J-S15037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DARELL LEE HOLMES

                            Appellant                No. 964 MDA 2014


              Appeal from the Judgment of Sentence May 9, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0006826-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED MARCH 09, 2015

        Appellant Darell Lee Holmes appeals from the judgment of sentence

entered in the York County Court of Common Pleas. We affirm.

        On September 4, 2013, police officers arrested Holmes.        He was

charged with two counts of delivery of cocaine1 and one count of possession

with intent to deliver (“PWID”) cocaine.2      Following Holmes’s arrest, the

police officers submitted an application for a search warrant for 139 Silver

Spur Dr., Apt. 1, York, PA (“the residence”), which the magisterial district

judge approved.         Police officers then searched the residence, finding

evidence of criminal activity, including cocaine and $5,000.00 in cash.

____________________________________________


1
    35 Pa.C.S. § 780-113(a)(30).
2
    35 Pa.C.S. § 780-113(a)(30).
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      On November 18, 2013, Holmes filed an omnibus pretrial motion

seeking   suppression   of   evidence   obtained    following   his   arrest   and

suppression of evidence obtained during the search of his residence.           On

December 19, 2013, the trial court held a hearing.         At the hearing, the

parties agreed that the affidavit of probable cause attached to the

application for a search warrant accurately set forth the relevant facts. N.T.,

12/19/2013, at 2, 3-4, 6. The affidavit provides:

          At the end of August, 2013 I was in contact with a
          confidential informant (CI) that could purchase cocaine
          from an unwitting drug dealer in the area of Market St.
          and Frysville Rd. in Hellam, Pa 17406. Under my direction,
          the CI arranged to purchase an amount of cocaine from
          the unwitting drug dealer in that area. The CI and his/her
          vehicle were searched for contraband with negative
          results.    The police followed the CI to the arranged
          meeting location. Police viewed the unwitting drug dealer
          meet with the CI. The unwitting drug dealer told the CI
          that his main dealer was bringing the cocaine to the
          meeting location and would be there shortly.           The
          unwitting drug dealer said that his main dealer lives
          nearby near the McDonalds. After a few minutes, a dark
          purple/blue Acura SUV bearing PA registration JHP1948
          arrived at the meeting location. A black male was driving
          the vehicle. The CI provided the unwitting drug dealer with
          official funds that were previously recorded. The unwitting
          drug dealer walked over to the black male and[,] after a
          short time, walked back to the CI. The unwitting drug
          dealer gave the CI the amount of cocaine. The CI exited
          the area. The cocaine field tested positive.

          The vehicle the black male was driving is registered to
          Natasha Holmes at [the residence]. During the following
          week, the vehicle the black male was driving was seen
          parked in the area of [the residence]. On one occasion,
          the black male described above was seen exiting the door
          of [the residence].


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       On September 4, 2013[,] I was in contact with the same
       CI. Under my direction, the CI arranged to purchase an
       amount of cocaine from the unwitting drug dealer in the
       same area. The unwitting drug dealer told the CI that he
       would have to call his main dealer to obtain the cocaine.
       The CI and his/her vehicle were searched for contraband
       with negative results. Police followed the CI to the
       arranged meeting location. Police viewed the unwitting
       drug dealer meet with the CI. The unwitting drug dealer
       told the CI that his main dealer would be on location in five
       to ten minutes. After a few minutes, a police officer,
       assisting with this drug investigation, conducting
       surveillance, viewed the black male exit [the residence].
       Police followed the black male driving the same Acura SUV
       as the previous deal to the arranged meeting location with
       the unwitting drug dealer. The black male met with the
       unwitting drug dealer and then left the area.          Police
       officers followed him from the arranged meeting location,
       stopped and detained him.

       Police officers continued surveillance and saw the unwitting
       drug dealer meet with the CI after the Black male left the
       area. After a few minutes, the unwitting drug dealer left
       the area.     Police followed the CI to a predetermined
       location. The CI handed over an amount of cocaine. The
       CI and his/her vehicle were searched again for contraband
       with negative results. The cocaine purchased through the
       unwitting drug dealer from the black male field-tested
       [positive.]

       Once the black male was detained, he was identified as
       Darell Holmes DOB 07/15/1973. Holmes was read his
       Miranda Rights and advised he understood his rights.
       Holmes said that he stays at [the residence] with his
       girlfriend several nights a week.       He stated that he
       currently sells cocaine to at least two people and he has a
       set of scales and about $1,000.00 at the apartment.

