Commonwealth v. Williams

2 A.3d 611, 2010 Pa. Super. 141, 2010 Pa. Super. LEXIS 1616, 2010 WL 3034504
Superior Court of Pennsylvania·Decided August 4, 2010·No. 1046 WDA 2007·Published·Cited by 40 cases

Opinions

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.

[614] 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 (“Cl”). The Cl advised Officer Nolan that within the preceding few minutes, he or she had observed Appellant seated in a black Expedition in the BOO block of Myrtle Street selling bags of crack cocaine. Officer Nolan, whom the suppression court found credible, related that the Cl had been a source of reliable information for ten years. As a result of prior facts received from the Cl, 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 800 block of Myrtle Street. On the night of March 13, 2006, after receiving the telephone call from the Cl, Officer Nolan immediately proceeded to Myrtle Street in an unmarked cruiser and requested backup 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 [615] 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.

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Commonwealth v. Williams, 2 A.3d 611, 2010 Pa. Super. 141, 2010 Pa. Super. LEXIS 1616, 2010 WL 3034504 (Pa. Ct. App. 2010).

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