J-S11035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF FILED MAY 04, 2016

: PENNSYLVANIA

v. :

:

EDWARD RIVERA, :

:

Appellant : No. 2920 EDA 2014

Appeal from the Judgment of Sentence July 14, 2014,

in the Court of Common Pleas of Philadelphia County,

Criminal Division, No(s): MC-51-CR-0012203-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED MAY 04, 2016

Edward Rivera (“Rivera”) appeals from the Order of the common pleas 

court, which denied his Petition for Writ of Certiorari of the judgment of 

sentence entered by the Municipal Court of Philadelphia1following his 

conviction of possession of a controlled substance and purchase of a 

 

1 An appellant convicted in Philadelphia’s Municipal Court has two appellate 

options:

Pennsylvania Rule of Criminal Procedure 1006(1)(a) provides 

that a defendant convicted in Philadelphia Municipal Court has 

the right to request either a trial de novo or file a petition for a 

writ of certiorari with the Philadelphia Court of Common Pleas.

This Court has held that when a defendant files a petition for a 

writ of certiorari, the Philadelphia Court of Common Pleas sits as 

an appellate court.

Commonwealth v. Coleman, 19 A.3d 1111, 1118-19 (Pa. Super. 2011) 

(citations omitted). A petition for writ of certiorari asks the common pleas

court to review the record made in the Municipal Court. Commonwealth v. 

Williams, 125 A.3d 426, 431 (Pa. Super. 2015). 
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controlled substance from an unlicensed seller.2 We vacate the Order of the 

common pleas court, vacate Rivera’s judgment of sentence, and discharge 

Rivera. 

In its Opinion, the common pleas court set forth its factual findings 

relevant to the instant appeal as follows:

On April 16, 2014, Officer [Bryan] Outterbridge [“Officer 

Outterbridge”] and [another police officer] went to 3116 North 

15th Street [in Philadelphia] to observe the sale of illegal 

narcotics[,] after receiving a complaint that drugs were being 

sold out of the residence. The residence is a rooming house, 

located in a high drug area, known for the sale of marijuana, 

crack, and heroin[,] where Officer Outterbridge had made more 

than a hundred arrests. 

At approximately 11:45 a.m., an unknown male wearing a 

tan jacket approached and knocked on the door. A second 

unknown male wearing a red sweatshirt answered, letting the 

first man inside. After approximately forty-five seconds, the 

man in the tan jacket emerged and walked northbound on 15th

[S]treet. Though Officer Outterbridge relayed flash information 

to have the man stopped, he was never found. At approximately 

12:10 p.m., a second unknown male in a tan jacket and black 

pants knocked on the door. The same male in the red sweatshirt 

let him inside[,] where both remained for approximately fortyfive seconds. Upon leaving, the man in the tan jacket and black 

pants headed northbound on 15th Street, but then turned west 

onto Allegheny [Avenue] and entered an apartment building 

before he could be stopped by police. Finally, at approximately 

12:30 p.m., a man wearing a red, white, and blue shirt, later 

identified as [Rivera], approached 3116 North 15th Street. 

[Rivera] knocked on the door in the same manner as the two 

men before him. He[,] too[,] was greeted by the man wearing 

the red sweatshirt and, like the two men who preceded him[,] 

entered the residence. After being out of view for approximately 

forty-five seconds, [Rivera] returned to the street and walked 

southbound on 15th Street, then east on Clearfield [Street].

 

2 35 P.S. § 780-113(a)(16), (19).
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Officer Outterbridge has been a Philadelphia police officer 

for twenty-one years[,] with five years of experience working 

narcotics. Throughout his career, Officer Outterbridge has 

received specialized training in narcotics. He is certified to test 

various narcotics, including marijuana, crack, cocaine, and 

heroin. He is also trained in the packaging of narcotics and how 

they are distributed. Because he had made numerous arrests in 

the area, and based on his years of experience as a member of 

the narcotics team, Officer Outterbridge believed that what he 

saw on April 16, 2014 was a narcotics transaction. Officer 

Outterbridge had observed similar situations in the past; he had 

seen other narcotics sales from residences[,] and this “fit the 

description.” Based on this belief, Officer Outterbridge relayed 

flash information to back-up officers. Officer Bradley responded 

and stopped [Rivera], recovering one heat-sealed packet 

containing an off-white chunky substance: crack cocaine. A 

field drug test was conducted on this packet and it came back 

positive for the presence of cocaine base. 

