J-S53005-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,           : IN THE SUPERIOR COURT OF
                                        :      PENNSYLVANIA
                 Appellee               :
                                        :
           v.                           :
                                        :
DEVIN NATHANIEL BYES-SANDERS,           :
                                        :
                 Appellant              : No. 1544 WDA 2013

          Appeal from the Judgment of Sentence August 29, 2013,
                    Court of Common Pleas, Erie County,
            Criminal Division at No. CP-25-CR-00002258-2012

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED AUGUST 21, 2014

     Devin Nathaniel Byes-Sanders (“Byes-Sanders”) appeals from the

August 29, 2013 judgment of sentence entered by the Erie County Court of

Common Pleas. Specifically, Byes-Sanders challenges the trial court’s denial

of his motion to suppress. Upon review, we affirm.

     The trial court summarized the testimony from the suppression

hearing as follows:

           The Commonwealth presented the testimony of
           Lieutenant Michael Nolan, City of Erie Police. Nolan
           has been with the City of Erie Police for twenty (20)
           years and the lieutenant in charge of the Drug and
           Vice Unit for approximately ten (10) years.

           On March 8, 2012, a search warrant for evidence of
           drug dealing was obtained for the residence of
           Ernesto Perez Jefferson and his wife, Jessica Perez,
           at 829 West Tenth Street, Erie, Pennsylvania.




*Retired Senior Judge assigned to the Superior Court.
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          The search warrant on the Perez residence was
          executed the same day. Approximately five ounces
          of cocaine and $15,000.00 in cash were recovered
          from Perez’s residence. Ernesto Perez was arrested
          and transported to the police station where he
          agreed to speak with Nolan and Detective Fisher.

          Perez    confessed    to  Nolan    the   $15,000.00
          represented proceeds from drug sales. He told the
          police the cocaine belonged to him and was for sale.

          Perez agreed to cooperate with the police by
          completing a drug deal that was to occur later that
          day with his supplier. Perez told Nolan his supplier
          was Jarron Jackson. Perez told Nolan a person
          named ‘Dev’ was Jackson’s middleman for the
          delivery of the drugs. Perez told Nolan he never met
          Jackson and his only contacts with him were by
          telephone. Perez told Nolan he previously met with
          ‘Dev’ in his capacity as the runner for Jackson.

          Perez told Nolan the $15,000.00 seized from his
          residence earlier in the day was to be paid to
          Jackson through ‘Dev’ for a half-kilo of cocaine that
          was due for delivery later that day. Nolan testified
          the $15,000.00 was bundled in thousand dollar
          quantities, folded over and rubber-banded, which
          was typical of drug transactions involving large sums
          of money.

          Perez related the drug deal would include a
          telephone call between Perez and Jackson to
          coordinate payment and delivery of the drugs. Perez
          told Nolan this was typical for drug transactions with
          Jackson.

          Perez described for Nolan other typical features of
          drug transactions involving Jackson and ‘Dev’. The
          majority of the drug transactions occurred at Perez's
          residence on 10th Street. ‘Dev’ typically arrived in a
          black Expedition SUV with a loud, thumping stereo.
          ‘Dev’ typically came to the back door of Perez’s
          residence. Perez normally paid ‘Dev’ in cash.



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          Perez described ‘Dev’ as a tall, thin, black male in his
          twenties with dreadlocks.

          Perez advised that ‘Dev’ and Jackson changed their
          phone numbers every couple of weeks. Perez gave
          Nolan the most recent telephone number he had for
          ‘Dev’.

          Nolan testified Jackson was a well-known dealer of
          cocaine and crack cocaine.

          Nolan researched Jackson’s associates on the Erie
          Police Department records management system. In
          doing so, he came across [Byes-Sanders’] name as a
          known associate of Jackson.

          At the police station and in Nolan’s presence, Perez
          received a phone call from Jackson. Perez and
          Jackson discussed an imminent drug deal. Nolan
          assembled a team and returned to Perez's residence
          at approximately 5:30 p.m.

          While Perez remained behind at the police station,
          Perez had multiple phone conversations with Jackson
          and ‘Dev’ concerning the drug transaction that was
          to occur. Detective Fisher relayed information about
          the calls to Nolan via two-way radio.

          At 7:10 p.m., while Nolan was waiting at Perez’s
          residence with the team of officers, a black
          Expedition SUV pulled up and parked outside Perez’s
          residence. Within a few seconds, Nolan received
          contact from Detective Fisher that Perez had just
          received either a phone call or text message from
          ‘Dev’ saying, ‘I'm here.’ From inside Perez’s
          residence, Nolan observed [Byes-Sanders] exit the
          black Expedition and walk toward the residence.
          Nolan determined that [Byes-Sanders] matched the
          Perez’s [sic] description of ‘Dev’. Nolan determined
          [Byes-Sanders’] vehicle matched Perez’s description
          of ‘Dev’s’ vehicle. [Byes-Sanders] was alone. [Byes-
          Sanders] walked to the back door of Perez’s



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            residence. [Byes-Sanders] knocked or rang the door
            bell [sic].