       Based on the above presented information I believe that
       sufficient probable cause existed to establish the fact that
       Darell Holmes is involved in cocaine distribution in York
       County and is utilizing the residence . . . to facilitate that
       criminal activity.   Further, I believe that evidence of
       cocaine distribution, such [as] additional amounts of


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          cocaine, cash, scales[,] and packaging materials will be
          present at this residence.

Affidavit of Probable Cause, 9/4/2013. At the conclusion of the hearing, the

trial court denied the motion.

        The Commonwealth withdrew the two counts of delivery of cocaine.

N.T., 5/9/2014, at 3.       On May 9, 2014, the trial court conducted a bench

trial on the remaining PWID count. The trial court found Holmes guilty and,

pursuant to the parties’ agreement,3 sentenced him to six to twelve years’

imprisonment. Id. at 18-19.

        On June 4, 2014, Holmes filed a timely notice of appeal. Both Holmes

and the trial court complied with Pennsylvania Rule of Appellate Procedure

1925.

        Holmes raises the following issues on appeal:

          1. Whether the trial court erred in denying [Holmes’s]
          Omnibus Pretrial Motion where the police illegally stopped,
          detained, and/or searched [Holmes]?

          2. Whether the trial court erred in denying [Holmes’s]
          Omnibus Pretrial Motion where the search warrant in
          question lacked requisite probable cause?

Appellant’s Brief at 3. Holmes’s issues are meritless.

        When reviewing a denial of a suppression motion, we limit our review

to determining whether the record supports the factual findings and whether
____________________________________________


3
  Because Appellant wanted to appeal the denial of the motion, the parties
stipulated to a bench trial. N.T., 5/9/2014, at 5. As part of this agreement,
the parties agreed to a sentence of 6-12 years’ imprisonment. Id. at 5-6.



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the legal conclusions drawn from those facts are correct. Commonwealth

v. Brown, 64 A.3d 1101, 1104 (Pa.Super.2013). In addition, because the

Commonwealth prevailed in the suppression court, we consider only the

Commonwealth’s evidence and so much of the defense evidence “as remains

uncontradicted when read in the context of the record as a whole.” Id. We

may only consider evidence presented at the suppression hearing.        In re

L.J., 79 A.3d 1073, 1085-87 (Pa.2013). We “may reverse only if the legal

conclusions drawn therefrom are in error.” Brown, 64 A.3d at 1104.

     Whether probable cause exists to justify an arrest “is determined by

considering the totality of the circumstances.” Commonwealth v. Holton,

906 A.2d 1246, 1249 (Pa.Super.2006) (citing Illinois v. Gates, 462 U.S.

213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). “Under the totality of the

circumstances, a police officer must make a practical common sense decision

whether, given all of the circumstances known to him at that time, including

hearsay information, there is a fair probability that a crime was committed

and that the suspect committed the crime.” Id. (quoting Commonwealth

v. Taylor, 850 A.2d 684, 687 (Pa.Super.2004)).       Further, this Court has

explained:

        Probable cause to arrest exists when the facts and
        circumstances within the police officer’s knowledge 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. Probable cause does not involve
        certainties, but rather the factual and practical

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           considerations of everyday life on which reasonable and
           prudent men act. It is only the probability and not a prima
           facie showing of criminal activity that is a standard of
           probable cause. To this point on the quanta of evidence
           necessary to establish probable cause, the United States
           Supreme Court recently noted that finely tuned standards
           such as proof beyond a reasonable doubt or by a
           preponderance of the evidence, useful in formal trials,
           have no place in the probable-cause decision.

Id.   (quoting    Commonwealth         v.   Dommel,      885   A.2d   998,   1002

(Pa.Super.2005)).

      Similarly, courts apply this totality of the circumstances test to

determine whether probable cause supports the issuance of a search

warrant.    Commonwealth v. Jones, 988 A.2d 649, 655 (Pa.2010).               The

Supreme Court of Pennsylvania has stated:

           Pursuant to the “totality of the circumstances” test set
           forth by the United States Supreme Court in Gates, the
           task of an issuing authority is simply to make a practical,
           common-sense decision whether, given all of the
           circumstances set forth in the affidavit before him,
           including the veracity and basis of knowledge of persons
           supplying hearsay information, there is a fair probability
           that contraband or evidence of a crime will be found in a
           particular place . . . . It is the duty of a court reviewing an
           issuing authority’s probable cause determination to ensure
           that the magistrate had a substantial basis for concluding
           that probable cause existed. In so doing, the reviewing
           court must accord deference to the issuing authority’s
           probable cause determination, and must view the
           information offered to establish probable cause in a
           common-sense, non-technical manner.

