The opinion
J-S02045-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RYAN GLOVER
Appellant No. 514 EDA 2015
Appeal from the Judgment of Sentence Entered January 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0004278-2014
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY STABILE, J. FILED MAY 24, 2016
Appellant, Ryan Glover, appeals from the judgment of sentence
entered January 5, 2015 in the Court of Common Pleas of Philadelphia
County, sentencing him to an aggregated term of five and one half to twelve
years of imprisonment. Upon review, we affirm.
The trial court summarized the background of the case as follows.
On February 20, 2014, the defendant, Ryan Glover, was
arrested and charged with Possession of a Controlled Substance
with Intent to Deliver (“PWID”), Knowingly and Intentionally
Possessing a Controlled Substance (“K&I”), and Resisting
Arrest.[1]
On June 24, 2014, the defendant filed a Motion to
Suppress. On October 29, 2014, after a hearing, this Court
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1
Respectively, 35 Pa.C.S.A. §§ 780-113(a)(30), 780-113(a)(16), and 18
Pa.C.S.A. § 5104.
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denied defendant’s Motion to Suppress physical evidence. After
a bench trial the same date, this Court found defendant guilty of
all charges and revoked bail.
Sentencing was deferred until January 5, 2015 for
completion of pre-sentence and mental health reports. At that
time, the defendant was sentenced to concurrent terms of
imprisonment of five and one half to twelve years for PWID, and
six to twelve months for Resisting Arrest, for a total sentence of
five and one half to twelve years of imprisonment.
On January 13, 2015, the defendant filed a Motion for
Reconsideration of Sentence. On January 29, 2015, this Court
denied the Motion for Reconsideration of Sentence. On February
13, 2015, the defendant filed a timely Notice of Appeal. On
February 18, 2015, this Court ordered the defendant to submit a
Statement of Matters Complained of on Appeal pursuant
Pa.R.A.P. 1925(b). On March 11, 2015, this Court granted the
defendant an extension of time to file a Statement. On March
30, 2015, the defendant filed a timely Statement.
At the hearing on the defendant’s Motion to Suppress, the
following facts were presented. On February 20, 2014, at
9:45 p.m., experienced Philadelphia Police Officers Charles
Waters and Antoine Wesley were on routine patrol in a high
crime area of West Philadelphia. Both officers observed the
defendant disregard a stop sign and fail to stop at the corner of
56th and Arch Streets. The officers initiated a U-turn and
followed the defendant’s car southbound, activating their lights
and sirens. They followed the defendant’s car, making a right
turn on Market Street and again on North Frazier Street
Defendant stopped his vehicle in a parking space near 13 North
Frazier Street.
While defendant produced his driver’s license and a rental
agreement, the rental agreement did not contain the car’s
vehicle information, so Officer Waters had to verify that the car’s
VIN matched its license plate. While he was doing so, Officer
Waters ordered the defendant to place both of his hands onto
the steering wheel. On two separate occasions, the defendant
removed his hands from the steering wheel and placed them
close to his waist. Officer Waters removed the defendant from
the car out of concern for his safety.
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Once outside of the car, after the defendant had been
instructed to put his hands on the roof of the car, the defendant
again reached into his waist area. At this point, for his safety,
Officer Waters conducted a brief pat-down of the defendant. He
felt a hard object that he believed, based upon prior experience,
to be a “rock” of cocaine.[2] The officers ordered the defendant
to place his hands behind his back because he was under arrest.
The defendant refused to comply. Both officers grabbed his
arms and wrestled with the defendant. The defendant
repeatedly attempted to reach toward his waist band. After
struggling for about two minutes, he was handcuffed and
transported to the 18th District. Once at the 18th District, the
officers found that the defendant had unfastened his seatbelt
and he was again reaching for his waistband. The officers
grabbed him in a hugging fashion, placed him on the ground,
and then recovered a plastic bag from inside the waist of his
pants. The plastic bag contained 123.813 grams of cocaine.
....
Following the denial of his Motion to Suppress, the
defendant elected to be tried on a bench trial at which time all
the relevant and non-hearsay testimony elicited at the
suppression hearing was incorporated. Officer George Burgess,
an expert in narcotics packaging and distribution, rendered his
opinion that the 124 grams of cocaine was possessed with intent
to distribute based upon the large, compressed quantity in a
single bag, ready for dilution and sale. He explained this is
characteristic of narcotics packaging regularly used by drug
dealers in Philadelphia.
[2]
At the time, Officer Waters had seventeen years
of experience, including greater than one hundred
firearms arrests, hundred narcotics arrests, and
greater than fifty arrests for cocaine.
Trial Court Opinion (T.C.O.), 4/9/15, at 1-4 (references to record omitted).
On appeal, Appellant raises two issues for our review.
