J. S55041/18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DAVID JUSTIN TOSTA, : No. 2595 EDA 2017

:

 Appellant :

Appeal from the Judgment of Sentence, June 26, 2017,

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0004783-2016

BEFORE: OLSON, J., STABILE, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 24, 2018

David Justin Tosta appeals from the judgment of sentence entered on 

June 26, 2017, by the Court of Common Pleas of Montgomery County 

following his conviction of possession of a controlled substance, possession 

of a small amount of marijuana, and possession of drug paraphernalia.1 

After careful review, we affirm.

The trial court provided the following synopsis of the relevant facts and 

procedural history:

On April 7, 2016, [appellant] was arrested following 

a traffic stop where police recovered marijuana, in 

addition to one and a half pills of Oxycodone, in his 

car. [Appellant] was charged with possession of a 

controlled substance (misdemeanor), possession of a 

small amount of marijuana (misdemeanor), and 

possession of drug paraphernalia (misdemeanor).

 

1 35 P.S. §§ 780-113(a)(16), (32), and (33), respectively.
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At about 7:13 PM on April 7, 2016, Kevin Fritchman, 

an officer with the Norristown Police Department, 

received an anonymous call concerning an alleged 

drug transaction occurring at the intersection of 

Noble and Marshall Streets in Norristown, 

Montgomery County. The caller described a black 

sedan on the southwest corner of Noble Street, 

where the caller observed “a black male wearing a 

black and red hooded sweatshirt and blue jeans” 

walk up to the car and collect money from the driver, 

later identified as [appellant]. After acquiring the 

money from [appellant], the African-American male 

entered Apartment A of 932 West Marshall Street, 

which is “directly across the street” from the black 

sedan.

About a minute after receiving the call, 

Officer Fritchman reported to the scene and saw a 

black sedan matching the registration received from 

the anonymous caller. From approximately 500 feet 

away,[Footnote 2] Officer Fritchman watched as “a 

black male wearing a black and red sweatshirt” 

exited Apartment A, walked over to the black sedan, 

and gave “something” to [appellant]. 

Officer Fritchman “relayed everything . . . over 

dispatch radio . . . to Officer Robinson.”

[Footnote 2] When defense counsel 

questioned Officer Fritchman’s view of 

the transaction, Officer Fritchman 

clarified that he used binoculars.

Carl Robinson, Jr., an officer with the Norristown 

Police Department, heard Officer Fritchman’s radio 

call. Although Officer Robinson did not observe the 

transaction, he knew via radio calls that [appellant] 

engaged in a drug transaction, then drove south on 

Noble Street in his black sedan. Officer Robinson 

followed the black sedan, and “activated [his] 

emergency lights and the air horn in [an] attempt to 

conduct a vehicle stop” near the intersection of Noble 

and West Airy Streets. After travelling about 

50 more feet, [appellant] eventually turned into an 
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alley. Before [appellant] stopped his car, 

Officer Robinson observed him “reaching towards the 

front center console area built into the car.” 

[Appellant] then parked in a lot, and “immediately 

exited the vehicle.” [Appellant] exited his car at the 

same time Officer Robinson exited his police car. As 

[appellant] stood by the driver’s side door of his car, 

Officer Robinson stood right next to him. At that 

time, Officer Robinson saw “a clear packet of 

marijuana in the pocket of the driver’s door.” 

Officer Robinson arrested [appellant], and then 

searched the area of the car where he saw 

[appellant] reach. He found one and a half white 

pills, later identified as Oxycodone, inside a cigarette 

package in the center console of the car.

