J-A05007-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LINERE COSBY                               :
                                               :
                       Appellant               :   No. 1711 WDA 2018

        Appeal from the Judgment of Sentence Entered October 30, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0002470-2018


BEFORE:      BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                              FILED MAY 13, 2020

        Appellant, Linere Cosby, appeals from the judgment of sentence of an

aggregate term of 27-54 months’ incarceration, and a consecutive 3 years’

probation, imposed following his conviction for possession of,1 and possession

with intent to deliver (PWID),2 heroin.3 Appellant challenges the denial of his

motion to suppress, arguing that the police possessed neither probable cause

nor exigent circumstances necessary to search his vehicle.         Additionally,

Appellant challenges the legality of his sentence, contending that his

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16).

2   35 P.S. § 780-113(a)(30).

3 The trial court also found Appellant guilty of criminal use of a communication
facility, 18 Pa.C.S. § 7512. However, the court sentenced Appellant to no
further penalty for that offense.
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convictions for possession and PWID should have merged for sentencing

purposes. After careful review, we affirm with respect to the order denying

suppression of the seized contraband. However, we agree with Appellant that

he was illegally sentenced and, therefore, we remand for resentencing.

     The trial court summarized the relevant facts adduced at Appellant’s

suppression hearing as follows:

     Detective Sheila Ladner of the City of Pittsburgh Bureau of Police
     testified that she had received information on January 10, 2018[,]
     that an unidentified person was selling heroin. Detective Ladner
     was provided with a cell phone number for that person and she
     contacted the person via text message and by directly calling him.
     Detective Ladner arranged to sell a Desert Eagle firearm to this
     unknown person in exchange for a .40 caliber firearm and two
     bundles of heroin. At the time she arranged the transaction,
     Detective Ladner had been provided with a physical description of
     the unknown person.

     Text messages of the conversations between Detective Ladner
     and the unknown person were admitted at trial.              These
     communications occurred over a period of hours. De[tective]
     Ladner texted, “Hey, it’s Carne’s friend. So I got the heater, but
     I’m not driving. You drive.” In response, Detective Ladner
     received a text message stating “Call.” Detective Ladner then
     called the number. She told the person to whom she was speaking
     that she was located in the Carrick section of the City of
     Pittsburgh. The person to whom she was speaking asked her if
     she had ammunition for the firearm and he advised her that he
     would trade the .40 caliber firearm and give her two bundles of
     heroin. She then sent a text message stating, “You can come
     through if you are still around.” The person responded by texting,
     “WYA”, meaning “Where you at?” The unknown person also
     texted[,] “Don’t got much, but I’ll trade and give you two.”
     Detective Ladner responded “Two whole?” In response, the
     person texted “B, I trade you one — two.” Detective Ladner then
     texted, “Hey, I got to do this later. Now my grandma want to
     come here and bring us dinner. Are you going to be around later
     or tomorrow?[”] The unknown person then called her. She did
     not answer the call but sent a text message stating, “Can’t talk in

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     front of her. I’ll call when she leaves.” The unknown person
     replied, “Fuck no. Don’t call me again.” Detective Ladner texted
     back, “[S]he’s leaving in 20 minutes. Do you want this or not?
     Sorry, I can’t control her. LMK.” He replied, “Yeah, call when
     ready.” Detective Ladner then provided the address of “23 Merritt
     Avenue” to him. They agreed to meet around 6:00 p.m.

     Around that time, Detective Ladner received a phone call from the
     unknown person. He advised that he had turned onto Merritt
     Avenue and he was parked in front of 29 Merritt Avenue. As
     Detective Ladner was speaking with the unknown person, whom
     she believed was male, she observed a silver BMW turn onto
     Merritt Avenue from Brownsville Road and park in front of 29
     Merritt Avenue. She observed that a black male was operating
     the vehicle and he was speaking on his phone at the same time
     she was speaking to the unknown male. Detective Ladner then
     relayed the circumstances of her conversations with the unknown
     black male and undercover officers rushed the area.

     Other detectives approached the silver BMW. There were no other
     people or vehicles on the street at this time. The driver dropped
     his hand to the right toward the passenger seat. His cell phone
     was located on the front passenger seat. The unknown male was
     removed from the vehicle and detained. This unknown male was
     [Appellant]. Detectives asked him if there was a weapon in the
     vehicle. [Appellant] replied, “Come on, man. You didn’t think I
     was really going to bring that here.” Detective Ladner then called
     the cell phone number she had been using for this transaction and
     the cell phone inside the silver BMW rang and displayed Detective
     Ladner’s phone number. Detectives also recovered a baggie of
     heroin sticking out from the liner between the windshield and the
     roof.

