Com. v. Diaz, R. ( 2020 )

J-S67041-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYMOND LEON DIAZ :
:
Appellant : No. 662 MDA 2019
Appeal from the Judgment of Sentence Entered February 28, 2019
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002329-2017
BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 24, 2020
Appellant Raymond Leon Diaz appeals from the judgment of sentence
entered in the Court of Common Pleas of Lackawanna County on February 28,
2019, following a jury trial. We affirm.
In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court
thoroughly and accurately detailed the relevant facts and procedural history
herein as follows:
PROCEDURAL HISTORY AND FACTUAL BACKGROUND
This case initiated with the filing of the criminal complaint
on August 17, 2017, and, counseled by a public defender,
Appellant waived his preliminary hearing October 12, 2017 with
the understanding he would enter a negotiated guilty plea. (See,
Petition for the Appointment of New Counsel filed 10/23/2017).
Due to a perceived conflict, the Honorable Judge Michael J.
Barrasse granted Appellant's petition for new counsel, appointing
trial counsel to assume his representation. (Order, J. Barrasse,
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* Former Justice specially assigned to the Superior Court.
J-S67041-19
11/3/2017). Counsel filed an omnibus pretrial motion, which
Judge Barrasse heard and thereafter denied. (See, Order, J.
Barrasse, 3/29/2018; Order, J. Barrasse, 8/20/2018;
Memorandum of Law, J. Barrasse, 10/10/2018). Upon discovery
of a scheduling conflict, Judge Barrasse assigned Appellant's case
to this [c]ourt for trial. After argument, this [c]ourt denied
Appellant's motion to dismiss pursuant to Pennsylvania Rule of
Criminal Procedure 600 filed November 21, 2018 immediately
before trial commenced. (N.T., 12/3/2018, p. 6).
On December 5, 2018, following a bifurcated criminal trial
that commenced December 3, 2018, a jury found the Appellant []
guilty of all offenses charged in the instant case. (See, Verdict
Slips, filed 12/5/2018). The amended criminal information filed
against Appellant included one count of possession of a controlled
substance with intent to deliver a quantity of cocaine, in violation
of 35 Pa.C.S.A. §780-113(a)(30), two counts of delivery of a
controlled substance, cocaine, in violation of 35 Pa.C.S.A. §780-
113(a)(30), two counts of criminal use of a communication facility,
in violation of 18 Pa.C.S.A. §7512(a), one count of possession of
a firearm prohibited, in violation of 18 Pa.C.S.A. §6105(a)(1), one
count of possession of marijuana, in violation of 35 Pa.C.S.A.
§780-113(a)(31), one count of possession of a controlled
substance, in violation of 35 Pa.C.S.A. §780-113(a)(16), and one
count of possession of drug paraphernalia, in violation of 35
Pa.C.S.A. §780-113(a)(32). The Commonwealth charged
Appellant as set forth above in connection with incidents occurring
August 15th and 16th of 2017, on which dates Lackawanna County
narcotics investigators conducted controlled drug purchases
through the use of a confidential informant (hereinafter “C.I.”)
then executed a search warrant of Appellant's residence. Due to
the Commonwealth's need to present certain evidence this [c]ourt
deemed too prejudicial against Appellant to establish the elements
of possession of a firearm prohibited, once the jury rendered its
verdict regarding all above-indicated drug-related offenses, this
[c]ourt proceeded to a second phase of trial with regard to the
single firearm charge before the case concluded.
At the time of trial, the Commonwealth first presented the
testimony of the C.I., Karl Racavitch, a 30 year old male from
West Scranton, Pennsylvania. (N.T., 12/4/2018, pp. 16-18). He
discussed his history of drug use, explaining that he used
marijuana and synthetic marijuana, commonly referred to as spice
for approximately 11 years. Id. at 17-19. He also explained that
in August 2017, he was on probation in connection with a felony
drug conviction for selling marijuana and spice in 2014. Id. at 18.
