J-S59031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                         IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellant

                       v.

FRANK ROSCOE,

                            Appellee                  No. 751 EDA 2014


                Appeal from the Order entered February 7, 2014
              in the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007071-2013

BEFORE: SHOGAN, LAZARUS, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED SEPTEMBER 26, 2014

       The Commonwealth of Pennsylvania (Commonwealth) appeals from

the February 7, 2014 order which granted the motion to suppress filed by

defendant Frank Roscoe (Roscoe).               We reverse and remand for further

proceedings consistent with this memorandum.

       The trial court summarized the facts of the case as follows.

             On April 25, 2013, at 9:15 p.m., Officer Matthew York,
       assigned to the South Gang Task Force, was on duty with his
       partner, Officer Mergiotti, patrolling the area of 1900-2000
       Gerritt Street in Philadelphia in a marked patrol vehicle when he
       observed [Roscoe] and an unidentified black male engaged in a

       (150) feet away. Officer York, who testified that he had been a
       police officer for three and one-half years and had participated in
       hundreds of narcotics arrests, approached [Roscoe] with his
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S59031-14


     partner. As they did so, Officer York saw [Roscoe] reach into his
     pants in the groin area and remove a small, black, opaque
     plastic bag from it. Officer York then observed [Roscoe] reach
     into the bag and[,] using his thumb and forefingers, he appeared
     to pull small objects out of it. At the time, the other male was
     holding U.S. currency.

           Officer York conceded that he did not see a small object,

     forefinger, that there were small objects in the bag. Officer York
     further admitted that he observed nothing being passed between
     [Roscoe] and th


           Officer York further testified that at some point both men

     turned, and walked away. When they did so, Officer York saw
     [Roscoe] stuff the black bag down his pants and head westbound
     on the 2000 block of Gerritt. The other male crossed the street
     and continued down the 2000 block of Gerritt with a five dollar
     bill in his hand.

           Officer York explained that he stopped [Roscoe] at this
     time ba
     surveillance, and because of where he stuffed the black plastic


     experienced with how narcotics are packaged and sold. When
     questioned on the reason for his belief that a narcotics
     transaction was occurring, Officer York stated:

           The fact that - how he was holding the objects,

           place for people to hide the narcotics because

           male had [a] $5 bill in his hand and they were in
           close conversation. And in addition to that, the
           reaction to when they noticed us, the police, as we
           approached. Both of them quickly turned and tried
           to walk away as he concealed the item in his groin
           area.

          After Officer York stopped [Roscoe], he searched him and
     recovered the plastic bag from [his] groin area which, upon

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       inspection, was found to contain fifteen small purple Ziploc
       baggies containing what testing later revealed to be crack-
       cocaine and one small plastic bag containing several new and
       unused purple Ziploc baggies. A razor blade and ninety dollars
                                                              t. All
       recovered items were placed on a property receipt.

Suppression Court Opinion, 6/2/2014, at 2-4 (footnote and citations to the

record omitted). Roscoe moved to suppress the recovered evidence. After

a hearing, the suppression court granted the motion.         The Commonwealth

timely filed a notice of appeal1 and a statement of errors complained of on

appeal.




hundreds of narcotics arrests, recognized a probable drug transaction




3.

                                                 tion mindful of the following.

       When the Commonwealth appeals from a suppression order, this
       Court follows a clearly defined scope and standard of review.

       together with the evidence of the prosecution that, when read in
       the context of the entire record, remains uncontradicted. This
       Court must first determine whether the record supports the
       factual findings of the suppression court and then determine the
____________________________________________


1
 The Commonwealth has certified that the suppression order substantially
handicaps the prosecution, making this an interlocutory appeal as of right
under Pa.R.A.P. 311(d).



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     reasonableness of the inferences and legal conclusions drawn
     from those findings. In appeals where there is no meaningful
     dispute of fact, as in the case sub judice, our duty is to
     determine whether the suppression court properly applied the
     law to the facts of the case.

Commonwealth v. Gorbea-Lespier, 66 A.3d 382, 385-86 (Pa. Super.

2013) (quoting Commonwealth v. Arthur, 62 A.3d 424, 427 (Pa. Super.

2013)) (internal quotation marks and citations omitted).