1) Did the lower court error [sic] by denying [Appellant]’s
motion to suppress because the arresting police officer did
not know the item in [Appellant]’s pants was contraband until
he manipulated it?
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2) Does possession alone of approximately 120 grams of cocaine
establish as a matter of law that the controlled substance was
possessed with the intent to deliver?
Appellant’s Brief at 3.
In Appellant’s first issue, he challenges the trial court’s denial of his
suppression motion, claiming that Officer Waters manipulated the rock-like
object he felt in Appellant’s waistband in violation of the plain feel doctrine.
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. 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. The suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to
our plenary review. Moreover, appellate courts are limited to
reviewing only the evidence presented at the suppression
hearing when examining a ruling on a pre-trial motion to
suppress. See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1083–
1087 ([Pa.]2013).
Commonwealth v. Mathis, 125 A.3d 780, 783 (Pa. Super. 2015), appeal
granted, No. 975 MAL 2015, 2016 WL 1247784 (Pa. Mar. 30, 2016) (citation
omitted).
Our Supreme Court has clearly explained the plain feel doctrine as
follows.
It is well-established that a police officer may conduct a
brief investigatory stop of an individual if the officer observes
unusual conduct which leads him to reasonably conclude that
criminal activity may be afoot. Terry v. Ohio, 392 U.S. 1, 30,
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88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). Moreover, if the
officer has a reasonable suspicion, based on specific and
articulable facts, that the detained individual may be armed and
dangerous, the officer may then conduct a frisk of the
individual’s outer garments for weapons. Id. at 24, 88 S.Ct. at
1881. Since the sole justification for a Terry search is the
protection of the officer or others nearby, such a protective
search must be strictly “limited to that which is necessary for the
discovery of weapons which might be used to harm the officer or
others nearby.” Id. at 26, 88 S.Ct. at 1882. Thus, the purpose
of this limited search is not to discover evidence, but to allow the
officer to pursue his investigation without fear of violence.
Recently, however, the United States Supreme Court
considered the question of whether an officer may also properly
seize non-threatening contraband “plainly felt” during a Terry
frisk for weapons. Minnesota v. Dickerson, 508 U.S. 366, 113
S.Ct. 2130, 124 L.Ed.2d 334 (1993). Answering the question in
the affirmative, the Dickerson Court adopted the so-called plain
feel doctrine and held that a police officer may seize non-
threatening contraband detected through the officer’s sense of
touch during a Terry frisk if the officer is lawfully in a position to
detect the presence of contraband, the incriminating nature of
the contraband is immediately apparent from its tactile
impression and the officer has a lawful right of access to the
object. As Dickerson makes clear, the plain feel doctrine is only
applicable where the officer conducting the frisk feels an object
whose mass or contour makes its criminal character immediately
apparent. Immediately apparent means that the officer readily
perceives, without further exploration or searching, that what he
is feeling is contraband. If, after feeling the object, the officer
lacks probable cause to believe that the object is contraband
without conducting some further search, the immediately
apparent requirement has not been met and the plain feel
doctrine cannot justify the seizure of the object.
Commonwealth v. Stevenson, 744 A.2d 1261, 1264-65 (Pa. 2000) (some
citations omitted).
Appellant argues that Officer Waters’ search of Appellant exceeded the
scope of a permissible Terry frisk. Specifically, Appellant claims that
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“Officer Waters’ testimony makes clear that he manipulated that contraband
in a manner that exceeded that which the rule allows.” Appellant’s Brief at
13. Appellant bases this allegation on Officer Waters’ statement that he
could tell the contraband was inside of a plastic bag. Appellant argues that,
even though Officer Waters testified that he patted Appellant down with an
open palm, “common experience makes clear that a simple pat would not
uncover the plastic bag; such packaging would only be noticed with more
intrusive prodding.” Appellant’s Brief at 14. Appellant further argues that
an officer discovered contraband under similar circumstances in
Commonwealth v. Wilson, 927 A.2d 279 (Pa. Super. 2007), and this
Court determined that the officer’s search was illegal and the contraband
should have been suppressed.
To the extent that Appellant relies on Wilson, his reliance is
misplaced. In Wilson, Officer Clarence Gunter had testified that, during his
pat down of the defendant, he felt large hard ball in the defendant’s pocket
and “thought it was a weapon of some sort.” Wilson, 927 A.2d at 285.
Officer Gunter then asked the defendant what was in his pocket and, when
the defendant did not answer, Officer Gunter looked in the defendant’s
pocket and noticed what he “believed” was a bag of cocaine. Id. This Court
concluded that the plain feel doctrine was inapplicable as the record did not
contain “any evidence indicating that Officer Gunter felt non-threatening
contraband” during his pat down of the defendant. Id. at 287. As Officer
Waters’ testimony clearly indicated he “immediately knew” that the rock-like
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object he felt on Appellant was a rock of narcotics, Wilson is easily
distinguishable from the instant case.