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At that time, his probation officer having found a small
amount of marijuana in his possession, Racavitch reached out to
Detective Harold Zech of the Lackawanna County District
Attorney's Office, offering to work as a C.I. to avoid a probation
violation. Id. at 19. He told Detective Zech that he knew his
neighbor, “T,” identified as Appellant, to be selling cocaine out of
his home. Id. at 19-20. He understood that if he worked as a C.I.,
he may not incur a probation violation for the small amount of
marijuana he possessed and Detective Zech would give him
$200.00 to move from his current residence, as he feared
Appellant due to having a shared history of drug-crime
involvement. Id. In fact, he detailed that on a day during the
summer of 2017, he returned home from work to find Appellant
on his back porch. Id. at 21. Appellant indicated that he had been
tied up and robbed of all of his drugs and asked Racavitch where
he could get a gun. Id.
Racavitch testified that he had known Appellant for six or
seven months. Id. at 22. They met through mutual friends, and
Appellant lived behind him, sharing a backyard area. Id. Racavitch
indicated he had been inside Appellant's home “[a]t least 20”
times. Id. He described that to enter, he walked up about four
steps to “a fenced back porch” then walked “through a kitchen
door,” through the kitchen, to find a bedroom and a room to the
right. Id. at 23. He saw Appellant at the residence each of the
"[a]t least 20" times that he went there.
Id.
Turning to August 15, 2017, Racavitch testified that he
agreed to participate in a controlled drug purchase from Appellant.
Id. at 23-24. At his home, in the presence of Detective Zech,
Racavitch placed a call to Appellant seeking “to purchase a ball of
crack cocaine,” which would weigh approximately 3.5 grams. Id.
at 24-25. Detectives recorded the phone call, and the
Commonwealth played if for the jury. Id. at 25. About a minute
and a half after placing the call, Racavitch went to Appellant's
home on North Hyde Park Avenue in Scranton. Id. at 30.
Immediately prior, Detective Zech thoroughly searched him and
furnished him $220.00 to purchase the crack cocaine. Id. at 31.
Racavitch detailed that when he arrived at Appellant's back
porch, Appellant had already been waiting for him. Id. at 33. They
walked into the kitchen, they spoke briefly about drugs and the
drug business, Racavitch handed Appellant the $220.00, Appellant
left the kitchen and returned approximately one minute later with
a quantity of crack cocaine. Id. He did not encounter or hear
anyone else in the home while there. Id. at 35. Thereafter,
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Racavitch returned to his home, met Detective Zech there, handed
him the drugs and submitted to another thorough search. Id. at
37.
On August 16, 2017, the next day, Detective Zech again
went to Racavitch's home. He again placed a phone call to
Appellant, which law enforcement recorded and played at the time
of trial. Id. at 39. He requested the same amount of crack cocaine
purchased the day before. Id. at 41. Detective Zech again
searched Racavitch and provided him $220.00. Id. at 41-42.
Within approximately a minute and a half of getting off the phone
with Appellant, Racavitch went to Appellant's back porch. Id. at
42-43. Appellant opened “the back door fence” and “kitchen door”
with “no shirt on.” Id. at 43. Appellant commented that Racavitch
appeared nervous. Id. Nonetheless, they went into the kitchen, he
gave Appellant the $220.00 Detective Zech provided, and
Appellant handed him “[a] little twist tie baggy of crack.” Id. at
43-44. Again, he did not encounter or hear anyone else in
Appellant's residence. Id. at 44. Upon returning home to Detective
Zech, Racavitch handed him the crack cocaine and submitted to a
thorough strip search. Id. at 46.
The Commonwealth next called Detective Harold Zech to
testify. He detailed his law enforcement background, explained his
involvement specifically with the narcotics unit at the Lackawanna
County District Attorney's Office, and shared his knowledge about
the drug trade as well as criminal investigations into the same. Id.
at 55-68. He then corroborated that he met the C.I., Racavitch,
through Lackawanna County Adult Probation as he hoped to avoid
a probation violation by working with law enforcement. Id. at 68-
69. The C.I. indicated that his neighbor, “T,” later identified as
Appellant, sold drugs out of his residence, located at 662 North
Hyde Park Avenue in Scranton. Id. at 69. A law enforcement
database check of the individuals known to reside at the given
address confirmed Appellant's association therewith. Id.
