear packet of
          marijuana in the pocket of the driver’s door.”
          Officer Robinson arrested [appellant], and then
          searched the area of the car where he saw
          [appellant] reach. He found one and a half white
          pills, later identified as Oxycodone, inside a cigarette
          package in the center console of the car.

          [Appellant] chose to testify during his suppression
          hearing, and denied engaging in a drug transaction
          on April 7. Instead, [appellant] claimed he parked
          his black sedan, and waited for Juan “Ricky” Colon so
          he could “pay a debt.”          Mr. Colon resided at
          930 West Marshall Street.       On the night of the
          incident, from about 6:45 to 7:00 PM, [appellant]
          claimed Mr. Colon exited his home, entered
          [appellant’s] car, and sat in the passenger’s seat “for
          about five minutes.” [Appellant] gave Mr. Colon $20
          or $30 that Brian Horn owed Mr. Colon for cigarettes
          and drinks. After he gave money to Mr. Colon,
          [appellant] said “[he] did some text messaging . . .
          checked Facebook, [and] surfed the web.” When
          [appellant] drove away, he said Officer Robinson
          stopped him. He decided to park in a lot, and then
          exited his car to speak with Officer Robinson.
          [Appellant] claimed Officer Robinson commanded he
          “[g]et back in the car immediately.” [Appellant] said
          he complied. When he tried to close his driver’s side
          door, [appellant] said “[Officer Robinson] jammed
          his leg in” to prevent it from closing.          Then,
          [appellant]    claimed    Officer   Robinson    began
          “rummaging around” right before his arrest.

          Mr. Colon testified on [appellant’s] behalf, and
          claimed he and [appellant] planned to meet on
          April 7 so [appellant] could give him $20. Mr. Colon


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          said [appellant] parked his car across from his home
          at 930 West Marshall Street. Mr. Colon claimed he
          sat in the passenger’s seat of [appellant’s] car for
          about “three to five minutes.”

          On March 22, 2017, the [trial court held] a hearing
          on    [appellant’s]    Motion     to   Suppress,    but
          subsequently denied it. First, the [trial court] found
          that reasonable suspicion existed for officers to
          conduct an investigatory stop because the totality of
          the circumstances revealed: (1) Officers Fritchman
          and Robinson had drug arrest experience; (2) the
          anonymous caller described the make and color of
          [appellant’s] car, reported the car’s location, and
          distinguished       the      individuals      involved;
          (3) Officer Fritchman’s observations at the scene;
          and ([4]) the Norristown Borough, where the
          transaction occurred, was a “drug trafficking area.”
          Second, the [trial court] found that Officer Robinson
          had authority to seize [appellant’s] marijuana from
          his car because he saw marijuana in plain view,
          placed in an open compartment on the driver’s side
          door. Police officers had authority to further search
          [appellant’s] car, and seize one and a half
          Oxycodone pills without a warrant, because probable
          cause     existed    under    the    totality  of   the
          circumstances, where police officers previously had
          reasonable suspicion to investigate and already
          viewed marijuana in plain view.

          Later, on March 22, [2017, appellant] waived his
          right to a jury trial and proceeded with a bench trial.
          The parties stipulated to incorporating testimony
          from the suppression hearing into the trial record.
          The [trial court] ultimately found [appellant] guilty of
          possession of a controlled substance, possession of a
          small amount of marijuana, and possession of drug
          paraphernalia.

          The [trial court] sentenced [appellant] on June 26,
          2017. For possession of a controlled substance, the
          [trial court] sentenced [appellant] to 12 months of
          probation with Montgomery County Adult Probation
          and required him to pay the cost of prosecution in


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            addition to a $500 fine. For possession of a small
            amount of marijuana, the [trial court] sentenced
            [appellant] to one month probation and required him
            to pay the cost of prosecution with no additional fine.
            For possession of drug paraphernalia, the [trial
            court] sentenced [appellant] to six months of
            probation and required him to pay the cost of
            prosecution with no additional fine. The sentences
            imposed for possession of a small amount of
            marijuana and possession of drug paraphernalia run
            concurrent with [appellant’s] sentence for possession
            of a controlled substance. Additionally, the [trial
            court] sentenced [appellant] to complete an
            outpatient program for substance abuse and required
            him to complete 40 hours of community service
            within one year. Concerning probation, [appellant]
            must adhere to special conditions of probation and
            pay the monthly offender supervision fee.[2]

            [Appellant] filed a notice of direct appeal on
            August 7,     2017.[3]        Pursuant     to    a
            [Pa.R.A.P.] 1925(b) order, [appellant] submitted a
            concise statement of [errors] complained of on
            appeal[.]