Trial Court Opinion, 7/15/15, at 1 (citations omitted). The Commonwealth 

subsequently charged Rivera with the above-described offenses. 

The trial court concisely summarized the procedural history following 

Rivera’s arrest as follows: 

[Rivera] appeared before the Municipal Court on July 14, 

2014[,] with a Motion to Suppress, which was denied. [Rivera] 

was subsequently found guilty of knowing and intentional 

possession of a controlled substance [and purchase of a 

controlled substance from an unlicensed seller,] and was 

sentenced to eighteen months [of] reporting probation. On 

October 7, 2014, [Rivera] appeared before the Court of Common 

Pleas with a [Petition for] Writ of Certiorari from the denial of the 

Motion to Suppress.[3] The [trial c]ourt denied the [Petition for] 

Writ of Certiorari on that same day. This appeal followed.

Id. at 1 (footnote added). 

On appeal, Rivera presents the following claim for our review:

 

3 Rivera had filed his Petition for Writ of Certiorari on August 12, 2014. 
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Did not the courts below err in denying [Rivera’s M]otion to 

[S]uppress physical evidence[,] where police saw two unknown 

individuals briefly enter and leave a house police believed was a 

drug house, and later saw [Rivera] briefly enter and leave the 

same house, but police observed no transactions, exchanges, or 

contraband?

Brief for Appellant at 3. 

In reviewing an order denying a suppression motion, 

[a]n appellate court may consider only the Commonwealth’s 

evidence and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record 

as a whole. Where the record supports the factual findings of 

the trial court, the appellate court is bound by those facts and 

may reverse only if the legal conclusions drawn therefrom are in 

error. However, it is also well settled that an appellate court is 

not bound by the suppression court’s conclusions of law.

Commonwealth v. Caple, 121 A.3d 511, 516-17 (Pa. Super. 2015) 

(citations omitted). 

With respect to factual findings, we are mindful that it is the sole 

province of the suppression court to weigh the credibility of the 

witnesses. Further, the suppression court judge is entitled to 

believe all, part or none of the evidence presented. However, 

where the factual determinations made by the suppression court 

are not supported by the evidence, we may reject those findings. 

Only factual findings which are supported by the record are 

binding upon this Court.

Id. (citation omitted). 

Rivera claims that the police officers lacked probable cause to arrest 

him, and accordingly, the suppression court erred in not suppressing all 

evidence seized from him as a result of the illegal arrest. Brief for Appellant 

at 8. Rivera acknowledges the Commonwealth’s evidence that the officers 

had received complaints about drugs being sold from the residence at issue, 
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and that Officer Outterbridge and his partner set up surveillance of that 

property. Id. Rivera further acknowledges the Commonwealth’s evidence 

that the area was a high-drug crime area, and that Officer Outterbridge was 

a 21-year veteran of the police force, with five years of narcotics experience. 

Id. Notwithstanding, Rivera claims that the Commonwealth

failed to establish a nexus between [Officer Outterbridge’s] 

experience and his observations sufficient to create probable 

cause where the officer observed nothing that was immediately 

identifiable as unlawful. He saw three people enter and leave a 

rooming house that police received anonymous complaints about 

regarding drug sales. [Officer Outterbridge] saw no exchanges, 

or contraband, or money, or any evidence of drug sales.

Id. at 11. In support, Rivera compares the circumstances in this case to 

those presented in Commonwealth v. Myers, 728 A.2d 960 (Pa. Super. 

1999). Brief for Appellant at 9-10. 