Having verified the information provided by the C.I.,
Detective Zech met him to conduct their first controlled purchase
on August 15, 2017. Id. at 70. Detective Zech noted the unique
nature of the situation in that the C.I. lived directly behind the
target drug dealer, Appellant. Id. The C.I. placed a phone call to
Appellant in the detective's presence, positively identifying the
Appellant as Raymond Diaz, and they agreed to meet at
Appellant's home. Id. at 70-71. Before sending the C.I. to the
Appellant's residence, Detective Zech performed a strip search of
the C.I. and provided him $220.00, having photocopied the bills
and recorded the serial number thereon. Id. at 71-72. He then
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surveilled and photographed the C.I.'s trip to Appellant's house
from a second floor window in the C.I.'s home. Significantly, the
Commonwealth admitted into evidence a photograph taken by the
detective of the C.I. “being greeted at the doorway by Raymond
Diaz” and one of the C.I. “being escorted out by Raymond Diaz.”
Id. at 80. Once the C.I. returned home, Detective Zech met him
in the kitchen, received the quantity of suspected cocaine
obtained, and performed another strip search of the C.I. Id. at 81.
The detective explained that he conducted a field test of the
substance, which yielded a positive result for cocaine, and
packaged the same for further testing by the Pennsylvania State
Police Crime Lab. Id. at 83.
Detective Zech continued testifying by detailing the events
of August 16, 2017. On that date, the detective and the C.I. met
at the C.I.'s residence and again arranged for a controlled
purchase to take place. Id. at 85. The detective strip searched the
C.I., provided him prerecorded cash in the amount of $220.00,
sent him on his way to Appellant's home, and surveilled from the
second floor vantage point. Id. at 85-86. The Commonwealth
admitted a series of photos depicting the C.I. entering Appellant's
home then being escorted out by Appellant, shirtless at the time,
as described by the C.I. Id. at 89. When the C.I. returned to his
house, Detective Zech again met him in the kitchen, received the
suspected cocaine, performed a strip search of the C.1.,
conducted a positive field test, and packaged the evidence for
further testing. Id. at 91-92.
Detective Zech explained that after completing two
successful controlled purchases of narcotics, he applied for a
search warrant for Appellant's residence. Id. at 94. Upon securing
one, later in the day on August 16, 2017, he led law enforcement
in executing the search warrant at approximately 8:00 p.m. Id. at
95-96. Surveillance detectives watched the residence at 662 North
Hyde Park Avenue in anticipation of the search warrant and
observed Appellant leaving said residence. Id. at 96-97. Following
him therefrom, detectives initiated a traffic stop of Appellant's
vehicle. Id. at 97. Detectives detained Appellant, found to have in
his possession $1,945.00, including some of the money used in
each controlled purchase conducted, an Apple iPhone, and a
Samsung flip phone, identified as the target phone bearing the
number called by the C.I. on both occasions that he purchases
narcotics from Appellant. Id. at 98. Appellant reportedly
immediately denied living at the 662 North Hyde Park Avenue. Id.
at 99.
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Detective Zech indicated that upon executing the search
warrant at Appellant's residence, law enforcement encountered
Joisey Blake, who[] was Mirandized and who[] became “extremely
irate” with the detective. Id. at 99-100. Nonetheless, the search
continued, and after a canine indicated the presence of narcotics,
police found a black duffel bag containing in excess of 20 grams
of cocaine and a Taurus 38 Special Revolver in a room off of the
bedroom. Id. at 101-103. Additional items located included
sandwich baggies, generally used to package controlled
substances, a safe containing sandwich baggies and other drug
paraphernalia, men's clothing and shoes, a prescription bill bottle
bearing Appellant's name and filled August 4, 2017, and a small
amount of marijuana in the dresser within the same area where
law enforcement recovered all other items. Id. at 110-115.
