J-S32007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

JEAN LUC ARCHER,

                            Appellee                  No. 1154 WDA 2014


               Appeal from the Suppression Order June 12, 2014
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000168-2014


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 08, 2015

       The Commonwealth appeals from the order granting Jean Luc Archer’s

(“Appellee”) pretrial motion to suppress.1     After careful consideration, we

reverse.

       The trial court summarized the factual history of this case as follows:

             The Cambria County Drug Task Force arranged a drug
       transaction on November 26, 2013, involving an undercover task
       force member, Stacy Burnosky. Detective Burnosky utilized the
       services of an “unwitting” heroin user, Shawn Varner.

            Burnosky asked Varner to buy her [a brick]2 of heroin for
       $425.00.  Varner called his supplier, who was unknown to
____________________________________________


1
   This Court has jurisdiction over this appeal as an appeal from an
interlocutory order as of right pursuant to Pa.R.A.P. 311(d).            The
Commonwealth has certified in its notice of appeal that the suppression
order terminates or substantially handicaps its prosecution of Appellee.
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      Burnosky throughout the events, but is now known as Herman
      Edwards. Burnosky drove Varner to [a] McDonald’s restaurant in
      Westmont for the exchange. Edwards called Varner and told him
      to drive to First Commonwealth Bank in Johnstown. Burnosky,
      presumably out of Varner’s hearing, relayed this information to
      Detective Arcurio, who was conducting surveillance. In a one-
      sided cell phone call, overheard by Burnosky, Edwards told
      Varner to get in a white car parked at the bank with Edwards’
      cousin ([Appellee]), which Varner did. One to two minutes later,
      police surrounded the vehicle and arrested Varner and
      [Appellee]. No drug transaction was viewed. $425 was still in
      Varner’s pocket.      A magazine-paper wrapped bundle of
      suspected controlled substances was found on the driver’s seat.

Trial Court Opinion, 6/12/14, at 1-2.

      Appellee was charged with one count of criminal conspiracy, one count

of possession with intent to deliver (“PWID”), and one count of possession.

Appellee filed a pretrial motion to suppress evidence, alleging that he was

illegally seized and arrested without reasonable suspicion or probable cause.

The trial court granted Appellee’s motion to suppress, finding that Appellee’s

“arrest was premature and at the time the police lacked sufficient reliable

and trustworthy information to establish probable cause for a warrantless

arrest.” Trial Court Opinion, 6/12/14, at 3.

      The Commonwealth presents the following issue for our review:

             Whether the suppression court erred by holding that the
      warrantless arrest of [Appellee] was premature and lacked
      sufficient probable cause when the officers on scene had
      reasonably trustworthy information which would warrant a

                       _______________________
(Footnote Continued)
2
  Detective Justin Arcurio of the Cambria County Drug Task Force testified
that a “brick” of heroin consisted of fifty bags of heroin. N.T., 1/27/14, at 4.



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        person of reasonable caution in the belief that an offense had
        been committed by [Appellee].

Commonwealth’s Brief at 4.

        We begin by noting our well-settled standard of review.

        When the Commonwealth appeals from a suppression order, we
        follow a clearly defined standard of review and consider only the
        evidence from the defendant’s witnesses together with the
        evidence of the prosecution that, when read in the context of the
        entire record, remains uncontradicted. The suppression court’s
        findings of fact bind an appellate court if the record supports
        those findings. The suppression court’s conclusions of law,
        however, are not binding on an appellate court, whose duty is to
        determine if the suppression court properly applied the law to
        the facts.

Commonwealth v. Carter, 105 A.3d 765, 768 (Pa. Super. 2014).                The

finder of fact is free to believe some, all, or none of the evidence presented.

Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super. 2006).

        In the instant case, the Commonwealth asserts that the proper

standard to be used to determine whether probable cause supporting an

arrest exists is “one of a totality of circumstances.” Commonwealth’s Brief

at 8.    The Commonwealth argues that the suppression court failed to use

this standard. Id. The Commonwealth maintains that based on the totality

of circumstances, the Drug Task Force had reason to believe that Appellee

had a “brick” of heroin.      Id. at 11.    As a result, the Commonwealth

contends, the detectives had probable cause to arrest Appellee. Id.

