Com. v. Moritz, E. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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*
Retired Senior Judge assigned to the Superior Court.
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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
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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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