Detective Zech concluded his direct testimony with some
discussion of the relevance of the items seized from Appellant's
residence, based on his training within the field of narcotics
investigations, and in reference to establishing that Appellant
indeed resided at the property searched. Id. at 115-128.
The Commonwealth next presented the testimony of
Jennifer Libus, forensic scientist for the Pennsylvania State Police
at their Wyoming Regional Laboratory in Pittston, Pennsylvania.
Id. at 130. She confirmed that the evidence submitted for testing,
obtained from Appellant by the C.I. on August 15 and 16, 2017,
contained approximately three and 3.13 grams of cocaine,
respectively. Id. at 136-138. She further indicated that evidence
seized from the black gym bag located in Appellant's residence
and submitted for testing contained various quantities of cocaine.
Id. at 138-141. Finally, she testified that the vegetable matter
found in Appellant's dresser drawer and submitted for testing
constituted approximately 1.24 grams of marijuana. Id. at 142.
The Commonwealth next called Detective Vincent
Butkiewicz of the Lackawanna County District Attorney's Office.
Id. at 172. He testified as to his role as a canine handler in the
narcotics unit. Id. at 173. Appellant stipulated that Detective
Butkiewicz's canine alerted him to the presence of narcotics in the
residence searched. Id. at 174-175. The detective further
confirmed that he did not encounter any other male or items
belonging to any other male within the residence. Id. at 177.
Finally, prosecutors presented the testimony of Detective
Tom Davis, another member of the Lackawanna County District
Attorney's Office narcotic unit. Id. at 180-181. He indicated that
he participated in the investigation regarding Appellant's drug
activity by assisting with surveillance and in executing the search
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warrant on August 16, 2017. Id. at 182-183. When Appellant left
his residence prior to law enforcement's execution of the search
warrant, Detective Davis followed him in his vehicle and initiated
a traffic stop. Id. at 183-184. Detective Davis explained that at
the time of the traffic stop, he and assisting detectives took
Appellant into custody without incident, read him his Miranda
Rights, and informed him of the search warrant being executed at
662 North Hyde Park Avenue. Id. at 184. Appellant indicated that
he did not live on the first floor but lived on the second floor at
said address. Id. A search of his person yielded a total of
$1,945.00 and a smart phone, and a search of his vehicle resulted
in recovering a Samsung flip phone. Id. at 185. Detective Davis
transported Appellant back to 662 North Hyde Park Avenue and
learned that following the search performed, investigators found
over 20 grams of cocaine, a silver Taurus 38 caliber handgun, drug
packaging materials, and a pill bottle bearing Appellant's name.
Id. at 186-187.
Thereafter, the Commonwealth rested with respect to the
drug related charges, and Appellant commenced his case-in-chief
calling witness Joisey Blake, his mother. Id. at 190. She indicated
that her daughter lived in the second floor apartment at 662 North
Hyde Park Avenue and her sister lived in the first floor apartment
at the same address. Id. at 191. She testified that her sister's
friend Josh and his two-year-old child lived at the apartment with
her. Id. at 192. On the day of the search warrant, she went to the
first floor apartment to retrieve her phone charger. Id. at 191-
192. Her sister was not home as she had been visiting their
mother in Philadelphia at the time. Id. at 192-193. Josh had
apparently stopped living in the first floor apartment as her sister
no longer wanted him there. Id. at 193. Blake indicated she saw
him collecting his belongings approximately two weeks after the
execution of the search warrant in this case. Id. at 193.
Appellant next testified on his own behalf. He stated that on
August 15 and 16, 2017, he and his aunt's boyfriend Josh had
been playing a video game when Josh asked him to let the C.I. in
and out of the apartment. Id. at 202-203. Appellant explained that
the C.I. would occasionally come over to buy things from Josh. Id.
He claimed to live at 3027 North Taney Street in North
Philadelphia, not at 662 North Hyde Park Avenue. Id. at 203. He
maintained that Josh lived at the apartment. Id. He denied ever
having a phone call with the C.I.; he denied any knowledge
regarding the Samsung flip phone located in his vehicle when
stopped by law enforcement; and he denied having any “buy
money” comingled with the $1,945.00 recovered from his person.