In its Opinion, the trial court acknowledged Rivera’s reliance on 

Myers, but reasoned that Rivera had “neglect[ed] to consider the impact of 

[Commonwealth v. Thompson, 985 A.2d 928 (Pa. 2009),] and its 

progeny.” Trial Court Opinion, 7/15/15, at 5. The trial court considered 

Officer Outterbridge’s training and experience, and deemed it significant that 

Officer Outterbridge had witnessed several identical instances of persons 

entering and leaving the residence. Id. at 6-7 (citing Commonwealth v. 

Delvalle, 74 A.3d 1081 (Pa. Super. 2013)). Based upon this evidence, the 

trial court concluded that the Commonwealth had established probable cause 

to arrest Rivera. Trial Court Opinion, 7/15/15, at 8. 
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“The Fourth Amendment to the [United States] Constitution and Article 

I, Section 8 of [the Pennsylvania] Constitution protect citizens from 

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 

A.3d 781, 784 (Pa. Super. 2012). Generally, the police must obtain a 

warrant to arrest a suspect in a public place. In the Interest of R.P., 918 

A.2d 115, 120 (Pa. Super. 2007). “However, the police may arrest a 

suspect without a warrant if the officer has probable cause to believe a 

misdemeanor was committed in the presence of the police officer.” Id. at 

120-21. 

“To be constitutionally valid, a warrantless arrest must be supported 

by probable cause.” Commonwealth v. Agnew, 600 A.2d 1265, 1271 (Pa. 

Super. 1991) (citation omitted). 

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. 

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require only a 

probability, and not a prima facie showing, of criminal activity. 

In determining whether probable cause exists, we apply a 

totality of the circumstances test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (emphasis 

omitted) (quoting Thompson, 985 A.2d at 931 (Pa. 2009) (citations and 

quotation marks omitted)). “When an officer makes an unlawful arrest, any 

evidence seized during a search incident to the arrest must be suppressed.” 

Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999). 
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Rivera relies upon the Pennsylvania Supreme Court’s decision in 

Myers, as supporting his claim that his arrest was not supported by 

probable cause. In Myers, 

[f]ollowing surveillance of [a] residence at 2507 S. 62nd Street 

in Philadelphia[,] which anonymous complaints had identified as 

the site of a drug trafficking operation, police arrested two 

persons for narcotics violations on March 25 and 26, 1997. On 

April 1, 1997, at approximately 5:00 p.m., police observed a 

man entering the premises and leaving approximately two 

minutes later. About one hour later, a woman entered the house

and quickly left. At approximately 6:30 p.m., [the a]ppellant 

was observed by a surveillance officer[,] who described his 

actions as follows:

[The appellant] walked up, knocked on the door, [and] 

entered. Approximately two minutes later, he exited. I 

believe I saw something in his hand but, again, it was 

closed. He then placed it in his pocket.

(N.T. Suppression, 7/14/97, at 17-18). [The a]ppellant then 

entered his vehicle and drove away.

Myers, 728 A.2d 961. Based upon the foregoing, our Supreme Court 

concluded that the police lacked probable cause to place the appellant under 

arrest: “[The a]ppellant entered a house that was under surveillance and 

was seen leaving approximately two minutes later. The surveillance officer 

thought he saw something in [the a]ppellant’s hand but could not be certain. 

These facts do not constitute probable cause.” Id. at 962 (emphasis 

added). 

In concluding that the facts in the instant case established probable 

cause, the trial court relied upon our Supreme Court’s decision in 

Thompson. In Thompson, while on patrol, Philadelphia Police Officer 
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Orlando Ortiz (“Officer Ortiz”) observed a car parked on a sidewalk and 

observed the appellant standing in the street by the driver’s side door. 

Thompson, 985 A.2d at 930. “Officer Ortiz watched Percy Thompson 

(“Thompson”) hand the male driver some money and saw the driver give 

[Thompson] a small object in return.” Id. To establish probable cause, the 

Commonwealth presented evidence that Officer Ortiz was a nine-year 

member of the police force, who had made several hundred narcotics arrests 

of this type. Id. Further, the Commonwealth presented evidence of Officer 

Ortiz’s knowledge that the neighborhood was a “high crime area in which 

narcotics, and specifically heroin, regularly were sold[,]” and “[t]he area was 

designated by the Philadelphia Police Department as an ‘Operation Safe 

Streets’ neighborhood.” Id. Under these circumstances, the Thompson

Court concluded that “a police officer’s experience is a relevant factor in the 

probable cause inquiry[,] as long as it has specific application to the 

circumstances at hand.” Id. (emphasis added). 