        In determining whether probable cause exists, we have provided the

following explanation:


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             To be lawful, an arrest must be supported by probable
      cause to believe that a crime has been committed by the person
      who is to be arrested. A police officer must make a common
      sense decision whether there is a fair probability that a crime
      was committed by the suspect. Whether probable cause exists
      is a highly fact-sensitive inquiry that must be based on the
      totality of the circumstances as viewed through the eyes of a
      prudent, reasonable, cautious police officer guided by experience
      and training. [P]robable cause does not involve certainties, but
      rather the factual and practical considerations of everyday life on
      which reasonable and prudent [human beings] act.

Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007) (internal

citations and quotations marks omitted). “[P]robable cause does not require

certainty, but rather exists when criminality is one reasonable inference, not

necessarily even the most likely inference.”    Commonwealth v. Spieler,

887 A.2d 1271, 1275 (Pa. Super. 2005) (citation omitted). Additionally, our

Supreme Court has stated that a determination of probable cause requires

only that the totality of the circumstances demonstrates “a fair probability

that contraband or evidence of a crime will be found in a particular place.”

Commonwealth v. Torres, 764 A.2d 532, 537 (Pa. 2001).

      In the case sub judice, Detective Burnosky provided the following

testimony regarding the drug transaction:

      [Detective Burnosky]: What occurred was, I was in contact with
      a Shawn Varner; contacted him for him to buy me a brick of
      heroin. He then was able to contact a black male over the
      phone to meet him somewhere.           The first place we were
      supposed to meet this male was at his residence in Westmont.
      We then got a phone call to go to McDonald’s in Westmont.
      After that he then contacted the male again, [and he was]
      advised to go to the First Commonwealth in Johnstown. We then
      arrived there, and Mr. Varner then called the black male. And I
      could hear him state, there is [sic] two vehicles pulling in, go to

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     the second vehicle, my cousin has the heroin. I then handed Mr.
     Varner the $425, and he then walked to the second vehicle
     where he was told to go to.

     [Counsel]: And you actually heard the voices on the phone say
     that?

     [Detective Burnosky]: Yes.

     [Counsel]: The two white vehicles, can you tell the Court where
     those vehicles were parked in relation to your vehicle?

     [Detective Burnosky]: I was parked in the parking lot of the
     bank. The first white vehicle parked next to me and the second
     white vehicle parked a little bit further down in the lot. I was
     still in view of both vehicles.

                                      ***

     [Counsel]: So after you heard this phone call, then what
     happened?

     [Detective Burnosky]: I handed him $425, then Mr. Varner then
     walked past the first white vehicle and went to the second
     vehicle.

     [Counsel]: And those were official funds?

     [Detective Burnosky]: Yes.

     [Counsel]: After      that,   what   happened   as   far   as   you’re
     concerned?

     [Detective Burnosky]: Then when the other officers arrived on
     scene, the detectives then took the individuals in the second car
     [into] custody.

N.T., 1/27/14, at 15-16.

     Detective Justin Arcurio, a member of the same Drug Task Force, was

conducting surveillance during the incident and provided the following

testimony:

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     [Detective Justin Arcurio]:    We had an undercover detective
     [hereinafter “UC”] who was able to buy a quantity of heroin off
     of a male by the name of Shawn Varner. Mr. Varner and the
     undercover detective were in a phone conversation with each
     other several times, and Mr. Varner told the undercover
     detective to come to his house and meet with him. Mr. Varner
     said that the brick of heroin, which is 50 bags, would cost $425.
     So the task force detectives photocopied $425 and handed [it] to
     the UC. The UC went to Mr. Varner’s residence, and Mr. Varner
     advised the UC that his supplier wanted to meet at the
     McDonald’s in the Westwood Plaza. So the UC and Mr. Varner
     got into the task force vehicle and drove to McDonald’s. When
     they got to McDonald’s, they sat there probably for about maybe
     10 or so minutes, give or take a minute.