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Id. at 205-207. Appellant did, however, ultimately acknowledge
ties to the residence located at 662 North Hyde Park Avenue
through family members. Id. at 210.
Once Appellant rested his case, the Commonwealth re-
called Detective Zech in rebuttal. He indicated that no evidence
suggested that a minor child resided in the apartment at issue. Id.
at 215. Detectives did not find any baby clothes or toys, and they
did not find any mailings to a Josh or other evidence of another
male living in the home. Id. at 215-216.
After closing arguments relative to the first phase of trial,
the jury returned a verdict of guilty as to all crimes charged:
possession with intent to deliver cocaine, two counts of delivery
of cocaine, two counts of criminal use of a communication facility,
possession of marijuana, possession of cocaine, and possession of
drug paraphernalia. The Court proceeded to the second phase of
trial, specifically regarding the charge of possession of a firearm
prohibited.
The Commonwealth called Lackawanna County Clerk of
Judicial Records Mauri Kelly to testify. (N.T., 12/5/2018, p. 63).
She detailed that in a Lackawanna County criminal case docketed
at 2012 CR 756, Appellant [ ] entered a guilty plea July 2, 2013
to felony charges of delivery of a controlled substance and
possession with intent to deliver a controlled substance. Id. at 65-
66. She further indicated that Appellant received a sentence of
incarceration of 27 to 60 months with a period of probation to
follow. Id. at 66.
Finally, the Commonwealth called Lackawanna County
Detective Chris Kolcharno to testify as to his limited involvement
in Appellant's case. Id. at 67-68. Specifically, on September 7,
2018, Detective Zech requested that Detective Kolcharno test fire
the weapon seized at the time of the search warrant executed at
662 North Hyde Park Avenue. Id. at 68-69. He indicated that the
Taurus 38 caliber revolver recovered from Appellant fired as
expected and was indeed operational. Id. at 69-71.
After the close of evidence and following this [c]ourt's
instruction, the jury returned a guilty verdict as to the possession
of a firearm prohibited charge. On February 28, 2019, this [c]ourt
sentenced Appellant with respect to all charges to an aggregate
term of incarceration of 138 months to 280 months in a state
correctional institution. (N.T., 2/28/2019, p. 11).
Trial Court Opinion, filed 8/22/19, at 3-12.
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On March 8, 2019, Appellant filed his Motion for Reconsideration of
Sentence, and the trial court denied the same on April 16, 2019. On April
24, 2019, Appellant filed a timely notice of appeal with this Court, and both
the trial court and Appellant have complied with Pennsylvania Rule of
Appellate Procedure 1925.
In his Concise Statement of Errors Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b) Appellant raises nine claims for relief. In his appellate brief,
Appellant presents two issues for our review:1
1. Did the trial court err in failing to grant Appellant’s motion for
suppression of evidence based upon deficiencies in the affidavit
of probable cause supporting the issuance of a search warrant
for the premises located at 622 North Hyde Park Avenue,
Scranton, Pennsylvania where said affidavit relies almost
exclusively upon statements made by a confidential informant
whose veracity was not established?
2. Was the evidence presented at the time of trial sufficient to
establish constructive possession of the contraband identified
in Counts 1 (possession of a controlled substance with the
intent to deliver), Count 6 (possession of a firearm prohibited);
Count 7 (possession of marijuana) and Count 8 (possession of
a controlled substance [cocaine]) in the amended criminal
information where the uncontroverted evidence established
____________________________________________
1 In his concise statement, Appellant presented the trial court with additional
challenges to the sufficiency of the evidence and to the weight of the evidence.
Appellant also argued the trial court had erred in failing to strike certain jurors
for cause. He has abandoned these claims on appeal; therefore, we find them
waived. Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super. 2011)
(issues raised in Pa.R.A.P. 1925 concise statement that are not developed in
appellate brief are abandoned); see also Commonwealth v. Woodward,
129 A.3d 480, 509 (Pa. 2015) (holding that “where an appellate brief fails to
. . . develop an issue in any [] meaningful fashion capable of review, that claim
is waived[]”).