Trial Court Opinion (TCO), 6/24/19, at 2-4.

     Following his arrest, the Commonwealth charged Appellant with

possession, PWID, and criminal use of a communication facility. On June 25,

2018, Appellant filed a suppression motion, which was denied following a

hearing held on August 23, 2018. Appellant proceeded to a non-jury trial on

October 30, 2018, where the court convicted him on all counts. That same



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day, the court sentenced Appellant to 21-24 months’ incarceration for PWID,

and to a consecutive term of 6-12 months’ incarceration, with a 3-year

probation tail, for possession. The trial court imposed no further penalty for

the remaining offense. Appellant filed a timely notice of appeal, and a timely,

court-ordered Pa.R.A.P. 1925(b) statement.4 The trial court issued its Rule

1925(a) opinion on June 24, 2019.

       Appellant now presents the following questions for our review:

        I.    Where [Appellant] was arrested immediately upon parking
              at 29 Merritt Avenue and prior to police observing any illegal
              activity, was his arrest and subsequent search of his vehicle,
              based only on a vague description from a confidential
              informant and text messages and phone conversations with
              an undercover detective, supported by probable cause?

       II.    Where the police created the exigent circumstances to
              search the vehicle by not obtaining a warrant prior to the
              arranged take-down of [Appellant] and his vehicle, does
              Commonwealth v. Gary[, 91 A.3d 183 (Pa. 2014),]
              control and, if so, does Article I, Section 8 of the
              Pennsylvania Constitution not provide greater protection
              than the Fourth Amendment of the United States
              Constitution?

      III.    Where [Appellant] was found guilty and sentenced for both
              [p]osession … and [PWID], was his sentence illegal because
              these charges must merge [at] sentencing?

Appellant’s Brief at 5.

                                   Probable Cause




____________________________________________


4Appellant also filed a supplemental Rule 1925(b) statement after successfully
seeking the trial court’s permission.

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      In his first claim, Appellant contends the trial court erred in denying his

suppression motion, arguing that the police did not possess probable cause to

arrest him.

      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, 783–84 (Pa. Super. 2012)

(cleaned up).

      It is undisputed by the parties that the relevant standard for evaluating

the constitutionality of the search of Appellant’s car under the circumstances

of this case is the probable cause standard.

      The level of probable cause necessary for warrantless searches of
      automobiles is the same as that required to obtain a search
      warrant. The well-established standard for evaluating whether
      probable cause exists is the “totality of the circumstances” test.
      This test allows for a flexible, common-sense approach to all
      circumstances presented. Probable cause typically exists where
      the facts and circumstances within the officer’s knowledge are
      sufficient to warrant a person of reasonable caution in the belief
      that an offense has been or is being committed. The evidence
      required to establish probable cause for a warrantless search must

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      be more than a mere suspicion or a good faith belief on the part
      of the police officer.

      Under the totality of the circumstances test, a tip from an
      unnamed informant can properly form the basis for probable
      cause, provided there is adequate evidence of the informant’s
      credibility and the reliability of his or her information. The
      credibility of an informant and the reliability of the information
      provided may be established through either the assertion that the
      informant has given reliable information in the past or through
      independent police corroboration of the tip.

Commonwealth v. Lechner, 685 A.2d 1014, 1016–17 (Pa. Super. 1996)

(citations omitted).

      Here, Appellant argues that the police
      observed nothing more than legal conduct by [Appellant]: he was
      a black male, parked his vehicle on Merritt Avenue, and was on
      the phone. At the moment he and his car was seized, officers
      could not confirm that [Appellant] was the person on the phone
      with Detective Ladner. Absent such corroboration, the search of
      his car was without probable cause.

Appellant’s Brief at 23.

      The trial court

      denied [Appellant]’s suppression motion because it believes the
      record contains sufficient probable cause to justify the search of
      the silver BMW.       As reflected on the suppression record,
      [Appellant] had repeatedly communicated with Detective Ladner
      about meeting in order to exchange heroin and firearms. They
      communicated orally and via text message and the
      communications were shared with other members of the
      investigative team. The conversations were detailed and it was
      abundantly clear that [Appellant] was going to drive to meet
      Detective Ladner to supply Detective Ladner with heroin. They
      designated a meeting place and [Appellant] informed Detective
      Ladner when he had arrived at that specific location. [Appellant]
      was driving the silver BMW and he was observed in it by the
      detectives. [He] was the only person in the area at the time of
      his arrest and there was little chance of any type of
      misidentification. This [c]ourt believes that the reasonable


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      inference from these facts is that the silver BMW contained
      evidence of criminal conduct. Therefore, probable cause existed
      for the warrantless search of the silver BMW.

