In the Interest of: O.T., a Minor

• Court: Superior Court of Pennsylvania
• Decided: October 18, 2017
• Docket: 3802 EDA 2016
• Status: Unpublished

Opinion

J-S57040-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: O.T., a Minor : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : APPEAL OF: O.T., a Minor : No. 3802 EDA 2016

Appeal from the Dispositional Order November 9, 2016 in the Court of Common Pleas of Philadelphia County, Juvenile Division, No(s): CP-51-JV-0000319-2016

BEFORE: PANELLA, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017

O.T., a minor, appeals from the dispositional Order entered following

his adjudication of delinquency for possession of a controlled substance. 1

We vacate and remand for further proceedings.

The juvenile court set forth the relevant factual and procedural history

in its Opinion, which we adopt as though fully set forth herein. See Juvenile

Court Opinion, 3/17/17, at 1-4.2

O.T. now presents the following issues for our review:

A. Did not the [juvenile] court err in denying O.T.’s [M]otion to suppress marijuana and United States currency recovered

1 See 35 P.S. § 780-113(a)(16) (prohibiting “[k]nowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this act, … unless the substance was obtained directly from, or pursuant to, a valid prescription order or order of a practitioner, or except as otherwise authorized by this act.”).

2We additionally note that the total weight of the marijuana found on O.T.’s person was approximately 6 grams. See Juvenile Court Opinion, 3/17/17, Exhibit D (Seizure Analysis). J-S57040-17

from him[,] where he was stopped, arrested and subjected to a search without reasonable suspicion or probable cause that criminal activity was afoot?

B. Did not the [juvenile] court err in [adjudicating] O.T. [delinquent] of possession of a controlled substance[,] as the evidence was insufficient to [adjudicate] O.T. [delinquent] of [this offense], in violation of 35 P.S. § 780-113(a)(16), in that O.T. was also charged with possession of a small amount of marijuana[,] in violation of 35 P.S. § 780- 113(a)(31)[,3] and, as the latter offense was the more specific offense, the conduct enumerated by the more specific offense was excluded from the more general offense[,] so that O.T. could not be adjudicated delinquent of the more general offense?

Brief for Appellant at 4 (footnote added).

In his first issue, O.T. argues that the trial court erred by denying his

Motion to suppress, where “the facts and circumstances, combined with the

[arresting] officer’s [Officer Patrick Greider (hereinafter, “Officer Greider”)]

knowledge and experience, fell short of establishing probable cause.” Id. at

10.

This Court’s standard of review of dispositional orders in juvenile proceedings is well-settled. The Juvenile Act grants broad discretion to juvenile courts in determining appropriate dispositions. In addition, this Court will not disturb the juvenile court’s disposition absent a manifest abuse of discretion.

… When reviewing a suppression order[,] an appellate court is required to determine whether the record supports the

3 Subsection 780-113(a)(31) provides that “[n]otwithstanding other subsections of this section, [the following acts are prohibited:] (i) the possession of a small amount of marihuana only for personal use; (ii) the possession of a small amount of marihuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marihuana but not for sale.” 35 P.S. § 780-113(a)(31); see also id. (defining a “small amount of marihuana” as 30 grams or less).

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suppression court’s factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.

In re J.G., 145 A.3d 1179, 1184-85 (Pa. Super. 2016) (citations and

paragraph breaks omitted).

Here, O.T. was subjected to a warrantless arrest, which must be

supported by probable cause. Id. at 1185. “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. Thompson, 985 A.2d 928, 931 (Pa. 2009) (citation and

quotation marks omitted); see also id. (stating that “we require only a

probability, and not a prima facie showing, of criminal activity.” (emphasis in

original, citation and quotation marks omitted)). We apply a totality of the

circumstances test in determining whether probable cause exists. Id.; see

also Commonwealth v. Colon, 777 A.2d 1097, 1100-01 (Pa. Super. 2001)

(stating that “all of the circumstances surrounding a transaction between

citizens are to be considered in determining whether law enforcement

officers have acted arbitrarily or have acted on the basis of probable cause.”

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(citation omitted)). Additionally, “[w]hen police observe citizens engaged in

seemingly suspicious transactions on public streets, the determination of

whether probable cause exists can be a difficult one.” Colon, 777 A.2d at

1100.

