Commonwealth Of Pa. v. Williams

• Decision Date: 04 August 2010
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Rosha Charles WILLIAMS, Appellant.
• Court: Pennsylvania Superior Court

2 A.3d 611

COMMONWEALTH of Pennsylvania, Appellee

v.Rosha Charles WILLIAMS, Appellant.

Superior Court of Pennsylvania.

Argued Sept. 24, 2009.

Filed Aug. 4, 2010.

COPYRIGHT MATERIAL OMITTED.

John J. Mead, Erie, for appellant.

Mark W. Richmond, Assistant District Attorney, Erie, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., MUSMANNO, ORIE MELVIN ^* , BENDER, BOWES, PANELLA, DONOHUE, SHOGAN, and ALLEN, JJ.

OPINION BY BOWES, J.:

On appeal, Rosha Charles Williams assails the propriety of the trial court's refusal to suppress cash found on his person and drugs discovered in a vehicle from which he was selling cocaine. ¹ We affirm.

At the September 1, 2006 suppression hearing, Erie Police Officer Michael Nolan testified that he had fourteen years of experience as a police officer, was assigned to the Drug and Vice Unit of the police department for eleven years, and was commander of that unit for the preceding two years. On March 13, 2006, he returned home from work for the day when he received a telephone call from a confidential informant (“CI”). The CI advised Officer Nolan that within the preceding few minutes, he or she had observed Appellant seated in a black Expedition in the 300 block of Myrtle Street selling bags of crack cocaine. Officer Nolan, whom the suppression court found credible, related that the CI had been a source of reliable information for ten years. As a result of prior facts received from the CI, the officer obtained convictions of over twenty individuals for felony drug violations, and seized over $100,000 in drug proceeds and in excess of ten kilograms of cocaine or crack cocaine.

Officer Nolan knew Appellant from prior contact with him, was aware that he drove a black Expedition, and had received numerous complaints that Appellant was conducting drug-related activity in the 300 block of Myrtle Street. On the night of March 13, 2006, after receiving the telephone call from the CI, Officer Nolan immediately proceeded to Myrtle Street in an unmarked cruiser and requested back-up assistance. He observed Appellant in a black Expedition that was parked in the 300 block of Myrtle Street.

Officer Nolan drove past Appellant and parked about one and one-half blocks away from Appellant's vehicle. He then conducted unenhanced visual surveillance. During a twenty-minute time frame, Officer Nolan observed four individuals separately approach Appellant's vehicle, interact with Appellant, and viewed what they were doing with their hands.

While one person merely conversed with Appellant, who was located in the driver's seat of the car, the three others placed their hands momentarily inside Appellant's vehicle. Their “activity was very consistent with retrieving or handing items to and from someone.” N.T. Pre-Trial Hearing, 9/1/06, at 8. Officer Nolan continued that he had “conducted hundreds of hours of surveillance and I've observed probably close to fifty drug deals take place during surveillance, and this activity was consistent with that.” Id. Officer Nolan also completed a computer check of Appellant's driver's license, which was suspended.

After the four interactions, Appellant drove away from Myrtle Street, and Officer Nolan followed him. Officer Nolan stopped behind Appellant's vehicle as Appellant, who lived nearby, pulled into his driveway. Officer Nolan activated his lights, approached Appellant, patted him down, and discovered $600 in cash in his pocket. Appellant was handcuffed and transported to the Erie Police Department.

Appellant's black Expedition was then driven by another police officer to the police department garage so that the K-9 drug dog could conduct a canine sniff of the vehicle. While the Expedition was driven to the police station, no search was made of the vehicle, and no evidence was recovered. When the K-9 made a positive indication to the driver's side of the Expedition, Officer Nolan shined his flashlight at that location and observed a plastic baggie protruding from the roof liner near the driver's side. Officer Nolan delineated, “Plastic baggies are overwhelmingly the most common method to package drugs of all types, but specifically crack cocaine in particular.” Id. at 11. Thereafter, Officer Nolan obtained a search warrant for the Expedition and discovered seven plastic baggies containing crack cocaine, a knife, and two cellular phones.