The record provides no support for Appellant’s version of Officer
Waters’ testimony or Appellant’s argument that that Officer Waters only
discovered the narcotics on Appellant after “intrusive prodding.” To the
contrary, the record reflects Officer Waters clearly testified it was
‘immediately apparent’ to him that the rock-like object he detected was a
rock of narcotics.
[Officer Watters:] Once I took him out of the vehicle I told him
to place his hands on the roof of the car. He put his hands up on
the roof of the car and I -- because I thought he may have had a
gun in his waistband, I started at his waistband.
As I patted him down I felt a hard object which, to me, felt like a
rock.
[Commonwealth:] Okay.
[Officer Waters:] Once I felt that, I immediately knew that he
had narcotics on him.
The Court: When you say “a rock,” are we talking about a rock
of narcotics? Are we talking about a rock I’d pick up off the
street?
[Officer Waters:] No, a rock of narcotics.
....
[Commonwealth:] Officer, when you initially were patting the
defendant down and felt what you described as a rock, what did
you think it was?
[Officer Waters:] I immediately knew, from past experiences,
that it was narcotics.”
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N.T. Suppression Hearing and Waiver Trial, 10/29/14, at 24-27.
Additionally, the trial court found that Officer Waters conducted a lawful pat
down of Appellant during which Officer Waters believed the rock-like object
he felt to be a rock of cocaine based on his “extensive experience” which, as
previously mentioned, included greater than fifty arrests for cocaine. T.C.O.,
4/9/15, at 6. As, the record clearly indicates that it was immediately
apparent to Officer Waters that the rock-like object in Appellant’s waistband
was a rock of narcotics, the trial court correctly applied the plain feel
doctrine and appropriately denied Appellant’s suppression motion.
Appellant’s second issue is that the Commonwealth’s evidence was
insufficient to prove Appellant’s charge of PWID. Appellant’s Brief at 14.
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
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Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011)
(quoting Commonwealth v. Brooks, 7 A.3d 852, 856–57 (Pa. Super.
2010). “[This] Court cannot deem incredible that which the fact-finder
deemed worthy of belief.” Commonwealth v. Ratsamy, 934 A.2d 1233,
1237 (Pa. 2007). Additionally, “[t]o sustain a conviction for PWID, the
Commonwealth must prove both the possession of the controlled substance
and the intent to deliver the controlled substance.” Estepp, 17 A.3d at 944
(quotation marks and citation omitted). “[P]ossession with intent to deliver
can be inferred from the quantity of the drugs possessed and other
surrounding circumstances, such as lack of paraphernalia for consumption.”
Ratsamy, 934 A.2d at 1238 (quoting Commonwealth v. Jones, 874 A.2d
108, 121 (Pa. Super. 2005)).
Appellant alleges that the Commonwealth only established that the
cocaine Appellant possessed was valuable, not that he intended to deliver it.
Appellant’s Brief at 14. Appellant argues that, although the
Commonwealth’s expert, Officer Burgess, testified that he believed the
cocaine was possessed with intent to deliver, his basis was “a series of
truisms that hardly qualify as evidence.” Appellant’s Brief at 16. Appellant
faults Officer Burgess’ reliance on the value of the cocaine and how it was
packaged and alleges that the expert’s opinion regarding the location
Appellant concealed the cocaine was absurd. Appellant’s Brief at 16.
Appellant argues that Officer Burgess simply “presumed” Appellant to be an
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addict, yet also alleges that Officer Burgess concluded that Appellant did not
appear to be an addict. Appellant’s Brief at 16.
Essentially, Appellant argues that the Commonwealth did not prove he
possessed the cocaine with intent to deliver because Officer Burgess’
testimony was not credible. Again, the fact-finder is free to believe all, part
or none of the evidence and, under our standard of review, we do not
substitute our own credibility determinations for those of the trial court.
Instantly, the trial court found the expert testimony given by Officer Burgess
credible. Additionally, the trial court cited the pure form of the cocaine, its
high value of $12,400, and Appellant’s lack of usage paraphernalia as not
indicative of personal use and sufficient to prove Appellant possessed the
cocaine with intent to distribute it. T.C.O., 4/9/15, at 7-8. Furthermore,
the record simply does not support Appellant’s version of Officer Burgess’s
expert testimony. Therefore, viewing the facts in the light most favorable to
the Commonwealth as the verdict winner, the evidence was sufficient to
prove beyond a reasonable doubt Appellant possessed the cocaine with
intent to deliver.
Appellant is not entitled to relief on either of his issues. The record
supports the trial court’s denial of Appellant’s suppression motion and
determination that the Commonwealth proved beyond a reasonable doubt
Appellant’s PWID charge. As such, we affirm Appellant’s judgement of
sentence.
Judgement of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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