     Here, the facts are not in dispute, as only one witness (Officer York)

testified at the suppression hearing, and the suppression court found his

testimony credible.   See




after Roscoe was arrested and searched incident to that arrest, rendering

probable cause the required constitutional standard. See



     Thus we are presented solely with the legal question of whether the

facts recited by the trial court, quoted above, give rise to probable cause.

Narrowing   the   issue   further,   the   Commonwealth,   Roscoe,   and   the



decision in Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009).

     In Thompson, the Court summarized the facts at issue as follows.

           On January 21, 2005, in the evening, Philadelphia Police
     Officer Orlando Ortiz was on duty in the 2400 block of Leithgow
     Street. Officer Ortiz knew the neighborhood as a high crime
     area in which narcotics, and specifically heroin, regularly were

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     sold.     The area was designated by the Philadelphia Police

     Officer Ortiz, a nine-year veteran of the police force, and       his
     partner, Officer Correa, were in plainclothes and driving         an
     unmarked vehicle.     Officer Ortiz saw a car parked by          the
     sidewalk and observed Appellant standing in the street by        the

     male driver some money and saw the driver give Appellant a
     small object in return. Based on what he saw on the street and
     what he knew, including the fact that he had made several
     hundred narcotics arrests of this very type, Officer Ortiz believed
     the men were engaged in a drug transaction. Officer Ortiz
     stopped Appellant and recovered from his pocket a packet of
     heroin.

Id. at 930. The Court then examined relevant precedent.

           In [Commonwealth v. Lawson, 309 A.2d 391 (Pa.
     1973)], police observed the appellant as he stood on the street
     and received currency from individuals to whom he handed small
     objects that he retrieved from his wife. After observing three
     such transactions, police arrested the couple, who ultimately
     faced conspiracy and narcotics sales charges. In response to a
     claim that police lacked probable cause to arrest, the Lawson

                               Lawson Court concluded that those
     circumstances amply supported probable cause.

             The time is important; the street location is
             important; the use of a street for commercial
             transactions is important; the number of such
             transactions is important; the place where the small
             items were kept by one of the sellers is important;
             the movements and manners of the parties are
             important. Considering the facts and circumstances
             in their totality, we conclude that the officers acted
             as prudent men in believing that some type of
             contraband was being sold.

           In [Commonwealth v. Banks, 658 A.2d 752 (Pa. 1995)],
     decided over twenty years after Lawson, this Court considered

     isolated exchange of some currency for some unidentified item


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      sufficient to establish probable cause where the suspect also fled
      from police. The Banks Court held that such circumstances fell
                                                        Banks opinion
      gave few details on the specific circumstances of that case, the
                                                                ing rise

      where a trained narcotics officer observed either drugs or
      containers commonly known to hold drugs ... a case where the
      police observed multiple, complex, suspicious transactions ...
      [or] a case in which the police officer was responding to a


             [Commonwealth v. Dunlap, 941 A.2d 671 (Pa. 2007),]
                                                            -the-street
      drug trade. In Dunlap, Philadelphia Police Officer Devlin, a five-
      year veteran of the police force and a nine-month member of the
      drug strike force, observed the suspect on a Philadelphia street.
      Officer Devlin, who had previously conducted about fifteen to
      twenty narcotics arrests in the area, testified that the


      engaged in a brief conversation with another man to whom he
      handed money and from whom he received small objects in
      return. Based on his experience and beliefs, Officer Devlin
      concluded that he had witnessed a drug transaction and so he

      drug charges and, ultimately, a pre-trial motion to suppress the
      evidence based on lack of probable cause.

Id. at 932-34 (footnote and internal citations omitted).

      The Thompson Court thoroughly examined the determinations of the

suppression court and Superior Court that the evidence was sufficient to

establish probable case, as well as the majority and concurring opinions of

the Pennsylvania Supreme Court that Officer Devlin lacked probable cause to

believe that Dunlap had committed a crime.         The disagreement in the

Supreme Court was over whether police training and experience was to be

considered as a factor in the probable-cause analysis. The Thompson Court

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then adopted the co



Id. at 935 (quoting Dunlap, 941 A.2d at 679 (Saylor, J., concurring).). The

Court offered its holding with the following proviso:



      an explanation of their specific application to the circumstances
                          Dunlap majority itself observed
      cannot simply conclude that probable cause existed based upon
      nothing more than the number of years an officer has spent on
      the force.   Rather, the officer must demonstrate a nexus
      between his experience and the search, arrest, or seizure of
      evi


Id. at 935 (internal citations omitted).