     [Counsel]: Were they under surveillance?

     [Detective Justin Arcurio]:   Yes.   There were other task force
     detectives following them.

     [Counsel]: Did they follow originally to pick him up?

     [Detective Justin Arcurio]: Yes.    They were following the
     entire time from leaving the FBI office down to Mr. Varner’s
     house and then from Mr. Varner’s house to the McDonald’s.

     [Counsel]: I apologize. Go ahead.

     [Detective Justin Arcurio]: We got to McDonald’s. Like I said,
     we waited for about ten minutes, and I got advised by the UC
     that the location was going to be changed to the First
     Commonwealth Bank down in the Eighth Ward by Bishop McCort.
     So the UC and Mr. Varner left McDonald’s and started to drive
     towards First Commonwealth Bank.       As previous, from Mr.
     Varner’s house to McDonald’s, they were followed by task force
     detectives. They didn’t make any stops. They drove right from
     McDonald’s to First Commonwealth Bank.

           When they got there, myself and Mr. Keirn were in the
     task force car together doing surveillance. We parked in front of
     Bishop McCort and had view of the task force vehicle that the UC
     and Mr. Varner were in. While waiting at the bank, the UC
     handed Mr. Varner $400 of official funds to purchase the heroin.
     A short time later two white vehicles entered First

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     Commonwealth, and at that time the one vehicle parked next to
     the task force car where the UC and Mr. Varner were located and
     the other vehicle parked on like the other side of the bank; and
     Mr. Varner walked away from the task force vehicle and the UC
     to the white vehicle and got in the front passenger seat.

     [Counsel]: Which white vehicle was that?

     [Detective Justin Arcurio]:  It was the first one.      I don’t
     remember the make or model, but it was the one that parked
     away from them. The first one parked beside them, the second
     one parked away from them. After about a minute or so myself
     and other task force detectives approached the vehicle and took
     Mr. Varner and a black male driver, which was later identified as
     [Appellee], into custody. Myself, and I believe it was Detective
     Vince Arcurio, took Mr. Varner out and placed him into custody,
     and Detective Keirn and I believe Agent Bernard took out
     [Appellee] and placed him into custody.

           I was reading Mr. Varner’s Miranda warnings the same
     time Detective Keirn was reading [Appellee’s] Miranda warnings.
     I could hear him. When [Appellee] was taken out of the vehicle,
     a quantity of heroin was on the seat where he was taken out of.

N.T., 1/27/14, at 4-6.

     Furthermore,    Shawn    Varner   provided   the   following   testimony

regarding the drug transaction:

     [Shawn Varner]: I was at my house [on November 26, 2013]
     originally. I got picked up.

     [Counsel]: Who picked you up?

     [Shawn Varner]: The undercover lady.

     [Counsel]: Did you know that she was an undercover lady?

     [Shawn Varner]: No.

     [Counsel]: How did it get arranged for her to pick you up?




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     [Shawn Varner]: She had called me the day prior and asked if I
     could get something for her.

     [Counsel]: Get something, what does that mean?

     [Shawn Varner]: Heroin.

     [Counsel]: Did you agree to do that?

     [Shawn Varner]: Yes.

     [Counsel]: So that would have been on the 25th?

     [Shawn Varner]: Yes.

     [Counsel]: So on the 26th she comes to pick you up.        What
     happens when she comes to pick you up?

     [Shawn Varner]: She picked me up. I received a call and was
     told to go to McDonald’s in Westmont. Left from McDonald’s
     after I got another call and went down to First Commonwealth
     Bank.

     [Counsel]: Who were these calls from?

     [Shawn Varner]: Herman Edwards.

     [Counsel]: He directed you to go first to McDonald’s and then to
     the bank?

     [Shawn Varner]: Yes.

     [Counsel]: Did you receive any other calls during that time
     period?

     [Shawn Varner]: No.

     [Counsel]: Once you got to the bank, what happened?

     [Shawn Varner]: I had gotten out of the vehicle and smoked a
     cigarette. I was walking to his vehicle, one vehicle that he has,
     and got in the vehicle with [Appellee].