TCO at 5-6.

      We agree with the trial court. Several facts supported probable cause

to believe that Appellant was engaging in criminal activity and, additionally,

that contraband would be discovered in his vehicle. First, police received a tip

from a reliable source.       Second, Detective Ladner’s text and phone

conversations corroborated that tip in that they established the intent to

engage in criminal conduct by the person on the other end of that

conversation. Third, Appellant’s identity as that person was confirmed when

1) he arrived at 29 Merritt Avenue at the same time the caller said he was

arriving at that location; 2) he was observed on the phone at the same time

Detective Ladner was on the phone with caller; and 3) no other potential

suspects were in the vicinity at the same time.

      With regard to the confirmation of Appellant’s identity under the third

factor above, Appellant concedes that “probable cause hinged on the likelihood

that [Appellant] was the drug dealer with whom Detective Ladner spoke….”

Appellant’s Brief at 27. We agree. However, Appellant simply applies too high

of a standard for what constitutes probable cause in these circumstances. It

is, of course, possible that that it was merely a coincidence that Appellant had

arrived at the precise time and location as the person on the phone had

represented to Detective Ladner, and/or that the real culprit had falsely

claimed to be arriving at that location at that precise time (explaining the


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absence of anyone else in the vicinity). However, a finding of probable cause

does not require absolute certainty regarding Appellant’s commission of a

crime, nor the absence of any and all doubts of his culpability. It requires only

“facts and circumstances within the officer’s knowledge” that “are sufficient to

warrant a person of reasonable caution in the belief that an offense has been

or is being committed[,]” and that Appellant was the person committing such

an offense. Lechner, 685 A.2d at 1016 (emphasis added). Here, a person

of reasonable caution exercising basic common sense would believe that

Appellant was the person speaking on the phone and texting with Detective

Ladner. Accordingly, we conclude that the trial court did not err in determining

that probable cause existed to justify the search of Appellant’s vehicle.

                          Police-created Exigency

       Next, Appellant presents two arguments as to why the automobile

exception to the warrant requirement does not apply in this case.

       As a general rule, for a search to be reasonable under the Fourth
       Amendment or Article I, Section 8 [of the Pennsylvania
       Constitution,] police must obtain a warrant, supported by
       probable cause and issued by an independent judicial officer, prior
       to conducting the search. This general rule is subject to only a
       few delineated exceptions, including the existence of exigent
       circumstances.

Gary, 91 A.3d at 107. In Gary, our Supreme Court adopted “the federal

automobile exception to the warrant requirement, which allows police officers

to search a motor vehicle when there is probable cause to do so and does not

require any exigency beyond the inherent mobility of a motor vehicle.” Id. at

104.

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      Appellant contends that Gary does not apply in the circumstances of

this case.    Alternatively, he argues that if Gary applies, it should be

reconsidered. We will consider each argument in turn.

      Appellant first attempts to distinguish the facts of this case from Gary,

reasoning as follows:

      True, the “automobile exception” was adopted in Pennsylvania,
      moving the Commonwealth in line with the federal practice of
      requiring only probable cause, and no exigency, to support a
      warrantless search of a vehicle. Gary, 91 A.3d [at] 138….
      However, the facts in that case are distinguishable from the case
      at bar. In Gary, Philadelphia Police officers observed a vehicle
      driving with overly-tinted windows. Id. at 104. The officer
      stopped the vehicle based solely on the suspected window[-]tint
      violation and observed the smell of marijuana emanating from the
      vehicle. Id. After asking the driver about the smell, the driver
      confirmed that there was marijuana in the car. Id. Police
      removed the driver and summoned the canine unit and, when the
      canine unit began its search, the driver fled. Id. Ultimately, the
      driver was apprehended, and the car searched based only on
      probable cause, and two pounds of marijuana were found in the
      car. Id. The Supreme Court of Pennsylvania ultimately found
      that probable cause was all that was required to support the
      warrantless search. Id. at 138.