In support of his claim that Officer Greider lacked probable cause, O.T.

argues that “Officer Greider had only been on the police force for six months

when he arrested O.T.[,]” and “had received no specific training … [on] how

to recognize a drug transaction.” Brief for Appellant at 14; see also id. at

14-15 (asserting that “Officer Greider had only made two arrests in his

career prior to arresting O.T., and only one of those arrests was for [a drug

possession offense]”). O.T. further contends that “the designation of the

location in question as a ‘high crime, high narcotics area’ is dubious[,]”

particularly where such designation was based on “the word of a brand new

officer typically assigned to patrol SEPTA stations.” Id. at 15. Finally, O.T.

points out that Officer Greider did not observe O.T. engage in more than one

drug transaction, and was not responding to a citizen’s complaint or an

informant’s tip. Id. O.T. urges that “th[e Superior] Court has reiterated

that an officer’s observation of a lone transaction[,] by itself[,] does not

create probable cause; rather, an officer’s experience is necessary to

determine whether probable cause existed.” Id. at 15-16 (emphasis in

original) (citing Commonwealth v. Delvalle, 74 A.3d 1081, 1085 (Pa.

Super. 2013)).

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In its Opinion, the juvenile court (1) addressed O.T.’s suppression

challenge; (2) adeptly discussed the cases cited by O.T., and the law

concerning probable cause in drug-trafficking cases with an observed hand-

to-hand transaction on a public street; and (3) determined that Officer

Greider possessed probable cause under the totality of the circumstances.

See Juvenile Court Opinion, 3/17/17, at 5-8. The juvenile court’s analysis is

sound and supported by the record, and we agree with its legal

determination. See id.; see also Commonwealth v. Lawson, 309 A.2d

391, 394 (Pa. 1972) (noting that, in analyzing whether probable cause to

arrest exists following an observed hand-to-hand exchange of small objects

for money, the location in which the seller concealed the contraband on his

or her person is important, and holding that police had probable cause to

arrest the defendant where, inter alia, she stored the small objects in her

“bosom”). Accordingly, we affirm on this basis as to O.T.’s first issue, see

Juvenile Court Opinion, 3/17/17, at 5-8, with the following addendum.

We are unpersuaded by O.T.’s claim that the purported lack of

experience of Officer Greider particularly undermined the juvenile court’s

determination that the Officer possessed probable cause. In this regard, we

agree with the juvenile court that “[j]ust as overwhelming narcotics

experience cannot[,] in [] itself[,] sway the probable cause analysis, lack of

experience cannot be deemed as a disqualifying factor in the probable cause

analysis.” Juvenile Court Opinion, 3/17/17, at 8; accord Commonwealth

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v. Banks, 658 A.2d 752, 753 (Pa. 1995) (acknowledging that although an

officer’s lack of specific narcotics training can be a relevant factor in a

probable cause analysis concerning an observed hand-to-hand drug

transaction on a public street, the court must consider the totality of the

circumstances). We further agree with the juvenile court that Officer

Greider had “sufficient experience to provide a clear lens,” where, inter alia,

the Officer’s “testimony described sufficient knowledge and experience

regarding the area, the practice of drug dealers secreting items within their

pants, and the other details of this particular transaction.” Juvenile Court

Opinion, 3/17/17, at 8. Accordingly, we discern no abuse of discretion or

error of law by the juvenile court in denying the Motion to suppress, and

O.T.’s first issue thus lacks merit.

In his second issue, O.T. contends that the juvenile court erred in

adjudicating him delinquent of possession of a controlled substance, under

35 P.S. § 780-113(a)(16) (sometimes referred to as “K&I possession”),

instead of possession of a small amount of marijuana, under 35 P.S. § 780-

113(a)(31) (sometimes referred to as “SAM”). See Brief for Appellant at 9,

18-23. Specifically, O.T. asserts that because the amount of marijuana that

he possessed was less than 30 grams,

[t]he [juvenile] court erred in [adjudicating] O.T. [delinquent] of K&I [possession] because the statutory definition of SAM precludes a conviction for K&I [possession] where an individual possesses less than 30 grams of marijuana. Additionally, the [juvenile] court could only have [adjudicated] O.T. [delinquent] of SAM because it was the more specific offense.

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Id. at 9.

Although O.T.’s issue is couched in terms of sufficiency of the

evidence, the resolution of this issue actually requires us to interpret

statutes. See Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa. Super.

2012). Accordingly, “because statutory interpretation implicates a question

of law, our scope of review is plenary and our standard of review is de

novo.” Id.

