Com. v. Moritz, E.

• Court: Superior Court of Pennsylvania
• Decided: July 8, 2016
• Docket: 1858 EDA 2015
• Status: Unpublished

Opinion

J-S51020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

ERICH MORITZ

Appellant No. 1858 EDA 2015

Appeal from the Judgment of Sentence June 1, 2015 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0013333-2013

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED JULY 08, 2016

Erich Moritz appeals from the judgment of sentence imposed by the

Court of Common Pleas of Philadelphia County following his conviction for

drug-related offenses. Upon careful review, we affirm.

The trial court set forth the factual and procedural history of the case

as follows:

On October 4, 2013, Officer James Wade was at the 2900 block of Cottman Avenue, Philadelphia, PA. He and his fellow officers were conducting surveillance for illegal narcotics activity in the area in response to numerous complaints. While sitting in a parking lot of a 7-11, Moritz pulled up and parked a “car length” from where Officer Wade was parked. Officer Wade overheard Moritz say into a cell phone, “How many do you want.” Moritz then drove out of the parking lot and proceeded eastbound on Cottman Avenue. Officer Wade instructed backup officers to follow Moritz. Based on his seventeen years of police training ____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S51020-16

and experience, Officer Wade believed that Moritz was involved in a narcotics transaction.

Officer Stephen Burgoon followed Moritz as he parked in an alley by the 3500 block of Englewood Street. Officer Burgoon parked approximately 50 feet away from Moritz. Although it was nighttime, Moritz’s car was illuminated by the interior dome light. Officer Burgoon observed a male, later identified as Owen Burke, approach the passenger side of Moritz’s car and hand Moritz U.S. currency. Moritz then handed a small object to Burke and drove away. Officer Burgoon followed as Moritz drove back to the 7-11. Based on Officer Burgoon’s observations, and ten years of experience as a police office, Officer Burgoon believed that Moritz had engaged in a drug transaction with Burke, and was on his way to another transaction.

Meanwhile Officer Burgoon’s partner, Officer Konstantinos Apostolou, stopped Burke. Officer Apostolou searched Burke and recovered a clear baggy with a white-chunky substance, alleged crack cocaine.

Based on information he received from Officers Wade and Burgoon, Sergeant Michael Cerruti stopped Moritz once Moritz pulled into the 7-11. Moritz was arrested, and Sergeant Cerruti searched Moritz’s automobile and person. He recovered seven bags containing narcotics. Four bags contained cocaine and three bags contained crack cocaine. Additionally, Sergeant Cerruti recovered $2,167.00 and two cell phones.

This Court denied the motion to suppress, finding that the police had conducted a thorough investigation prior to the seizure and search of Moritz, which coupled with their years of experience and training, was sufficient to establish probable cause that Moritz was selling drugs.

Trial Court Opinion, 9/9/15, at 1-3.

Following a non-jury trial, Moritz was convicted of possession with

intent to deliver/manufacture,1 criminal use of a communication facility,2 and

____________________________________________

1 35 P.S. § 780-113(a)(30).

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intentional possession of a controlled substance.3 He was sentenced to four

years of probation plus drug and alcohol treatment. This timely appeal

followed, in which Moritz raises the following issue for our review:

Did the trial court err when it denied the defense motion to suppress physical evidence as the Philadelphia Police had neither reasonable suspicion nor probable cause to stop and search Appellant Erich Moritz, as well as his automobile, and seize physical evidence, specifically crack cocaine and $2,167.00 in United States currency?

Appellant’s Brief, at 2.

When a suppression court’s finding of facts are supported by the

record, an appellate court will reverse only if there is an error in the legal

conclusions drawn from those findings. Commonwealth v. Hill, 874 A.2d

1214, 1216 (Pa. Super. 2005). The appellate court is thus bound by the

lower court’s factual findings at the suppression hearing. Commonwealth

v. McClease, 750 A.2d 320, 323-34 (Pa. Super. 2000).

Probable cause “must be based on the totality of the circumstances.”

