J. S04037/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

TISHAUN T. BLACK, : No. 1147 MDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, June 22, 2017,

in the Court of Common Pleas of Dauphin County

Criminal Division at No. CP-22-CR-0005891-2016

BEFORE: SHOGAN, J., DUBOW, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 27, 2018

Tishaun T. Black appeals from the June 22, 2017 judgment of 

sentence entered in the Court of Common Pleas of Dauphin County following 

his conviction in a waiver trial of two counts of possession with intent to 

deliver (“PWID”), one count of criminal use of a communication facility, two 

counts of use/possession of drug paraphernalia, and one count of possession 

of a controlled substance.1 The trial court sentenced appellant to an 

aggregate term of imprisonment of five to ten years. We affirm.

The trial court set forth the following factual history:

At the suppression hearing, the 

Commonwealth presented the testimony of Police 

Officer Nicholas Ishman of the Harrisburg Police 

Department. Officer Ishman has been a police 

 

1 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. § 7512(a), 35 P.S. §§ 780-

113(a)(32) & (a)(16), respectively.
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officer for nine years. Officer Ishman testified to the 

events that took place on September 17, 201[6], the 

date of the incident. Officer Ishman has had 

numerous prior contacts with [a]ppellant, including 

prior drug arrests and was aware of a prior 

arrest.[Footnote 10] From following [a]ppellant on 

social media, Officer Ishman was aware that 

[a]ppellant sometimes goes by the nickname 

“Boobie.”

[Footnote 10] Officer Ishman follows 

[a]ppellant on social media.

Around 10:30 p.m. on the night of the 

incident, Officer Ishman was talking to a confidential 

informant (“CI”) who set up a drug buy for an ounce 

of crack. The CI informed Officer Ishman that the 

purchase would be from someone named “Boobie.” 

The CI sent a text message to 717-[XXX-XXXX] 

asking for food (food is sometimes used as a code 

word for crack). The CI also arranged to purchase 

an 8th of an ounce of marijuana. Between texting 

and phone calls, the deal was to take place at 

2743 Reel Street in Harrisburg, Pennsylvania. 

Officer Ishman testified that he knew that 

[a]ppellant’s parole address was 2743 Reel Street 

and that this is a high drug crime area. As Officer 

Ishman and the CI approached Reel Street, the CI 

received a phone call from the same number as 

mentioned above. The CI relayed to Officer Ishman 

that the person on the other end of the phone call 

was standing in the middle of the street. When 

Officer Ishman turned onto Reel Street, he saw 

[a]ppellant standing in the middle of the street and 

no one else around at that time.[Footnote 11] As 

Officer Ishman pulls up to [a]ppellant, [a]ppellant

immediately starts running. After 20-30 yards, 

[a]ppellant lies down and Officer Ishman approaches 

him and does a pat down. During this pat down, 

Officer Ishman felt a package that he immediately 

knew to be marijuana. Officer Ishman removed a 

large Wal-Mart bag from [a]ppellant’s pocket which 

contained a large amount of marijuana and a large 

amount of crack cocaine, a digital scale, two 
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Oxycodone pills (in the marijuana), two cell phones, 

and $300 in cash. Finally, on direct-examination, 

Officer Ishman testified that he has prior experience 

in narcotics investigation[,] including academy 

training in narcotics and has made hundreds of 

marijuana arrests throughout his career.

[Footnote 11] The CI reached out to 

[a]ppellant around 1:00 a.m. in the early 

morning hours.

On cross-examination, Officer Ishman testified 

that the CI was recently arrested and was looking for 

a way to help himself out. Officer Ishman further 

testified that he did not see any controlled substance 

and that he never heard who the CI was talking to 

on the phone.

Trial court opinion, 8/23/17 at 2-5 (footnote 9 and citations to notes of 

testimony omitted).

As previously stated, appellant was convicted of the aforementioned 

crimes in a waiver trial and sentenced to an aggregate term of imprisonment 

of five to ten years. The record reflects that appellant filed a timely notice of 

appeal to this court. The trial court then ordered appellant to file a 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

Following the grant of an extension of time, appellant filed a timely 

Rule 1925(b) statement. The trial court then filed its Rule 1925(a) opinion.

Appellant raises the following issue for our review:

Whether the Honorable Trial Court erred in denying 

suppression of the evidence where the officer 

arrested [a]ppellant without any description of a 

suspect and subsequently searched [a]ppellant 

without witnessing a crime or criminal activity afoot?
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Appellant’s brief at 7.

Our standard of review for challenges to the denial of a suppression 

motion is as follows:

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. Where the suppression court’s 

factual findings are supported by the record, we are 

bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where . . . 

the appeal of the determination of the suppression 

court turns on allegations of legal error, 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.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012), 

quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 

2012) (citations omitted).

Appellant complains that because Officer Ishman did not have a 

physical description of the suspect who was to sell the crack cocaine and 

marijuana to the CI and because Officer Ishman did not observe appellant 

engage in criminal activity, the evidence that Officer Ishman seized should 

have been suppressed.
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In evaluating [a]ppellant’s argument that he was 

unlawfully arrested, we take note of the following 

principles:

[L]aw enforcement authorities must have 

a warrant to arrest an individual in a 

public place unless they have probable 

cause to believe that 1) a felony has 

been committed; and 2) the person to be 

arrested is the felon. A warrant is also 

required to make an arrest for a 

misdemeanor, unless the misdemeanor 

is committed in the presence of the 

police officer. The legislature, however, 

has authorized law enforcement officers 

to make warrantless arrests for 

misdemeanors committed outside their 

presence in certain circumstances.