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that multiple individuals had access to the area where said
contraband was located?
Brief for Appellant at 5 (unnecessary capitalization omitted).
When considering the suppression court’s denial of Appellant’s motion
to suppress evidence, we employ a well-settled standard of review:
An appellate court's 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, the appellate court is bound
by those 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 plenary
review.
Commonwealth v. Bernard, 2019 WL 4180655, at * 3 (Pa.Super. Sept. 4,
2019) (citation omitted).
Appellant posits “the failure of law enforcement to corroborate the
information provided by the Confidential Informant renders the Affidavit of
Probable Cause defective.” Brief of Appellant at 23. Appellant submits the
Affidavit of Probable Cause does not contain facts bolstering the then
confidential informant’s veracity. Id. Appellant contends officers did not
attempt to verify the phone number the confidential informant had provided
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to them belonged to Appellant, and he further avers that police did not witness
the drug transaction. Appellant also stresses officers admitted that other
individuals lived at that location. Id.
With regard to law enforcement’s reliance upon a confidential informant,
the Bernard Court has stated:
An arrest or ‘custodial detention’ must be supported by probable
cause:
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 [person] 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.
Information received from confidential informants
may properly form the basis of a probable cause
determination. Where the officers' actions resulted from
information gleaned from an informant, in determining
whether there was probable cause, the informant's
veracity, reliability and basis of knowledge must be
assessed.
An informant's tip may constitute probable cause
where police independently corroborate the tip, or where
the informant has provided accurate information of
criminal activity in the past, or where the informant
himself participated in the criminal activity.
Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa.
Super. 2011) (cleaned up). Our Supreme Court “held that a
determination of probable cause based upon information received
from a confidential informant depends upon the informant's
reliability and basis of knowledge viewed in a common sense, non-
technical manner.” Commonwealth v. Clark, 611 Pa. 601, 28
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A.3d 1284, 1288 (2011) (citation omitted); see also
Commonwealth v. Sanchez, 589 Pa. 43, 907 A.2d 477, 488
(2006), quoting United States v. Tuttle, 200 F.3d 892, 894 (6th
Cir. 2000) (“[I]nformation received from an informant whose
reliability is not established may be sufficient to create probable
cause where there is some independent corroboration by police of
the informant's information.”); see also Commonwealth v.
Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (citation omitted)
(same).
Id.
Herein, the suppression court discussed relevant caselaw and
concluded, inter alia, that law enforcement independently had corroborated
the confidential informant’s tip based upon the following evidence:
Furthermore, an informant's tip may constitute probable
cause to arrest or search where police independently corroborate
tip, or where the informant has provided accurate information of
criminal activity in past, or where the informant participated in
criminal activity. Commonwealth v. Luv, 735 A,2d 87 (Pa.
Super. 1999); See also, Commonwealth v. Gray, 503 A.2d
921, 926 (Pa. 1985) (the court can take into consideration the
reliability of the tip along with the corroborative efforts of the
officers when determining if probable cause has been
established).
The United States Supreme Court in [Illinois v.]Gates [462
U.S. 213 (1983)] recognized that, in instances where the affidavit
is deficient in establishing the informant's veracity, reliability, or
basis of knowledge, a strong showing with respect to the other
elements-or the existence of some other indicia of reliability may
compensate. Illinois v. Gates, 462 U.S. 213 (1983). "A
determination of probable cause based upon information received
from a confidential informant depends upon the informant's
reliability and basis of knowledge viewed in a common sense, non
-technical manner." Commonwealth v. Luv, 735 A.2d 87, 90
(Pa. 1999)
In Commonwealth v. Luton, the Pennsylvania Superior
Court found a police-conducted “controlled buy” sufficiently
corroborated neighbors’ complaints about illegal sales of narcotics
at defendant's home and provided probable cause for issuance of
warrant to search defendant's home. Commonwealth v. Luton,
672 A.2d 819 (Pa. Super, 1996),
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Finally, in Commonwealth v. Baker, the Pennsylvania
Superior Court found the informant's allegations that the
defendant was selling drugs, corroborated by police officer’s first
hand observations, where the informant entered the residence,
and returned with cocaine, were sufficient factors to establish
probable cause to sustain a search warrant. Commonwealth v.