Trial court opinion, 11/1/17 at 1-5 (citations to record omitted; additional

footnotes omitted).

      Appellant raises the following issues for our review:

            1.    Did [the t]rial [c]ourt abuse its discretion in
                  not suppressing evidence?

            2.    Did the Commonwealth’s inconsistent and
                  conflicting evidence corroborate an anonymous


2 Appellant filed post-sentence motions on July 6, 2017.       The trial court
denied appellant’s post-sentence motions on July 7, 2017.

3 August 5, 2017, fell on a Saturday. Accordingly, the final day for appellant
to timely file a notice of appeal was the following business day, Monday,
August 7, 2017. See 1 Pa.C.S.A. § 1908.


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                   tip justifying seizure of [appellant] and/or a
                   lawful finding of contraband?

Appellant’s brief at vi.

      When addressing an appeal of a trial court’s denial of a motion to

suppress evidence, we are held to the following standard:

             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 . . .
             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.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v.

Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d

68 (Pa. 2012) (citations omitted).

             Fourth Amendment jurisprudence has led to the
             development of three categories of interactions
             between citizens and the police. The first of these is
             a “mere encounter” (or request for information)
             which need not be supported by any level of


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            suspicion, but carries no official compulsion to stop
            or to respond. The second, an “investigative
            detention” must be supported by a reasonable
            suspicion; 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. Finally, an arrest or
            “custodial detention” must be supported by probable
            cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations

omitted).

     “The appellate courts have mandated that law enforcement officers,

prior to subjecting a citizen to an investigatory detention, must harbor at

least a reasonable suspicion that the person seized is then engaged in

unlawful activity.”   Commonwealth v. Barber, 889 A.2d 587, 593

(Pa.Super. 2005) (citation omitted).      “Reasonable suspicion is a less

demanding standard than probable cause because it can be established by

information that is different in quantity and quality than that required for

probable cause; it can arise from information that is less reliable than that

required to show probable cause.” Commonwealth v. Emeigh, 905 A.2d

995, 998 (Pa.Super. 2006) (citation omitted).

            To meet the standard of reasonable suspicion, “the
            officer must point to specific and articulable facts
            which, together with the rational inferences
            therefrom, reasonably warrant the intrusion.       In
            ascertaining the existence of reasonable suspicion,
            we must look to the totality of the circumstances to
            determine whether the officer had reasonable
            suspicion that criminal activity was afoot.” Barber,
            supra at 593 (citations and quotations omitted).
            Further, “police officers need not personally observe


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           the illegal or suspicious conduct, but may rely upon
           the information of third parties, including ‘tips’ from
           citizens.” Id.

Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).

     In cases where the police act as a result of an anonymous tip, we have

required additional corroborating evidence.

           While a tip can be a factor, an anonymous tip alone
           is insufficient as a basis for reasonable suspicion.
           [Commonwealth v.] Wimbush, 750 A.2d [807,]
           811 [(Pa. 2000)]; [Commonwealth v.] Jackson,
           698 A.2d [871,] 572 [(Pa. 1997)]. Such anonymous
           tips must be treated with particular suspicion.
           Jackson, 698 A.2d at 573. Likewise, presence in a
           high crime area alone or flight alone does not form
           the basis of reasonable suspicion. Commonwealth
           v. Cook, [] 735 A.2d 673, 677 (Pa. 1999).
           However, a combination of these factors may be
           sufficient. See [Commonwealth v.] Zhahir, 751
           A.2d [1153,] 1157 [(Pa. 2000)] (noting that
           suspicious conduct corroborates an anonymous tip);
           Cook, 735 A.2d at 677 (stating that circumstances
           which alone would be insufficient may combine to
           show reasonable suspicion); []; [Commonwealth
           v.] Pizzaro, 723 A.2d [675,] 680 [(Pa.Super. 1998)]
           (finding that flight along with presence in heavy
           drug-trafficking area may demonstrate reasonable
           suspicion). . . . Terry [v. Ohio], 392 U.S. [1,] 22
           [(1968)] (innocent facts, when taken together, may
           warrant further investigation); Commonwealth v.
           Riley, 715 A.2d 1131, 1135 (Pa.Super. 1998) (“a
           combination of circumstances, none of which alone
           would justify a stop, may be sufficient to achieve a
           reasonable suspicion”).