In support of his claim, O.T. relies on this Court’s decisions in

Commonwealth v. Gordon, 897 A.2d 504 (Pa. Super. 2006), and

Commonwealth v. Tisdale, 100 A.3d 216 (Pa. Super. 2014). See Brief

for Appellant at 22-23. This Court previously summarized these decisions as

follows:

In Gordon, the defendant was found to be in possession of 8.75 grams of marijuana. Out of this one incident, he was charged with: (1) violation of 35 P.S. § 780-113(a)(31), proscribing the possession of a small amount of marijuana, and (2) violation of the general proscription against possession of a controlled substance as defined in 35 P.S. § 780-113(a)(16). The trial court found him guilty of the more serious of these charged offenses[, i.e., section 780-113(a)(16),] which carried with it a harsher penalty.[FN]

[FN] Anyone who violates [section] 780-113(a)(16) is guilty of a misdemeanor and will be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding $5,000. Anyone who violates Clause (31) of Subsection (a) is guilty of a misdemeanor and will be sentenced to imprisonment not exceeding 30 days, or to pay a fine not exceeding $500, or both.

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This [C]ourt held that the legislature, by including Subsection (31) in Section 780-113 of the proscribed conduct section of the Drug Act, clearly separated out the specific crime of possession of a small amount of marijuana, and created a “graduated system of penalties” that imposes far heavier punishment for traffickers and lesser sanctions for casual users of marijuana. … Gordon, 897 A.2d at 509.

We remanded the matter for the trial court to sentence the defendant under the [SAM] statute, as the legislature clearly intended that a small amount of marijuana be separately and less severely punishable than possession of a controlled substance.

Similarly, in Tisdale, the defendant was arrested with 8.64 grams of marijuana[, which was separately packaged in 12 small plastic baggies]. He was convicted of [K&I] possession under Subsection (16). He argued on appeal he should have been convicted for possession of a small amount of marijuana under the more specific Subsection (31). We agreed that the legislature intended to provide a graduated system of penalties and that when both Subsections (16) and (31) apply, conviction properly rests on the specific charge found at Subsection (31), small amount of marijuana. Tisdale, 100 A.3d at 219.

Commonwealth v. Kriegler, 127 A.3d 840, 844-45 (Pa. Super. 2015).

Citing to Gordon, the juvenile court stated in its Opinion that it agreed

with O.T. See Juvenile Court Opinion, 3/17/17, at 9 (“conced[ing] that the

more specific and appropriate charge was [SAM].”).

Relying on 42 Pa.C.S.A. § 9303,4 the Commonwealth asserts that “the

‘specific/general’ rationale of Tisdale,[] 100 A.3d at 218-[]21 (citing three

4 Section 9303 provides that “[n]otwithstanding … any other statute to the contrary, where the same conduct of a defendant violates more than one criminal statute, the defendant may be prosecuted under all available statutory criminal provisions without regard to the generality or specificity of the statutes.” 42 Pa.C.S.A. § 9303 (emphasis added).

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cases that pre-date Section 9303), is wrong and, despite [O.T.’s] argument

to the contrary, this Court is not bound by [Tisdale] because it has been

eliminated by statute.” Commonwealth’s Brief at 19 (emphasis in original).

We are unpersuaded by the Commonwealth’s argument. Section 9303

became effective in 2003, and Tisdale was decided in 2014, which remains

good law. See Kriegler, 127 A.3d at 844, 845 (noting the abrogation of the

“general/specific rule of statutory construction” by section 9303, but also

citing Tisdale as being good law). As such, we are bound by our holding in

Tisdale, that where both K&I possession and SAM apply, a conviction for

SAM is proper. See Tisdale, 100 A.3d at 219.5

Based upon the foregoing, though we affirm the juvenile court’s denial

of O.T.’s Motion to suppress, we vacate the Dispositional Order and sentence

imposed for K&I possession, and remand to the juvenile court for entry of an

5 We are further unpersuaded by the Commonwealth’s argument that, because O.T. possessed a number of individually-wrapped plastic baggies containing marijuana, he could not be adjudicated delinquent of the lesser offense of SAM, as he did not meet the requirement of the SAM statute that the marijuana possessed was not for sale. See Commonwealth’s brief at 17- 18. Like O.T., the defendant in Tisdale possessed several small, individually-wrapped plastic baggies containing marijuana, and this Court held that the defendant should have been convicted of SAM, not K&I possession. See Tisdale, 100 A.3d at 218.

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adjudication of delinquency solely on the charge of SAM, and for imposition

of a new sentence.6

Dispositional Order vacated. Case remanded for action consistent with

this Memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/18/17

6 We acknowledge that the juvenile court stated in its Opinion that “O.T.’s probationary sentence[, i.e., imposed on the K&I possession charge,] is the same as he would have received[] if O.T. had been correctly adjudicated under SAM, as opposed to K&I [possession].” Juvenile Court Opinion, 3/17/17, at 9. Nevertheless, we deem it appropriate to remand for resentencing.

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