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

Court has set forth relevant factors in determining whether probable cause

to arrest a defendant for drug dealing exists. These include the time of the

drug sale, whether the location is established as one where drug-related

activity normally transpires, and the specific experience that the police _______________________ (Footnote Continued) 2 18 Pa.C.S. § 7512(a). 3 35 P.S. § 780-113(a)(16).

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officer has in observing narcotics trafficking. Commonwealth v. Williams,

2 A.3d 611, 616 (Pa. Super. 2010).

Probable cause justifying an arrest exists when there are sufficient

facts and circumstances to make a reasonable, cautious police officer believe

that the suspect has committed or is committing a crime. Wells, 916 A.2d

at 1195. “A police officer’s experience may be fairly regarded as a relevant

factor in determining probable cause.” Commonwealth v. Thompson, 985

A.2d 928, 936 (Pa. 2009). However, the officers involved must establish a

nexus between their experience and the observations they make. Id. at

935.

In Thompson, the Supreme Court noted that in reviewing a

determination of probable cause, it relied “on the fact that the transaction at

issue occurred in the nighttime hours, on a street, in a neighborhood the

police department selected for the ‘Operation Safe Street’ program.” Id. at

936-37. Here, the transaction between Moritz and Burke began at 10:00

p.m. in the parking lot of a 7-11 located within an area that was the subject

of numerous drug-related complaints. The sale was later completed in an

alleyway, after which Moritz returned to the 7-11. The timing and location

of the sale indicate that a narcotics transaction was taking place.

Additionally, the police officers involved had experience with numerous

narcotics cases. Officer Wade had been a Philadelphia Police Officer for

approximately seventeen years, one and one-half of which had been as a

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member of the 15th District Narcotics Enforcement Team (NETS), and had

conducted approximately twenty narcotics arrests in the few blocks

surrounding the 7-11. Officer Burgoon had been a Philadelphia Police Officer

for ten years, with one year on the NETS team. He testified that he had

seen narcotics transactions similar to the interaction between Moritz and

Burke hundreds of times.

Here, while Mortiz was in his car, Officer Wade overheard him say on

his cell phone, “how many do you want?” N.T. Suppression Hearing and

Trial, 5/26/15, at 8. Officer Wade testified that over his career he had heard

this phrase used twenty to twenty-five prior times in relation to a sale of

narcotics. Id. at 9-10. Accordingly, Officer Wade established a connection

between his experience “and the issue at hand.” Thompson, supra at 935.

Officer Wade further noted that immediately after Moritz uttered this phrase,

he drove his car out of the parking lot. N.T. Suppression Hearing and Trial,

supra at 10. Officer Burgoon then witnessed an interaction between Moritz

and Burke that was similar if not identical to hundreds of other narcotics

sales the officer had seen. Finally, Officer Apostolou found a bag of crack

cocaine on Burke’s person moments after the transaction had been

consummated. Given the totality of the circumstances along with the

officers’ knowledge of narcotics trafficking, the trial court properly concluded

that probable cause for Moritz’s arrest existed.

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Moritz also contends that the warrantless search of his automobile

incident to his arrest was illegal. This argument similarly fails. “The

prerequisite for a warrantless search of a motor vehicle is probable cause to

search; no exigency beyond the inherent mobility of a motor vehicle is

required.” Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014). Officer

Wade had heard Moritz arrange the sale with Burke while talking on a mobile

device in his automobile, and Officer Burgoon witnessed the exchange occur

through the front window of the vehicle. Thus, probable cause existed to

believe that the automobile either contained more narcotics, or at a

minimum, contained the illegal proceeds from the recently completed sale to

Burke.

Moritz further argues that the court should have suppressed the

narcotics and the money that were found inside a silver box inside the

vehicle. However, where there is probable cause to search a vehicle for

contraband, officers may search any containers found therein where

contraband could be concealed. In re I.M.S., 124 A.3d 311, 316 (Pa.

Super. 2015). Therefore, because the officers had the right to search the

car, the evidence found in the silver box was legally seized.

Moritz has failed to show that the police lacked probable cause to

search his person and automobile. Accordingly, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/8/2016

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