Baker, 615 A.2d 23 (Pa.Super. 1992).
In the present case, this [c]ourt finds sufficient probable
cause to support the issuance of a search warrant. The CI provided
Det. Zech with a physical description of [Appellant], the
[Appellant’s] cell phone number, as well as [Appellant’s] home
address, (N.T., p. 5). The CI identified [Appellant] via photograph.
(N.T., p. 6). The CI then provided consent to have his or her
communications with [Appellant] intercepted and recorded. (N.T.,
p. 7). As such, Det. Zech listened to the CI call [Appellant] and
arrange a purchase of cocaine at [Appellant’s] residence. (N.T., p.
7). While additional officers established surveillance around the
[Appellant’s] residence, Det. Zech searched the CI and provided
a sum of prerecorded serialized money to use in the drug
transaction. (N.T., p. 7). Meanwhile, Det. Condrad observed
[Appellant] enter his residence at 662 North Hyde Park Avenue.
(N.T., p. 7-8). Simultaneously, [Appellant] called the CI and
directed the CI to his residence. (N.T., 7-8). Det. Zech through
surveillance, he observed the CI walk to the rear north end of 662
North Hyde Park Avenue. (N.T., p. 8). Thereafter, he viewed the
CI exit the residence, and surrender a quantity of cocaine. (N.T.,
p. 10).
The next day, following the same protocol with Det. Zech,
the CI conducted another controlled buy at [Appellant’s] residence
and surrendered a quantity of cocaine. After completing two
controlled buys, as well as the CI's identification of [Appellant],
Det Zech applied for and obtained a search warrant of 662 North
Hyde Park Avenue. (N.T., p. 9, 10-11, 12-13). Officers entered
the residence, they located a pill bottle bearing [Appellant’s] name
on a bedroom dresser, a small amount of marijuana, as well as
men's clothing and sneakers throughout in the apartment. (N.T.,
p. 15). A K-9 search resulted in a positive identification for
narcotics in a black gym bag. (Affidavit of Probable Cause, p, 1).
Inside the gym bag, officers located a large twist bag containing
twenty-three (23) grams of powder cocaine, one twist bag
containing two (2) grams of powder cocaine, two twist bags
containing two (2) grams of crack cocaine, and men's apparel.
(Affidavit of Probable Cause, p. 1). Near the gym bag, officers
discovered an unloaded Taurus .38 revolver. (Affidavit of Probable
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Cause, p. 1). Subsequently, officers checked [Appellant’s] criminal
record and learned of his status as a convicted felon prohibited
from owning a firearm. (Affidavit of Probable Cause, p. 1-2). In
addition, officers located a safe in the living room, which contained
small plastic zip lock bags and plastic sandwich bags. (Affidavit of
Probable Cause, p. 2).
Therefore, this [c]ourt finds sufficient probable cause to
support the issuance of a search warrant regarding [Appellant’s]
residence.
Suppression Court Opinion, filed 10/10/18, at 7-8.
Based upon our standard of review and the evidence presented at the
suppression hearing, we find no abuse of discretion or error of law in the
suppression court’s denial of Appellant’s suppression motion. The confidential
informant provided Detective Zech with a detailed physical description of
Appellant and an address at which he was residing and from which he was
selling cocaine. N.T. 8/8/18, at 6. Detective Zech also obtained a cellular
phone number for Appellant and learned a controlled purchase could be made
by contacting Appellant at that number. Id. at 6-7. The confidential
informant contacted Appellant and arranged to purchase cocaine from him in
Detective Zech’s presence. Id. at 7.