Id. (quoting Commonwealth v. Torres, 764 A.2d 532, 537–38, 540

(Pa.2001)).



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     Further, “an informant’s tip may constitute probable cause where

police independently corroborate the tip, or where the informant has

provided accurate information of criminal activity in the past, or where the

informant himself participated in the criminal activity.” Commonwealth v.

Clark, 28 A.3d 1284, 1288 (Pa.2011) (quoting Commonwealth v. Luv,

735 A.2d 87, 90 (1999)).

     Holmes first contends the police lacked probable cause to support his

warrantless arrest.   Appellant’s Brief at 6.   Holmes maintains the police

based their conclusion that Holmes possessed and delivered drugs on the

unreliable statements of the “unwitting drug dealer.” Id. He maintains the

unreliable statements of the drug dealer are similar to anonymous tips and

the police lacked corroborating evidence. Id. He claims the police did not

see a hand-to-hand transaction between Holmes and the drug dealer and he

could have arrived at the location for an innocent reason, such as paying

back money owed to the drug dealer. Appellant’s Brief at 9 (quoting N.T.,

12/19/2013, 4-6).

     The trial court found the police officers had probable cause to arrest

Holmes because the police received information from a CI that he could buy

cocaine from an “unwitting drug dealer” at a specified location, which police

officers corroborated by surveillance on two occasions. Opinion, 9/15/2014,

at 6. The court “felt the CI’s reliability was established because the same

type of transaction occurred on two different occasions.” Id. The trial court

reasoned that Holmes’s claim that he could have had another reason for

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arriving at the location was a trial issue, not a suppression issue. Id. at 7.

The trial court concluded the evidence should not be suppressed.       Id.   It

reasoned probable cause supported the arrest because the police officers

had reason to believe Holmes had just left the scene of a drug transaction

and was involved in the transaction. Id.

     The trial court did not err when it found probable cause supported the

warrantless arrest.    Under the totality of the circumstances, sufficient

evidence supported the probable cause determination.           A CI relayed

information from an “unwitting drug dealer,” who said his supplier would

soon arrive at the location.   This statement was corroborated when, after

Holmes arrived at the location and met with the drug dealer, the drug dealer

provided cocaine to the CI. The information was further corroborated when,

during the second controlled buy, the drug dealer again informed the CI that

his supplier would be at the meeting location. The police followed Holmes to

the location, where he again briefly met with the drug dealer and left the

location. The drug dealer then provided drugs to the CI. Given the totality

of the circumstances, a “person of reasonable caution” would believe “that

an offense [had] been committed by” Holmes.        See Holton, 906 A.2d at

1249; Clark, 28 A.3d at 1288 (“informant’s tip may constitute probable

cause where police independently corroborate the tip… .”); Commonwealth

v. Goldsborough, 31 A.3d 299 (Pa.Super.2011) (probable cause to

effectuate   custodial detention existed where     police   received detailed

information of defendant’s drug activities from two reliable confidential

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informants, the information received from each informant bolstered the

information received from the other informant, and the police conducted

surveillance).

      Holmes next contends the court erred when it found probable cause

existed to support the search warrant of Holmes’s residence.       Appellant’s

Brief at 17-18.   He again argues the “unwitting drug dealer” was not a

reliable informant and the information provided by the drug dealer, i.e., that

Holmes was his supplier, lacked independent corroboration. Id., at 17. He

argues, because the arrest was improper, the search was improper. Id.

      For the same reasons that it found probable cause supported Holmes’s

arrest, the trial court also found probable cause supported the issuance of

the search warrant. Opinion, 9/15/2014, at 5-7.

      As discussed above, probable cause existed to conduct the stop and

arrest. Following this stop, Holmes informed police that his girlfriend resided

at the residence and he often stayed there. He also stated the police would

find drugs, a scale, and $1,000.00 at the residence.

      Based on this evidence, the trial court did not err in finding probable

cause supported the issuance of the search warrant.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2015




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