Com. v. Thomas, W.

• Court: Superior Court of Pennsylvania
• Decided: October 17, 2025
• Docket: 2650 EDA 2024
• Status: Unpublished

Opinion

J-S31025-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WADI THOMAS : : Appellant : No. 2650 EDA 2024

Appeal from the Judgment of Sentence Entered August 29, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001243-2024

BEFORE: PANELLA, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 17, 2025

Appellant Wadi Thomas appeals from the judgment of sentence entered

in the Philadelphia Court of Common Pleas after the court found him guilty of

Unlawful Sales of Liquor, Conspiracy, Firearms Not to be Carried Without

License, and Person Not to Possess Firearms.1 He challenges the denial of his

suppression motion and the legality of his sentence. After careful review, we

affirm the denial of Appellant’s suppression motion and vacate and remand

for resentencing.

Following an anonymous complaint regarding an illegal speakeasy

operating at what appeared to be an abandoned home located at 2808

Germantown Avenue, Philadelphia police officers assigned to the vice squad

conducted surveillance outside of the building for approximately a month.

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1 47 P.S. § 4-491, 18 Pa.C.S. §§ 903, 6106, and 6105, respectively. J-S31025-25

They observed the building had no signage on the outside and watched as

employees arrived around midnight carrying ice and boxes. Customers

arrived between 12:30 and 1:00 AM. The officers determined that the location

did not have a liquor license.

On February 4, 2024, Police Officer Carin Perez, who since 2019 had

participated in numerous investigations of illegal speakeasies in Philadelphia,

went undercover with her partner to the building around 1:00 AM with back-

up officers outside the building. When Officer Perez and her partner

approached the door to enter the building, a man frisked them outside and

they were then allowed inside the vestibule. Once in the vestibule, they

purchased entry tickets for $20 each from a woman behind a window. Upon

entering the main room of the building, they noticed a security guard named

Purnell wearing all black with a tactical vest and a gun on his hip standing to

the right of the doorway near a DJ. The officers further noticed tables, about

50 customers milling about, and a bar set up at the back of the room with two

people acting as bartenders. Officer Perez and her partner twice bought drinks

from the bar and observed Purnell and Appellant, also dressed in black,

appearing to “monitor” the customers, i.e., “walking around from back to front

looking at everyone.” N.T. Supp. Hr’g, 5/3/24, at 9-10. Based on her

experience, Officer Perez determined that Appellant and Purnell were working

as security guards for the establishment. Officer Perez took photos of

Appellant, Purnell, and the other employees and sent the photos to the back-

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up officers outside the building. After approximately 40 minutes, Officer Perez

called for the back-up officers to come inside to effectuate arrests.

When the arresting police officers entered the building, Appellant

attempted to run out of the building, but Police Officer Aliyah Glover

recognized him from Officer Perez’s photograph and stopped him. After he

refused to take his hands out of his pockets, Officer Glover patted him down

and felt a metal object in a satchel that was strapped across his body and

recovered a firearm. Other police officers determined that Appellant did not

have a license to carry a firearm and was, in fact, a person not to possess.

The Commonwealth arrested him and charged him with the above offenses.

Appellant filed a suppression motion, alleging that he was arrested

without probable cause. On May 3, 2024, the court held a hearing on the

motion, at which Officers Perez and Glover testified. The court denied the

suppression motion.

Appellant proceeded to a waiver trial, after which the court found him

guilty of the above offenses. The court deferred sentencing pending a pre-

sentence investigation.

On August 29, 2024, the court sentenced Appellant to 11½ to 23

months’ incarceration plus four years’ probation for violation of Section 6105,

Persons Not to Possess. The court also imposed a term of five years’ probation

for the conspiracy conviction and five years’ probation for the Section 6106

violation. The court ordered the probationary terms to be served concurrently.

The court imposed no further penalty for the unlawful sales of liquor.

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Appellant timely appealed. Both the trial court and Appellant complied

with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

1. Did police have probable cause to arrest [Appellant] for conspiracy and the underlying charge of unlawful sales of liquor after observing him walking and looking around an establishment that was illegally selling alcohol?

2. Did the trial court err in grading [Appellant’s] conviction for conspiracy as a felony of the third degree at sentencing and imposing 5 years’ probation where the conspiracy was related to his conviction for unlawful sales of liquor, 47 P.S. §4-491, which is an ungraded misdemeanor that carries a maximum penalty of one year imprisonment?

Appellant’s Br. at 3.

Appellant first argues that his arrest was not supported by probable

cause because Officer Perez merely observed Appellant walking and looking

around the establishment on the night of the raid. Appellant’s Br. at 12. He

contends that his arrest was “based on no more than a hunch that he was a

co-conspirator to the unlawful sales of liquor,” and Officer Perez’s testimony—

that she had identified Appellant as a security guard because she had

participated in hundreds of speakeasy investigations and had observed the

individuals working security in them—“was cursory at best.” Id. at 12-13.

We review the suppression court’s decision to deny a motion to suppress

to determine “whether [its] factual findings are supported by the record and

whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018)

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(citation omitted). “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.” Commonwealth v. Freeman,

150 A.3d 32, 34 (Pa. Super. 2016) (citation omitted). We are bound by the

suppression court’s factual findings where they are supported by the record,

and we may reverse only if the court’s legal conclusions are erroneous. Id. at

35. Finally, “[i]t is within the suppression court's sole province as factfinder

to pass on the credibility of witnesses and the weight to be given their

testimony.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. Super.

2013) (citation omitted).

A lawful warrantless arrest must be based on probable cause.

Commonwealth v. Hicks, 208 A.3d 916, 927 (Pa. 2019). “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.”