      The case at bar presents wholly different facts. Here, the officers
      created a controlled takedown situation where they expected an
      individual to arrive at a certain time, were prepared and in position
      to execute a takedown, and had every opportunity to obtain an
      anticipatory warrant prior to arresting [Appellant] and searching
      his car. Detectives had at least 5 hours to obtain a warrant.

Appellant’s Brief at 30-31 (some citations omitted).

      We agree with Appellant insofar as he argues that the at-issue exigency

did not arise in the same fashion here as it did in Gary. That is, police in this

case surely had some expectation that a search of a vehicle would occur if the



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person on the phone showed up as promised, whereas in Gary, quickly

evolving circumstances during a traffic stop ultimately led to the need to

search Gary’s vehicle.    However, we disagree with Appellant that such a

factual distinction is relevant in light of Gary, given that the circumstances of

this case are not so rare or unimaginable that it would be fair to say that they

were unanticipated by the Gary Court.          Moreover, that Court justified its

adoption of the federal automobile exception, at least in part, on the difficulty

of articulating a uniform standard for assessing exigency in the myriad of

circumstances in which warrantless searches of vehicles arise. See Gary, 91

A.3d at 134 (“One need only examine this Court’s fractured jurisprudence in

the area of motor vehicle searches to recognize the difficulty that we have had

in articulating a consistent, clear, understandable, and readily applicable

conception of exigency sufficient to support a warrantless vehicular search.”).

Appellant’s attempt to distinguish Gary appears to be no more than a

challenge to the rationale of the decision itself, which had effectively jettisoned

case-by-case analysis of exigency.

      The only exception to Gary recognized by our Supreme Court thus far

was in Commonwealth v. Loughnane, 173 A.3d 733 (Pa. 2017), where the

vehicle searched was located in the defendant’s driveway. The Loughnane

Court found that reasonable expectations of privacy in an automobile are

heightened when in a private driveway, undermining the very “bases for the

reduced expectation of privacy” that justify the automobile exception in the

first instance.   Id. at 745.   Thus, the only recognized exception to Gary

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concerns circumstances where the expectation of privacy in a vehicle is

heightened.   That is not the nature of Appellant’s challenge, which relates

instead to the question of exigency. Moreover, Appellant has failed to cite any

case suggesting that either Gary, or the federal automobile exception, are

inapplicable in circumstances of police-created exigency. In our view, the very

nature of the automobile exception puts aside the question of exigency in

favor of a bright-line rule.

      Finally, to the extent that Appellant argues that less-intrusive means

were available in the form of an anticipatory warrant, we disagree. Warrants

require probable cause, and the police in this case did not possess probable

cause to arrest Appellant until they observed him arriving at 29 Merritt

Avenue. In any event, what police might have otherwise done as a matter of

good policy is distinguishable from the constraints of the federal and state

constitutions. As the United States Supreme Court has stated:

      A creative judge engaged in post hoc evaluation of police conduct
      can almost always imagine some alternative means by which the
      objectives of the police might have been accomplished. But “[t]he
      fact that the protection of the public might, in the abstract, have
      been accomplished by ‘less intrusive’ means does not, itself,
      render the search unreasonable.”

United States v. Sharpe, 470 U.S. 675, 686–87 (1985) (quoting Cady v.

Dombrowski, 413 U.S. 433, 447 (1973)).

      For the above reasons, we conclude that Gary applies to the

circumstances of this case and, therefore, the trial court did not err in applying

Gary to deny Appellant’s suppression motion.


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      Next, Appellant contends that if Gary applies, it should be reconsidered

in favor of the pre-Gary standard where exigency was determined on a case-

by-case basis for warrantless vehicle searches. Appellant concedes that “this

Honorable Court is bound by Pennsylvania Court precedent and is not in a

position to change the law in this area.” Appellant’s Brief at 34. We agree.

This Court is bound by Gary and, thus, we lack the authority to provide any

relief for this claim. However, we recognize that Appellant has preserved this

claim for further review by our Supreme Court.

                                 Sentencing

      Finally, Appellant contends that his PWID and possession offenses

should have merged for sentencing purposes. Both the Commonwealth and

the trial court agree and conclude that a remand for resentencing is

appropriate. Commonwealth’s Brief at 21; TCO at 6. In these circumstances,

no further analysis is required. Therefore, we vacate Appellant’s judgment of

sentence and remand for resentencing.

      Judgment of sentence vacated in part, affirmed in part.            Case

remanded for resentencing. The Prothonotary of this Court is hereby ordered

to return the record to the trial court. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2020




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