J-S51020-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

* 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,1criminal use of a communication facility,2and 

____________________________________________

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