Argued, January 13, 2015
[Copyrighted Material Omitted]
Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia County, Criminal Division No.: CP-51-CR-0002313-20128231-CV-2012. Before POWELL, J.
Daniel J. O'Riordan, Philadelphia, for appellant.
Branden J. Albaugh, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
BEFORE: PANELLA, J., LAZARUS, J., and WECHT,
J. Judge Panella joins the opinion. Judge Lazarus files a concurring statement.
This appeal requires that we determine the precise scope of the " collective knowledge doctrine" in Pennsylvania. We conclude that the trial court's application of the doctrine to the facts of Alwasi Yong (" Yong" )'s arrest stretched the rule beyond its breaking point. As a result, the trial court erred in denying Yong's pretrial motion to suppress physical evidence. We reverse the trial court's order denying that motion, and we remand for proceedings consistent with this opinion.
On September 21, 2011, Officer Joseph McCook of the Philadelphia Police Department was conducting narcotics surveillance on the 3200 block of North Fairhill Street in Philadelphia. On that day, Officer McCook used a confidential informant (" CI" ) to conduct a controlled narcotics purchase. Officer McCook observed Yong standing in front of a residence located at 3202 Fairhill Street. The CI approached Yong, had a brief conversation with him, and then handed him $120 in pre-recorded currency. Yong passed the money to his codefendant, Samuel Vega, who then entered the residence and later returned with twelve packets of marijuana. Vega then handed the marijuana to the CI.
On September 22, 2011, police conducted surveillance of the same area, but did not observe Yong. The CI purchased twenty-five packets of marijuana, which were similar to the twelve packets that the CI previously had purchased from Yong and Vega. However, the record does not disclose who sold the marijuana to the CI on September 22, 2011. See Notes of Testimony Suppression (" N.T.S." ), 4/17/2013, at 16 (" [T]here was a transaction. I'm not sure if it was with Vega or not." ).
On September 23, 2011, the police continued their narcotics surveillance in the same area. Officer McCook observed
Yong and Vega in front of 3202 Fairhill Street. Linwood Fairbanks, an undercover narcotics officer, approached Vega and handed him $40 in pre-recorded currency. Vega then walked over to a nearby vacant lot, retrieved something from the ground, and returned with eight packets of marijuana, which he gave to Officer Fairbanks.
Approximately ten minutes after this transaction, police executed a search warrant on 3202 North Fairhill Street. When police entered the home to execute the search warrant, Yong was standing in the first-floor living room. Without being prompted to do so by any other officer, and without knowing that other officers had observed Yong's prior drug activity, Officer Gerald Gibson immediately arrested Yong. Officer Gibson discovered a loaded .38 revolver concealed under Yong's waistband.
As a result of these events, Officer McCook filed a criminal complaint charging Yong with various drug and firearm offenses. On September 7, 2012, Yong filed an omnibus pretrial motion seeking to suppress the physical evidence obtained from the search of his person. Therein, Yong argued that Officer Gibson had neither reasonable suspicion to perform a Terry frisk, nor probable cause to arrest and search him.
On April 17, 2013, the trial court held a hearing on Yong's motion to suppress. The Commonwealth's sole witness, Officer McCook, testified that he personally observed Yong accept money from the CI on September 21, 2011. Officer McCook further testified that Yong then handed the money to Vega, who gave the CI twelve packets of marijuana. Officer McCook also testified that, throughout his eighteen-year career as a Philadelphia Police Officer, he had observed " hundreds" of narcotics transactions where one participant accepts the money and then hands it off to a co-conspirator. N.T.S. at 12.
Officer Gibson did not testify at the suppression hearing. Officer McCook testified that he observed Yong participate in what he believed to be a narcotics transaction on September 21, 2011. Officer McCook further testified that Officer Gibson arrested and searched Yong on September 23, 2011 when police executed the search warrant on 3202 North Fairhill Street. While Officer McCook averred that he was present when Officer Gibson recovered the firearm from Yong's waistband, he stated that Officer Gibson arrested Yong " [j]ust as [he] was going inside." Id. at 18. Officer McCook explained that " there were six or seven, maybe eight" officers executing the search warrant, and that he was " towards the rear" as they entered the home. N.T.S. at 17. Officer McCook did not testify that he informed Officer Gibson of Yong's role in the narcotics transaction on September 21, 2011, nor did Officer McCook testify that he instructed Officer Gibson to arrest and/or search Yong.
At the conclusion of the hearing, Yong argued that his arrest was unsupported by probable cause because the Commonwealth failed to establish that " anyone spoke to Officer Gibson and told him what they had seen on the 21st." Id. at 19. The trial court denied Yong's motion to suppress, reasoning that Officer Gibson possessed sufficient probable cause to arrest Yong because Officer McCook's knowledge could be imputed to all of the officers who were executing the search warrant.
On April 22, 2013, Yong proceeded to a jury trial. On April 24, 2013, the jury found Yong guilty of carrying a firearm without a license and of conspiracy to commit possession with intent to deliver (" PWID" ). Because Yong stipulated that he had a prior felony conviction that prohibited him from owning a firearm, the trial court also found Yong guilty of persons not to possess a firearm in a severed proceeding.
By oral motion advanced during his sentencing hearing on June 12, 2013, Yong argued that the jury's guilty verdict on the conspiracy to commit PWID count was against the weight of the evidence. The trial court denied Yong's motion, and sentenced him to five to ten years' imprisonment for persons not to possess a firearm, with concurrent terms of three and one half to seven years' imprisonment for firearms not to be carried without a license and five to ten years' imprisonment for conspiracy to commit PWID.
On July 8, 2013, Yong timely filed a notice of appeal. On July 15, 2013, the trial court directed Yong to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Yong timely complied.
Yong presents two issues for our consideration:
1. Did the trial court err in denying Yong's pretrial motion to suppress the search of his person where the arresting officer had neither probable cause to arrest Yong nor reasonable suspicion to perform a [Terry] frisk where Yong was merely present during the execution of a search warrant?
2. Was the evidence insufficient to support Yong's conviction for criminal conspiracy where a veteran police officer wrote in his investigation report that Yong entered one house and then handed a clear bag to a confidential informant[,] but that same officer twice testified that it was [Vega] who went into a different house and handed the same small objects to the same confidential informant?
Brief for Yong at 7 (footnote omitted).
Yong first contends that the trial court erred in denying his motion to suppress the physical evidence obtained from his person. Our standard of ...