[Appellant] chose to testify during his suppression 

hearing, and denied engaging in a drug transaction 

on April 7. Instead, [appellant] claimed he parked 

his black sedan, and waited for Juan “Ricky” Colon so 

he could “pay a debt.” Mr. Colon resided at 

930 West Marshall Street. On the night of the 

incident, from about 6:45 to 7:00 PM, [appellant] 

claimed Mr. Colon exited his home, entered 

[appellant’s] car, and sat in the passenger’s seat “for 

about five minutes.” [Appellant] gave Mr. Colon $20 

or $30 that Brian Horn owed Mr. Colon for cigarettes 

and drinks. After he gave money to Mr. Colon, 

[appellant] said “[he] did some text messaging . . .

checked Facebook, [and] surfed the web.” When 

[appellant] drove away, he said Officer Robinson 

stopped him. He decided to park in a lot, and then 

exited his car to speak with Officer Robinson. 

[Appellant] claimed Officer Robinson commanded he 

“[g]et back in the car immediately.” [Appellant] said 

he complied. When he tried to close his driver’s side 

door, [appellant] said “[Officer Robinson] jammed 

his leg in” to prevent it from closing. Then, 

[appellant] claimed Officer Robinson began 

“rummaging around” right before his arrest.

Mr. Colon testified on [appellant’s] behalf, and 

claimed he and [appellant] planned to meet on 

April 7 so [appellant] could give him $20. Mr. Colon 
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said [appellant] parked his car across from his home 

at 930 West Marshall Street. Mr. Colon claimed he 

sat in the passenger’s seat of [appellant’s] car for 

about “three to five minutes.” 

On March 22, 2017, the [trial court held] a hearing 

on [appellant’s] Motion to Suppress, but 

subsequently denied it. First, the [trial court] found 

that reasonable suspicion existed for officers to 

conduct an investigatory stop because the totality of 

the circumstances revealed: (1) Officers Fritchman 

and Robinson had drug arrest experience; (2) the 

anonymous caller described the make and color of 

[appellant’s] car, reported the car’s location, and 

distinguished the individuals involved; 

(3) Officer Fritchman’s observations at the scene; 

and ([4]) the Norristown Borough, where the 

transaction occurred, was a “drug trafficking area.” 

Second, the [trial court] found that Officer Robinson 

had authority to seize [appellant’s] marijuana from 

his car because he saw marijuana in plain view, 

placed in an open compartment on the driver’s side 

door. Police officers had authority to further search 

[appellant’s] car, and seize one and a half 

Oxycodone pills without a warrant, because probable 

cause existed under the totality of the 

circumstances, where police officers previously had 

reasonable suspicion to investigate and already 

viewed marijuana in plain view.

Later, on March 22, [2017, appellant] waived his 

right to a jury trial and proceeded with a bench trial. 

The parties stipulated to incorporating testimony 

from the suppression hearing into the trial record. 

The [trial court] ultimately found [appellant] guilty of 

possession of a controlled substance, possession of a 

small amount of marijuana, and possession of drug 

paraphernalia.

The [trial court] sentenced [appellant] on June 26, 

2017. For possession of a controlled substance, the 

[trial court] sentenced [appellant] to 12 months of 

probation with Montgomery County Adult Probation 

and required him to pay the cost of prosecution in
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addition to a $500 fine. For possession of a small 

amount of marijuana, the [trial court] sentenced 

[appellant] to one month probation and required him 

to pay the cost of prosecution with no additional fine. 

For possession of drug paraphernalia, the [trial 

court] sentenced [appellant] to six months of 

probation and required him to pay the cost of 

prosecution with no additional fine. The sentences 

imposed for possession of a small amount of 

marijuana and possession of drug paraphernalia run 

concurrent with [appellant’s] sentence for possession 

of a controlled substance. Additionally, the [trial 

court] sentenced [appellant] to complete an 

outpatient program for substance abuse and required 

him to complete 40 hours of community service 

within one year. Concerning probation, [appellant] 

must adhere to special conditions of probation and 

pay the monthly offender supervision fee.[

2]

[Appellant] filed a notice of direct appeal on 

August 7, 2017.[

3] Pursuant to a 

[Pa.R.A.P.] 1925(b) order, [appellant] submitted a 

concise statement of [errors] complained of on 

appeal[.]

Trial court opinion, 11/1/17 at 1-5 (citations to record omitted; additional 

footnotes omitted).