            Nolan waited approximately 20 seconds and opened
            the door. Nolan and the two officers inside Perez’s
            residence had their weapons drawn. [Byes-Sanders]
            was ordered to show his hands and get down. From
            the officer’s perspective, [Byes-Sanders] was under
            arrest at this time. [Byes-Sanders] did not comply,
            but took steps backwards. Nolan reached out and
            restrained [Byes-Sanders] by the arm.

            While restraining [Byes-Sanders], Nolan felt a very
            hard bulge in the left sleeve of [Byes-Sanders’] coat.
            Nolan placed [Byes-Sanders] on the ground and
            retrieved from [Byes-Sanders’] left sleeve multiple
            bags of compressed cocaine. Recovered from [Byes-
            Sanders’] pocket was a large quantity of eight balls
            of crack cocaine, bagged individually and contained
            within a larger bag.

            Perez identified [Byes-Sanders] as ‘Dev’ at the Erie
            Police station after [Byes-Sanders’] arrest.

Trial Court Opinion, 10/24/13, at 2-5 (record citations and footnote

omitted).

     Byes-Sanders filed a motion to suppress asserting, inter alia, that the

police obtained the evidence by virtue of an arrest made without probable

cause. The trial court held a hearing on January 7, 2013, and denied the

motion on February 28, 2013.

     The case proceeded to a bench trial on June 25, 2013, and the trial

court convicted him of possession of a controlled substance, possession of a

controlled substance with intent to deliver, and possession of drug




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paraphernalia.1 On August 29, 2013, the trial court sentenced Byes-Sanders

to an aggregate term of 48 to 96 months of incarceration followed by six

months of probation.

       Byes-Sanders filed a timely notice of appeal. He raises one issue for

our review:

              Whether or not the lower court erred in holding that
              the City of Erie vice unit had probable cause to arrest
              [Byes-Sanders] on March 8, 2012 when [Byes-
              Sanders] approached the residence at 829 West 10th
              Street, Erie, Pennsylvania at approximately 7:10
              p.m. in a black Expedition, and after knocking at the
              door was greeted with three guns in his face by Erie
              City Police Officers and was forcibly pulled into the
              residence by Lieutenant Nolan, at which time
              Lieutenant Nolan felt a hard object in [Byes-
              Sanders’] coat sleeve, and removed the object
              pursuant to a search of [Byes-Sanders] incident to
              his arrest?

Byes-Sanders’ Brief at 3.

       “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.”           Commonwealth v.

Thompson, 93 A.3d 478, 484 (Pa. Super. 2014) (citation omitted). We are

not bound by the trial court’s legal conclusions, but must apply the law to

the supported facts found by the trial court.           Id.    The trial court’s

conclusions of law are subject to our plenary review. Id.


1
    35 P.S. § 780-113(a)(16), (30), (32).


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     The trial court found that the police had probable cause to arrest Byes-

Sanders for possession of a controlled substance with intent to deliver, a

felony, when he arrived at Perez Jefferson’s house.     Trial Court Opinion,

10/24/13, at 6.    It reached this conclusion based upon the following

testimony provided by Lieutenant Nolan:

  • Perez Jefferson was a known drug dealer;

  • police recovered five ounces of cocaine and $15,000 from Perez
    Jefferson, which money he stated was to be used in a cocaine
    purchase later that day with an intermediary known as “Dev”;

  • the money was bundled in a way that Lieutenant Nolan knew to be
    consistent with drug transactions; $15,000 was the appropriate cost
    for the amount of drugs Perez Jefferson was to purchase;

  • Perez Jefferson received a call from Jackson while at the police station
    that the drug deal was “imminent”;

  • Byes-Sanders arrived at Perez Jefferson’s house in the vehicle Perez
    Jefferson described as belonging to “Dev”;

  • within seconds of Byes-Sanders arriving at the            house,   “Dev”
    communicated with Perez Jefferson saying “I’m here”;

  • Byes-Sanders fit the description of “Dev” provided by Perez Jefferson;
    and

  • Byes-Sanders came to the back door of the house to effectuate the
    drug transaction, as Perez Jefferson said he would.

Id. at 6-7. Pursuant to its conclusion that the search was incident to Byes-

Sanders’ proper arrest, the trial court found that suppression was not

warranted.




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      Byes-Sanders asserts that this was insufficient to give rise to a finding

of probable cause to arrest him because (1) Lieutenant Nolan testified that

he was not certain that it was “Dev” at the door; (2) Perez Jefferson said

“Dev” would arrive with the stereo “thumping,” and Lieutenant did not know

if that was the case when Byes-Sanders arrived; and (3) Byes-Sanders did

not have anything to carry the ½ kilo of cocaine, all of which distinguish this

case from Commonwealth v. Guzman, 612 A.2d 524 (Pa. Super. 1992),

abrogated on other grounds by Commonwealth v. Bell, 645 A.2d 211 (Pa.