As a result of this investigation, Appellant was charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and driving with a suspended license. After litigating an unsuccessful motion to suppress the evidence, he was convicted of all charges. On May 24, 2007, Appellant was sentenced to three to eight years imprisonment. A panel of this Court affirmed, and we then granted en banc review. Appellant raises two challenges to the suppression court's ruling:

1. Whether the Court of Common Pleas erred and/or abused its discretion in denying the Appellant's Motion to Suppress Evidence based on his illegal arrest, and allowing into evidence $600.00 cash found on the appellant's person, and crack cocaine found in his vehicle, at trial.

2. Whether the Court of Common Pleas erred and/or abused its discretion in denying the Appellant's Motion to Suppress Evidence based on the illegal seizure of his vehicle from his driveway, and allowing into evidence crack cocaine subsequently seized from his vehicle.

Appellant's brief at 7.

Preliminarily, we note that Appellant's Pa.R.A.P.1925(b) statement was untimely filed; however, the trial court overlooked its tardy nature and elected to address the issues on the merits. Thus, we decline to find waiver. Commonwealth v. Burton, 973 A.2d 428, 430 (Pa.Super.2009) ( en banc ).

We note our well established standard of review:

“Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We must consider only the evidence of the prosecution and so much of the evidence of the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1134 (2007), cert. denied, 552 U.S. 894, 128 S.Ct. 211, 169 L.Ed.2d 158 (2007). Those properly supported facts are binding upon us and we “may reverse only if the legal conclusions drawn therefrom are in error.” Id.

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

The first issue we address is whether Officer Nolan had probable cause to arrest and search Appellant after Appellant exited his car and was walking toward his residence. 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.” Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988, 990 (1991). The question we ask is not whether the officer's belief was “correct or more likely true than false.” Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Rather, we require only a “probability, and not a prima facie showing, of criminal activity.” Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (citation omitted) (emphasis supplied). In determining whether probable cause exists, we apply a totality of the circumstances test. Commonwealth v. Clark, 558 Pa. 157, 735 A.2d 1248, 1252 (1999) (relying on Gates, supra ).

Id. (emphases in original).

Thompson provides guidance herein. In that case, a plainclothes police officer was patrolling a high crime area when he observed the defendant perform what the officer concluded was a drug transaction with another man. Defendant was arrested, and drugs were discovered on his person. The issue addressed by our Supreme Court was whether the police had probable cause to arrest the defendant despite the fact that the police officer had not viewed the objects exchanged between the defendant and the other individual.

In Thompson, the officer concluded that drugs had been sold based upon his narcotics-related experience, the location of the activity in a high crime area, and the manner in which the transaction was conducted. The officer pointed to specific information which established that the area in question was one where narcotics were sold regularly. He also delineated the extensive nature of his background and training in detecting narcotics activity. Finally, the officer confirmed that he made numerous drug arrests based upon personal observation of drug transactions that were identical to the one made by the defendant. Our Supreme Court held that the officer had probable cause to arrest the defendant.

In reaching its decision, the Court articulated a list of factors that are pertinent to the determination of whether probable cause for arrest for a drug sale has coalesced: the time of the drug sale, whether the drug sale was made on the street, the number of drug sales, where the drug items are kept, whether the location is established as one where drug-related activity normally transpires, the specific experience that the police officer has in observing narcotics trafficking, and the movements and mannerisms of the parties involved in the exchange. The Court stated that a police officer should provide specific information establishing both that the area is one where drug-related activity occurs and that he has the precise experience necessary to recognize a drug sale. Our Supreme Court ruled that officers who have specialized training in drug crimes are able to recognize criminal activity in that respect; however, generalized police experience is not as persuasive in the probable cause analysis. Thus, a police officer's cursory...