In the Fourth Amendment context, the fact that the 

officer does not have the state of mind which is 

hypothecated by the reasons which provide the legal 

justification for the officer’s action does not 

invalidate the action taken as long as the 

circumstances, viewed objectively, justify that 

action. In other words,

Fourth Amendment reasonableness is 

predominantly an objective inquiry. We 

ask whether the circumstances, viewed 

objectively, justify the challenged action. 

If so, that action was reasonable 

whatever the subjective intent 

motivating the relevant officials. This 

approach recognizes that the Fourth 

Amendment regulates conduct rather 

than thoughts . . . .

. . . .

[T]he inquiry must simply focus on whether the 

relevant facts and circumstances within the arresting 

officer’s knowledge are sufficient to lead any person 

of reasonable caution to conclude that an offense has 
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been or is being committed, based on a probability, 

and not a prima facie showing, of criminal activity. 

Commonwealth v. Martin, 101 A.3d 706, 721-722 (Pa. 2014) (internal 

citations and quotation marks omitted).

Stated differently, probable cause exists where “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.” Commonwealth v. 

Thompson, 985 A.2d 928, 931 (Pa. 2009) (citation omitted). We need not 

discern whether the officer’s belief was more likely correct than incorrect. 

Id. A probability of criminal activity, rather than a prima facie showing 

thereof, is sufficient. Id. To answer the question, we examine the totality 

of the circumstances. Id.

Here, the record reflects that Officer Ishman, in his ninth year as a 

police officer,

2 has worked in the street crimes unit of the police department 

for five years and has had numerous encounters with appellant, including 

drug arrests. (Notes of testimony, 3/2/17 at 3, 4, 7.) Officer Ishman also 

followed appellant on social media3 and learned that appellant went by the 

 

2 The record reflects that Officer Ishman has Police Academy training in 

narcotics, attended narcotics conferences, and has made hundreds of 

marijuana arrests. (Notes of testimony, 3/2/17/at 12.)

3 The record reflects that appellant had two Facebook pages. (Notes of 

testimony, 3/2/17 at 5.)
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nickname “Boobie.” (Id. at 5.) In addition to appellant’s identifying himself 

by that nickname on social media, other informants told Officer Ishman that 

appellant went by the nickname “Boobie.” (Id at 5-6.)

The record further reflects that at approximately 10:30 on the night of 

September 17, 2016, Officer Ishman spoke with the C.I. who stated that 

they could buy an ounce of crack from “Boobie.” (Id.) Officer Ishman 

asked the C.I. if “Boobie” was appellant, and the C.I. confirmed that 

“Boobie” was, indeed, appellant. (Id.) The C.I. then texted a number that 

the C.I. had listed as “Boobie,” asking whether “Boobie” had any “food.” 

(Id.) The C.I. confirmed that “food” was code for “crack.” (Id.) The C.I. 

received a return text message stating the price of $1,150 for an ounce of 

crack. (Id. at 7.) The C.I. also arranged to purchase an eighth of an ounce 

of marijuana from “Boobie.” (Id.) The C.I. and “Boobie” then made 

arrangements for the purchases via text messaging and oral telephone 

communications. (Id. at 8-9.) The two arranged for the sales to occur in 

front of 2743 Reel Street, which was a high-crime area, as well as 

appellant’s parole address. (Id. at 7, 9-10.)

The record reflects that after completing arrangements for the drug 

sales, the C.I. received a telephone call from the person the informant listed 

as “Boobie.” (Id. at 10.) The C.I. informed Officer Ishman that the target 

was standing in front of 2743 Reel Street residence. (Id.) Officer Ishman 

then drove to the Reel Street location, where he saw appellant standing in 
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the middle of the street in front of appellant’s parole residence, 2743 Reel 

Street. (Id. at 11.) Officer Ishman testified that no one else was out on the

street at that time. (Id.) Officer Ishman, who was in uniform, then pulled 

his car up to appellant, and appellant immediately ran north on Reel Street. 

(Id.) Officer Ishman chased appellant for approximately 20 to 30 yards. 

(Id.) Appellant then laid down and started cursing. (Id.) Officer Ishman 

handcuffed appellant and conducted a pat-down search; felt what he knew 

to be marijuana; removed a Wal-Mart bag from appellant’s pocket that

contained marijuana and crack cocaine, a digital scale, two Oxycodone pills

in the marijuana, two cell phones, and $300 in cash. (Id. at 12.)

Considering, as we must, the Commonwealth’s evidence, as well as 

the uncontradicted evidence when read in the context of the record as a 

whole, the record supports the trial court’s finding that based upon the 

totality of the circumstances within Officer Ishman’s knowledge, a person of 

reasonable caution would conclude that criminal activity was probable. 

Therefore, because the record supports the trial court’s factual findings and 

its legal conclusions drawn from those facts were correct, appellant’s claim 

necessarily fails.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/27/2018