      Applying this law to the facts of the case before it, the Thompson

Court held as follows.

      The evidence at the suppression hearing established that Officer
      Ortiz was a nine-year veteran of the police force who was on
      undercover patrol in a high crime area that had been designated
      by the Philadelphia Police Department as an Operation Safe
      Streets neighborhood. In addition to this designation by the
      department, Officer Ortiz was personally familiar with heroin
      sales activity in the neighborhood, heroin packaging, and hand-
      to-hand drug exchanges on the street. In drawing a nexus
      between his experience and the observation he made, Officer


      hundred narcotics arrests of this very type.


      experience may be fairly regarded as a relevant factor in
      determining probable cause, and due to the presence of

      was witnessing a drug transaction, we find no error in the
                                    probable cause was present in

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     this case. We do not base our decision solely on Officer Ortiz's
     experience and the connection he articulated between that
     experience and what he observed. We also rely on the fact that
     the transaction at issue occurred in the nighttime hours, on the
     street, in a neighborhood that the police department selected for


Id. at 936-37 (footnotes omitted).

     Turning to the instant appeal, Roscoe and the suppression court are of

the position this case is materially distinguishable from Thompson,

requiring the opposite result (i.e.

Suppression Court Opinion, 6/2/2014, at 7.     Specifically, the suppression

court noted that Officer York did not witness a completed transaction; there

was no evidence that Roscoe was observed in a high-crime area; Officer

York had fewer years of experience than the officer in Thompson; and

Officer York did not state how many of the hundreds of drug transactions he

has observed wer

instant case. Suppression Court Opinion, 6/2/2014, at 7-9.

     Conversely, the Commonwealth argues that, as in Thompson, an

examination of the totality of the circumstances warrants the conclusion that

Officer York had sufficient information to conclude reasonably that there was



at 11, 14.    It claims that the suppression court erred in evaluating each

aspect of the evidence piecemeal rather than considering it as a whole. Id.

at 6. We agree with the Commonwealth.




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     An officer has probable cause to make a warrantless arrest when

     and of which the officer has reasonably trustworthy information
     are sufficient in themselves to warrant a person of reasonable
     caution in the belief that an offense has been committed by the
     person to be arrested. Probable cause justifying a warrantless
     arrest is determined by the totality of the circumstances....
     Furthermore, probable cause does not involve certainties, but
     rather the factual and practical considerations of everyday life on
     which reasonable and prudent persons act.

Commonwealth v. Simmen, 58 A.3d 811, 817 (Pa. Super. 2012) (citations



arrest exists when criminality is one reasonable inference; it need not be

                                               Commonwealth v. Romero,

673 A.2d 374, 377 (Pa. Super. 1996) (emphasis in original).




Roscoe removed a bag from the groin area of his pants, and reached into

that bag to pluck out an item while the other man moved to pass money to

Roscoe. Id. at 7. When they saw a police car approaching, Roscoe stuffed

the bag back down the front of his pants and the two men scattered. Id. at

                                 ining and experience in making several

hundred narcotics arrests had given him knowledge of how drugs are

packaged and sold, and that dealers often hide narcotics inside their pants

near the genitals, rather than in a more conventional storage area such as

                                                                  Id. at 7-8.




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turned and tried to walk away as [Roscoe] concealed the item in his groin



attempt to sell illegal narcotics. Id. at 8.



which he had been about to sell is certainly one reasonable inference made

from the totality of the circumstances, if not the most reasonable inference.

The transaction at issue was of an item collected from a bag that had just



street, in a secretive fashion, and was abruptly halted as soon as the men

saw the police. Although Officer York obviously did not know for certain that

Roscoe had attempted to sell narcotics, certainty is not required. The factual

distinctions from Thompson are not material; under Lawson and its

progeny, Officer York was reasonably prudent in believing that Roscoe

possessed drugs.

      Order reversed.     Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

      Judge Shogan joins the memorandum.

      Judge Lazarus files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/26/2014




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