1994). Byes-Sanders’ Brief at 13-14.

      Police are empowered to arrest a suspect without a warrant, inter alia,

if the officer has probable cause that the suspect has committed a felony.

Pa.R.Crim.P. 502(2)(b).

            Probable cause is made out when the facts and
            circumstances which are within the knowledge of the
            officer at the time of the arrest, and of which he has
            reasonably trustworthy information, are sufficient to
            warrant a man of reasonable caution in the belief
            that the suspect has committed or is committing a
            crime. The question we ask is not whether the
            officer's belief was correct or more likely true than
            false. Rather, we require only a probability, and not
            a prima facie showing, of criminal activity. In
            determining whether probable cause exists, we apply
            a totality of the circumstances test.

Commonwealth v. Thompson, 985 A.2d 928, 931 (Pa. 2009) (internal

citations, quotations, and emphasis omitted).

            [A] warrantless search incident to a lawful arrest is
            reasonable, and no justification other than that



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           required for the arrest itself is necessary to conduct
           such a search. Stated another way, in all cases of
           lawful arrests, police may fully search the person
           incident to the arrest. Consequently, any evidence
           seized as a result of a search incident to a lawful
           arrest is admissible in later proceedings.

Commonwealth v. Ingram, 814 A.2d 264, 272 (Pa. Super. 2002) (internal

citations and emphasis omitted).

     In Guzman, the police discovered cocaine while executing a search

warrant at an apartment.      Upon his arrest, the apartment’s resident

arranged for the delivery of two kilos of cocaine to his apartment, and

described the person who would be coming to the apartment and the vehicle

in which he would arrive. Guzman, 612 A.2d at 525.

     The defendant came to the apartment in the described vehicle and he

physically matched the description provided. He was also carrying a satchel

large enough to carry two kilos of cocaine. When the defendant knocked on

the apartment door, police arrested him immediately, searched the satchel

and unwrapped the packages contained therein, revealing over two kilos of

cocaine. Id.

     Based upon the totality of the circumstances, including that the

defendant arrived in the vehicle described, matched the description

provided, and was carrying a bag large enough to carry the amount of

cocaine expected, this Court affirmed the trial court’s denial of the




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defendant’s motion to suppress, as there was probable cause to support his

warrantless arrest. Id. at 526.

     Turning to the case at bar, we are unmoved by the points made by

Byes-Sanders in an attempt to distinguish this case from Guzman. First, we

note that Byes-Sanders’ claim that Lieutenant Nolan was not certain that the

person at the door was “Dev” is inaccurate. Rather, the record reflects that

Lieutenant Nolan testified that when Byes-Sanders came to the door he was

unsure that it was in fact Byes-Sanders. N.T., 1/7/13, at 32. Lieutenant

Nolan never expressed any doubt that the person knocking on the door was

“Dev,” whom he knew would be bringing ½ kilo of cocaine. It is irrelevant

for probable cause purposes whether the police knew the specific identity of

the individual who brought the cocaine prior to effectuating the arrest –

probable cause to arrest is based upon knowledge that the person at the

door, regardless of his name, is committing a crime. Thompson, 985 A.2d

at 931.

     Furthermore, Lieutenant Nolan’s inability to recall whether the stereo

was “thumping” when Byes-Sanders arrived as Perez Jefferson said was the

case with “Dev” in the past and the absence of a satchel or bag to carry the

cocaine does not negate a finding of probable cause.    The record reflects

that police recovered $15,000 during the search of the home of Perez

Jefferson, a known drug dealer, which was bundled in a manner consistent

with drug purchases. N.T., 1/7/13, at 6, 12-13. Perez Jefferson stated that



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the money was going to be used to purchase ½ kilo of cocaine, which would

be brought to his house later that day by an intermediary known as “Dev.”

Id. at 9, 11, 12.   The street value of ½ kilo of cocaine is approximately

$15,000. Id. at 15. He received a call while at the police station, indicating

that the drug transaction was “imminent.” Id. at 19, 20, 23. Byes-Sanders

arrived at the house in the vehicle described, matched the description

provided, and went to the back door of the house, as Perez Jefferson said he

would. Id. at 13-14, 15, 28, 29. At the same time Byes-Sanders arrived at

the house, Perez Jefferson received a communication from “Dev” which said,

“I’m here.” Id. at 29.

      Applying the totality of the circumstances test, we agree with the trial

court that the evidence presented supported Lieutenant Nolan’s belief that

Byes-Sanders was committing a felony, to wit, possession of a controlled

substance with intent to deliver. See Thompson, 985 A.2d at 931. Thus,

the cocaine discovered on Byes-Sanders’ person, recovered during the

search incident to his arrest, was properly admitted. See Ingram, 814 A.2d

at 272.

      The record supports the trial court’s findings of fact and the legal

conclusions drawn therefrom are correct. See Thompson, 93 A.3d at 484.

We therefore affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2014




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