Appellant raises the following issues for our review:

1. Did [the t]rial [c]ourt abuse its discretion in 

not suppressing evidence?

2. Did the Commonwealth’s inconsistent and 

conflicting evidence corroborate an anonymous 

 

2 Appellant filed post-sentence motions on July 6, 2017. The trial court 

denied appellant’s post-sentence motions on July 7, 2017.

3 August 5, 2017, fell on a Saturday. Accordingly, the final day for appellant 

to timely file a notice of appeal was the following business day, Monday, 

August 7, 2017. See 1 Pa.C.S.A. § 1908.
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tip justifying seizure of [appellant] and/or a 

lawful finding of contraband?

Appellant’s brief at vi.

When addressing an appeal of a trial court’s denial of a motion to 

suppress evidence, we are held to the following standard:

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), 

appeal denied, 65 A.3d 413 (Pa. 2013), quoting Commonwealth v. 

Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012), appeal denied, 57 A.3d 

68 (Pa. 2012) (citations omitted).

Fourth Amendment jurisprudence has led to the 

development of three categories of interactions 

between citizens and the police. The first of these is 

a “mere encounter” (or request for information) 

which need not be supported by any level of 
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suspicion, but carries no official compulsion to stop 

or to respond. The second, an “investigative 

detention” must be supported by a reasonable 

suspicion; it subjects a suspect to a stop and a 

period of detention, but does not involve such 

coercive conditions as to constitute the functional 

equivalent of an arrest. Finally, an arrest or 

“custodial detention” must be supported by probable 

cause.

Commonwealth v. Ellis, 662 A.2d 1043, 1047 (Pa. 1995) (citations 

omitted).

“The appellate courts have mandated that law enforcement officers, 

prior to subjecting a citizen to an investigatory detention, must harbor at 

least a reasonable suspicion that the person seized is then engaged in 

unlawful activity.” Commonwealth v. Barber, 889 A.2d 587, 593 

(Pa.Super. 2005) (citation omitted). “Reasonable suspicion is a less 

demanding standard than probable cause because it can be established by 

information that is different in quantity and quality than that required for 

probable cause; it can arise from information that is less reliable than that 

required to show probable cause.” Commonwealth v. Emeigh, 905 A.2d 

995, 998 (Pa.Super. 2006) (citation omitted).

To meet the standard of reasonable suspicion, “the 

officer must point to specific and articulable facts 

which, together with the rational inferences 

therefrom, reasonably warrant the intrusion. In 

ascertaining the existence of reasonable suspicion, 

we must look to the totality of the circumstances to 

determine whether the officer had reasonable 

suspicion that criminal activity was afoot.” Barber, 

supra at 593 (citations and quotations omitted). 

Further, “police officers need not personally observe 
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the illegal or suspicious conduct, but may rely upon 

the information of third parties, including ‘tips’ from 

citizens.” Id.

Commonwealth v. Smith, 904 A.2d 30, 35-36 (Pa.Super. 2006).

In cases where the police act as a result of an anonymous tip, we have 

required additional corroborating evidence.

While a tip can be a factor, an anonymous tip alone 

is insufficient as a basis for reasonable suspicion. 

[Commonwealth v.] Wimbush, 750 A.2d [807,] 

811 [(Pa. 2000)]; [Commonwealth v.] Jackson, 

698 A.2d [871,] 572 [(Pa. 1997)]. Such anonymous 

tips must be treated with particular suspicion. 

Jackson, 698 A.2d at 573. Likewise, presence in a 

high crime area alone or flight alone does not form 

the basis of reasonable suspicion. Commonwealth 

v. Cook, [] 735 A.2d 673, 677 (Pa. 1999). 