[A] court cannot simply conclude that probable cause existed 

based upon nothing more than the number of years an officer 

has spent on the force. Rather, the officer must demonstrate 

a nexus between his experience and the search, arrest, or 

seizure of evidence. Indeed, a factor becomes relevant only 

because it has some connection to the issue at hand.... 

Id. at 935 (citations and quotation marks omitted, emphasis added). 

Subsequently, in Delvalle, the appellant challenged whether the 

Commonwealth had presented a sufficient nexus between Police Officer Eric 

Crawford’s (“Officer Crawford”) training and experience, and the observed 
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transactions involving Robert Delvalle (“Delvalle”) and Maria Melendez 

(“Melendez”). The trial court, however, concluded that probable cause 

existed, without considering Officer Crawford’s experience:

Officer Crawford observed Melendez approach and hand 

[Delvalle] small objects. [Delvalle] placed those objects in the 

front of his pants, which certainly is a dubious place to store 

non-contraband items. [Delvalle] then worked in tandem with 

Melendez to facilitate suspicious transactions. An individual 

would approach [Delvalle]. [Delvalle] would then direct that 

individual to Melendez. That person would then hand Melendez 

money. Melendez would then give that person an unknown 

object, which she retrieved from the pocket of her hooded 

sweatshirt. Unlike the circumstances in Thompson ..., this 

sequence of events did not happen once, but instead happened 

four times in fewer than twenty minutes, each transaction 

occurring in the same exact manner. Considering the fact 

that the neighborhood was considered to be a high drugtransaction area, the suspicious secretion of the objects, 

the nature and location of the transactions, and the 

frequency and repetitiveness of the transactions, probable 

cause existed to warrant a reasonable police officer’s 

belief that [Delvalle] and Melendez were committing a 

crime, even without considering Officer Crawford’s 

experience.

Officer Crawford testified that he had conducted 

surveillance in that same location thirty to forty times, which 

produced seventy-five to one hundred drug arrests based upon 

very similar transactions. As a member of the narcotics 

enforcement team, Officer Crawford received training in how 

drugs are packaged, sold generally, and sold through the use of 

a partner. More importantly, in his experience, Officer Crawford 

had observed over one hundred people store drugs in the front 

of their pants, as [Delvalle] did in the instant case. This 

particular experience informed his view that [Delvalle] and 

Melendez were working together and selling drugs, even though 

Officer Crawford was unable to identify the objects being sold. 

Through this testimony, Officer Crawford established the 

requisite nexus between his experience and his observations to 

support the existence of probable cause.
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Delvalle, 74 A.3d at 1088. 

Keeping in mind our scope and standard of review, the evidence in this 

case falls short of that which was presented in Thompson and Delvalle. 

Rather, the circumstances underlying Rivera’s arrest more closely resemble 

those presented in Myers. Here, the alleged transactions took place outside 

of the presence of Officer Outterbridge. Officer Outterbridge did not witness 

any activity resembling a transaction, such as the exchange of money for 

objects or the secreting of those objects in a suspicious location. Under 

these circumstances, we conclude that the Commonwealth failed to establish 

the required nexus between Officer Outterbridge’s experience and training, 

and Rivera’s arrest. See Thompson, 985 A.2d at 935. Even considering 

Officer Outterbridge’s training and experience, we conclude that the 

Commonwealth failed to establish probable cause that Rivera had engaged in 

criminal activity.4 Accordingly, we reverse the Order of the common pleas 

court denying Rivera’s Petition for Writ of Certiorari, reverse Rivera’s 

judgment of sentence, and discharge Rivera.

Order vacated; judgment of sentence vacated and appellant is 

discharged. 

 

4 We note, however, that such evidence may establish reasonable suspicion 

to effectuate an investigative stop of Rivera, pursuant to Terry v. Ohio, 392 

U.S. 1 (1968). 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/4/2016