Commonwealth v. Leonard, 951 A.2d 393, 396-397 (Pa.Super. 2008),

quoting In the Interest of M.D., 781 A.2d 192, 196-197 (Pa.Super. 2001).




                                    -8-
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      Here, the record supports the trial court’s conclusion that the police

were able to independently corroborate the information received from the

anonymous tip.     Specifically, the record reflects that the anonymous tip

included a description of the individuals involved, a description of the vehicle

occupied by appellant, and an accurate recitation of the vehicle’s license

plate number. (Notes of testimony, 3/22/17 at 8-9.) The anonymous caller

also described a transaction in which an individual wearing a black and red

hoodie approached the driver’s side of appellant’s vehicle, accepted money

from the driver of the vehicle, and then went into apartment A at 932 West

Marshall Street.    (Id. at 7.)    Through his testimony, Officer Fritchman

independently corroborated the information received from the anonymous

caller upon his arrival to the scene:

            I observed the black sedan bearing the same
            registration [plate] that the anonymous caller
            provided.     I’m not sure of what that actual
            registration plate is right now. I observed a white
            male sitting inside the driver’s seat. I then went a
            block up and I sat there. And then I observed a
            black male wearing a black and red sweatshirt walk
            out of 932 [West Marshall Street] and approached
            the male in the driver’s seat, handed him something,
            and then turned around and walked back into his
            house.

Id. at 9. Officer Fritchman further testified that based on his training and

experience, he believed that a drug transaction had just occurred. (Id.)

      Accordingly, we find that the suppression court did not abuse its

discretion when it denied appellant’s motion to suppress.           The record



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demonstrates that the information provided by the anonymous caller was

independently corroborated by the police and that the police had the

requisite reasonable suspicion in order to conduct an investigatory detention.

Therefore, the record supports the trial court’s factual findings and the legal

conclusions drawn from those facts are correct. Accordingly, appellant’s first

issue is without merit.

      Appellant next argues that the trial court erred by “rely[ing] on

credibility where conflicting testimony causes it to base an opinion on

speculation or conjecture or a guess in [an] underlying criminal matter.”

(Appellant’s brief at 11.)      To bolster this argument, appellant cites

Commonwealth v. Bennett, 303 A.2d 220 (Pa.Super. 1973).                    The

Bennett court held that “[w]hen the testimony is so contradictory on the

basic issues as to make any verdict based thereon pure conjecture the jury

should not be permitted to consider it.”       Id. at 221 (citation omitted,

emphasis added).    We find Bennett to be inapposite when applied to the

present case.

      As noted above, when considering whether to grant a motion to

suppress evidence, credibility determinations are within the exclusive

purview of the trial court.   Commonwealth v. Yorgey, 188 A.3d 1190,

1198 (Pa.Super. 2018), citing Commonwealth v. McCoy, 154 A.3d 813,

815-816 (Pa.Super. 2017).      Here, the trial court found the testimony of

Officers Fritchman and Robinson to be credible.         (Trial court opinion,



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11/1/17 at 14.) Moreover, the trial court explicitly stated that it did not find

appellant’s testimony, nor the testimony of appellant’s witness to be

credible.   (Id.)   The record before us contains ample basis for such a

determination. Accordingly, we are not permitted to disturb the trial court’s

credibility determinations, and appellant’s second issue is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 12/24/18




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