     [Counsel]: So [Appellee] was in the vehicle?

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      [Shawn Varner]: Yes.

      [Counsel]: Was anyone else in the vehicle?

      [Shawn Varner]: No.

      [Counsel]: Once you got in the vehicle what happened?

      [Shawn Varner]: I had the money on me. Within a couple
      seconds we had got [sic] surrounded and handcuffed and put in
      the vehicles. Got arrested.

      [Counsel]: What were you told about [Appellee] before you got
      into the vehicle?

      [Shawn Varner]: Just that I was supposed to go to that vehicle.

      [Counsel]: What was supposed to happen in that vehicle?

      [Shawn Varner]: To receive the heroin.

      [Counsel]: And who told you that?

      [Shawn Varner]: Herman Edwards.

N.T., 1/27/14, at 20-22. Detective Vince Arcurio also testified that he was

part of the drug task force conducting surveillance and on the date at issue,

saw Varner “walking towards Mr. Edwards’ car when he first came into the

bank. . . . but I seen [sic] his hand motions, meaning Mr. Edwards, for

[Varner] to go to the car behind him, and that’s where Varner went.” Id. at

37-38.

      Based on the totality of circumstances, we are constrained to conclude

that the officers had probable cause to believe that Appellee was engaged in

criminal activity.   As stated, Detective Burnosky initiated the request to


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purchase a brick of heroin with Shawn Varner.               Shawn Varner put into

motion events to complete the purchase for Detective Burnosky.                  For

purposes of completing the drug transaction, Detective Burnosky picked

Varner up at his house. Varner’s supplier first advised Varner and Burnosky

to meet the supplier at his residence in Westmont.               The supplier then

advised Varner and Burnosky to proceed to the McDonald’s in Westmont.

After a subsequent contact, Burnosky and Varner were advised to proceed to

the First Commonwealth Bank in Johnstown. After proceeding to the Bank

and entering the parking lot, Varner received a phone call, overheard by

Burnosky, directing Varner to “go to the second vehicle, my cousin has the

heroin.”    Id. at 15.     Burnosky handed Varner the money for the heroin

purchase, which Varner took as he proceeded to the second vehicle for the

heroin purchase.      Once in the vehicle, the officers surrounded the vehicle

and arrested Varner and Appellee.              Heroin was discovered in the vehicle

where Appellee had been sitting.3

____________________________________________


3
 When describing the heroin as he saw it on Appellee’s seat in the car,
Detective Thomas Keirn testified as follows:

       [Detective Keirn]: Those are heroin stamped bags in bundles,
       the rubber bands, and it appears as though there is one that
       may be opened or may have been opened. But that’s what I
       would consider probably a brick of heroin there, five bundles.

       [Counsel]: So is it clear to you that that’s how heroin would be
       packaged?

(Footnote Continued Next Page)


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      Thus, based on the evidence of record, it is reasonable to conclude

that Appellee showed up at the First Commonwealth Bank and engaged

Varner in response to Burnosky and Varner’s request to purchase heroin.

Review of the totality of circumstances results in a reasonable inference that

Appellee was involved in criminal drug activity and a fair probability that

evidence of criminal activity would be found in Appellee’s possession.

Spieler, 887 A.2d at 1275; Torres, 764 A.2d at 537. Indeed, heroin was

discovered when the officers detained Appellee. Therefore, the officers had

probable cause to detain and arrest Appellee.

      The trial court erred in failing to apply the totality of circumstances

standard in determining whether the officers had probable cause to detain

and arrest Appellee.        Moreover, the trial court erred in failing to conclude

that the officers had probable cause to arrest Appellee. Consequently, the

trial court erred in granting Appellee’s pretrial motion to suppress.         We

therefore reverse the trial court’s holding and remand for proceedings

consistent with this memorandum.

      Order reversed. Case remanded. Jurisdiction relinquished.




                       _______________________
(Footnote Continued)

      [Detective Keirn]: Yes. I have seen it many, many times.

N.T., 1/27/14, at 42-43.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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