However, a combination of these factors may be 

sufficient. See [Commonwealth v.] Zhahir, 751 

A.2d [1153,] 1157 [(Pa. 2000)] (noting that 

suspicious conduct corroborates an anonymous tip); 

Cook, 735 A.2d at 677 (stating that circumstances 

which alone would be insufficient may combine to 

show reasonable suspicion); []; [Commonwealth 

v.] Pizzaro, 723 A.2d [675,] 680 [(Pa.Super. 1998)] 

(finding that flight along with presence in heavy 

drug-trafficking area may demonstrate reasonable 

suspicion). . . . Terry [v. Ohio], 392 U.S. [1,] 22 

[(1968)] (innocent facts, when taken together, may 

warrant further investigation); Commonwealth v. 

Riley, 715 A.2d 1131, 1135 (Pa.Super. 1998) (“a 

combination of circumstances, none of which alone 

would justify a stop, may be sufficient to achieve a 

reasonable suspicion”).

Commonwealth v. Leonard, 951 A.2d 393, 396-397 (Pa.Super. 2008), 

quoting In the Interest of M.D., 781 A.2d 192, 196-197 (Pa.Super. 2001).
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Here, the record supports the trial court’s conclusion that the police 

were able to independently corroborate the information received from the 

anonymous tip. Specifically, the record reflects that the anonymous tip 

included a description of the individuals involved, a description of the vehicle 

occupied by appellant, and an accurate recitation of the vehicle’s license 

plate number. (Notes of testimony, 3/22/17 at 8-9.) The anonymous caller

also described a transaction in which an individual wearing a black and red 

hoodie approached the driver’s side of appellant’s vehicle, accepted money 

from the driver of the vehicle, and then went into apartment A at 932 West 

Marshall Street. (Id. at 7.) Through his testimony, Officer Fritchman 

independently corroborated the information received from the anonymous 

caller upon his arrival to the scene:

I observed the black sedan bearing the same 

registration [plate] that the anonymous caller 

provided. I’m not sure of what that actual 

registration plate is right now. I observed a white 

male sitting inside the driver’s seat. I then went a 

block up and I sat there. And then I observed a 

black male wearing a black and red sweatshirt walk 

out of 932 [West Marshall Street] and approached 

the male in the driver’s seat, handed him something, 

and then turned around and walked back into his 

house.

Id. at 9. Officer Fritchman further testified that based on his training and 

experience, he believed that a drug transaction had just occurred. (Id.)

Accordingly, we find that the suppression court did not abuse its 

discretion when it denied appellant’s motion to suppress. The record 
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demonstrates that the information provided by the anonymous caller was 

independently corroborated by the police and that the police had the 

requisite reasonable suspicion in order to conduct an investigatory detention. 

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

conclusions drawn from those facts are correct. Accordingly, appellant’s first 

issue is without merit.

Appellant next argues that the trial court erred by “rely[ing] on 

credibility where conflicting testimony causes it to base an opinion on 

speculation or conjecture or a guess in [an] underlying criminal matter.” 

(Appellant’s brief at 11.) To bolster this argument, appellant cites 

Commonwealth v. Bennett, 303 A.2d 220 (Pa.Super. 1973). The 

Bennett court held that “[w]hen the testimony is so contradictory on the 

basic issues as to make any verdict based thereon pure conjecture the jury 

should not be permitted to consider it.” Id. at 221 (citation omitted, 

emphasis added). We find Bennett to be inapposite when applied to the 

present case.

As noted above, when considering whether to grant a motion to 

suppress evidence, credibility determinations are within the exclusive 

purview of the trial court. Commonwealth v. Yorgey, 188 A.3d 1190, 

1198 (Pa.Super. 2018), citing Commonwealth v. McCoy, 154 A.3d 813, 

815-816 (Pa.Super. 2017). Here, the trial court found the testimony of

Officers Fritchman and Robinson to be credible. (Trial court opinion, 
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11/1/17 at 14.) Moreover, the trial court explicitly stated that it did not find 

appellant’s testimony, nor the testimony of appellant’s witness to be 

credible. (Id.) The record before us contains ample basis for such a 

determination. Accordingly, we are not permitted to disturb the trial court’s 

credibility determinations, and appellant’s second issue is without merit.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/24/18