Commonwealth v. Burno, 154 A.3d 764, 781 (Pa. 2017) (quotation marks

and citations omitted). “The question we ask is not whether the officer's belief

was correct or more likely true than false. Rather, we require only a

probability, and not a prima facie showing, of criminal activity.” Id. (quotation

marks and citations omitted) (emphasis added).

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“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.” Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super.

2007).

Here, the suppression court made the following findings of fact on the

record:

I find that Officer Perez [ ] is an experienced officer in the area of Vice. She has conducted hundreds of or numerous . . . investigations of alleged illegal speakeasies.

In this case, she had observed the building that was ultimately raided for between a month and a month-and-a-half. She described it as something that looked like it was abandoned from the outside and that they had made observations that led them to believe that it was a speakeasy on the day in question[.]

She testifies, and I believe her[,] that she went in there and she paid to go in there and she was served alcohol. She also then testified that she observed [Appellant] walking back and forth, and monitoring the room; meaning keeping an eye on people and otherwise making sure that there are no problems in the area. Based on her experience of observing security in speakeasies before[,] she believed that that is what he was doing. I believe that that is reasonably trustworthy information to warrant a belief that this defendant was in fact participating in the operation of the speakeasy. As such, I find there was probable cause for his arrest.

N.T. Supp. Hr’g at 94-96; see also Tr. Ct. Op., 1/9/25, at 13-15 (reiterating

its findings of fact).

Appellant argues that “the facts and circumstances combined with the

officer’s experience were insufficient to establish probable cause” to arrest him

for participating in a conspiracy to sell liquor illegally. Appellant’s Br. at 12.

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He contends that (1) he “was doing nothing more than any other person in

the establishment who was not visibly serving patrons,” i.e., “walking around

and people watching,” (2) his behavior was not criminal in nature, and (3)

“police arrested him for simply being present in a place where alcohol was

being sold illegally.” Id. at 14-15. He cites Commonwealth v. Thompson,

985 A.2d 928, 935 (Pa. 2009), as instructive for setting “the standard that an

officer’s experience ‘may fairly be regarded as a relevant factor for

determining probable cause.’” Appellant’s Br. at 14 (quoting id. at 935).2

Following our review of the notes of testimony from the suppression

hearing, we conclude that the suppression court’s factual findings are

supported by the record and its legal conclusions drawn from those facts are

correct. The court considered Officer Perez’s experience as one factor in its

review of the totality of the circumstances. Those circumstances included a

complaint of an illegal speakeasy operating from a building that looked

abandoned, prior surveillance of the building showing people going in and out

in the early morning hours, no signage on the outside of the building, no liquor

license associated with the building, Officer Perez’s purchase of alcoholic

drinks poured directly from a bottle carrying a Hennessy label, and her

2 In Thompson, the Pennsylvania Supreme Court affirmed this Court’s determination that the officer’s experience and the other factors provided probable cause to arrest the appellant, reiterating that police officer experience is fairly considered as a factor in a totality of the circumstances analysis in determining the existence of probable cause, so long as there is a “nexus” between the officer’s experience and the arrest. 985 A.2d at 935-36.

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testimony that she believed Appellant was working as a security guard based

on her observations of his behavior and her experience as a vice officer who

had investigated numerous establishments illegally serving alcohol and

observed the security operations in those establishments. 3 As observed in

Burno, we require only a probability, not a prima facie showing, that Appellant

was engaged in criminal activity. 154 A.3d at 781. Accordingly, based on the

totality of the circumstances, we conclude that the suppression court properly

denied Appellant’s motion to suppress.

In Appellant’s second issue, Appellant challenges the court’s imposition

of a sentence of five years’ probation based on its grading the conspiracy

offense as a felony of the third degree. Appellant’s Br. at 17. He notes that

the conspiracy related to the unlawful sale of liquor, an ungraded

misdemeanor, for which the maximum permissible sentence is one year of

imprisonment, and thus his conspiracy conviction should have received no

more than one year of supervision. Id. at 17-18 (citing 47 P.S. § 4-494(a)).

The trial court agrees that it imposed an illegal sentence, acknowledging

that it mistakenly connected the conspiracy conviction to Appellant’s firearms

offense, a third-degree felony, and thus imposed the penalty established by

18 Pa.C.S. § 1103(3). Tr. Ct. Op. at 15. We agree that the court imposed an

illegal sentence for the conspiracy conviction.

3 The suppression court did not reference Officer Glover’s suppression testimony in its findings of fact and conclusions of law.

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18 Pa.C.S. § 905(a) provides that conspiracy offenses carry the same

grading “as the most serious offense which is . . . an object of the conspiracy.”

47 P.S. § 4-494(a) provides that a violation of the Liquor Code is a

misdemeanor that subjects a violator to, inter alia, a minimum sentence of

one month of incarceration and a maximum of three months of incarceration.

See also Commonwealth v. Hoke, 962 A.2d 664, 668 (Pa. 2009) (observing

that the legislature equated conspiracy and other inchoate crimes with the

grades and degrees of the underlying crimes which “means that inchoate

crimes have the same maximum sentences as the underlying crimes to which

they relate”). Thus, when a court imposes probation as an alternative to

incarceration, the length of the term of probation may not exceed the

allowable statutory maximum term for which offender could be confined. 42

Pa.C.S. § 9754(a).

Since Appellant’s liquor code violation carries a maximum term of three

months’ incarceration, the court’s imposition of 5 years’ probation was illegal.

Accordingly, we vacate judgment of sentence and remand to the trial court for

resentencing.

Order denying motion to suppress affirmed. Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

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Date: 10/17/2025

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