Surveillance was established, and Detective Zech accompanied the
confidential informant to an area near the residence. The confidential
informant was subjected to a strip search and provided with a quantity of
marked currency to make the purchase. Detective Zech intercepted a second
phone call directing the confidential informant to come to the residence, and
Detective Condrad witnessed Appellant enter the same. Id. at 7-8. Within
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minutes, Detective Zech confirmed a narcotic transaction had occurred. Id.
at 8. This routine was repeated for a second purchase. Id. at 9-10.
Viewing the totality of the evidence in a common sense, non-technical
manner, we conclude that law enforcement had probable cause to believe that
criminal activity likely was afoot. Police were able to corroborate twice that
Appellant acted in conformity with communications in which he and the
confidential informant had engaged. Moreover, the confidential informant
confirmed that he had prior drug dealings with Appellant. See
Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1288 (2011)
(informant's tip may constitute probable cause where the informant himself
participated in the criminal activity). Therefore, suppression was not
warranted, and Appellant's first issue lacks merit. See Bernard, supra.
Appellant next challenges the sufficiency of the evidence to support the
guilty verdicts on Count 1 (PWID); Count 6 (Possession of a Firearm
Prohibited); Count 7 (Possession of Marijuana); and Count 8 (Possession of a
Controlled Substance) of the Amended Information. Specifically, Appellant
maintains that Appellant had neither actual nor constructive possession of the
contraband, a necessary element of each crime, because it was not found on
his person. Brief of Appellant at 25. Appellant maintains that the record is
“totally devoid” of any evidence suggesting he had dominion and control over
the gun and drugs inside the duffel bag and that it contains nothing even to
suggest that Appellant knew illegal narcotics and a firearm were located in an
adjacent room. Id. at 26-27.
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This Court’s standard of review of a challenge to the sufficiency of the
evidence is as follows:
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 [trier] 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.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) (citation
omitted), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011).
When reviewing Appellant’s challenge to the sufficiency of the evidence
with regard to a PWID conviction, we are mindful that
[t]he Commonwealth must prove both the possession of
the controlled substance and the intent to deliver the controlled
substance. It is well settled that all the facts and circumstances
surrounding possession are relevant in making a determination
of whether contraband was possessed with intent to deliver.
In Pennsylvania, the intent to deliver may be inferred from
possession of a large quantity of controlled substance. It follows
that possession of a small amount of a controlled substance
supports the conclusion that there is an absence of intent to
deliver.
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Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008), appeal
denied, 600 Pa. 744, 964 A.2d 894 (2009).
Counts 7 and 8, concern Section 780–113 of The Controlled Substance,
Drug, Device and Cosmetic Act, which states in relevant part:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
(16) Knowingly or intentionally possessing a controlled or
counterfeit substance by a person not registered under this act,
or a practitioner not registered or licensed by the appropriate
State board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this act.
***
(30) Except as authorized by this act, the manufacture, delivery,
or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. §§ 780–113(a)(16), (30).
Finally, Appellant challenges his convictions of persons not to possess a
firearm under 18 Pa.C.S.A. § 6105, which, in relevant part, provides the
following:
§ 6105. Persons not to possess, use, manufacture,
control, sell or transfer firearms
(a) Offense defined.—
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
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possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
***
(c) Other persons.--In addition to any person who has
been convicted of any offense listed under subsection (b),
the following persons shall be subject to the prohibition of
subsection (a):
***
(2) A person who has been convicted of an offense
under the act of April 14, 1972 (P.L. 233, No. 64), known as
The Controlled Substance, Drug, Device and Cosmetic Act,
or any equivalent Federal statute or equivalent statute of
any other state, that may be punishable by a term of
imprisonment exceeding two years.
18 Pa.C.S.A. § 6105(a), (c).
Appellant does not dispute that he is prohibited from possessing a
firearm; however, he contends the Commonwealth failed to prove that he
actually possessed the firearm. We agree with Appellant that possession is
an element of the firearms offense and that the firearm was not discovered
on Appellant’s person so as to establish actual possession. See
Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132, 134 (1983)
(holding that actual possession is shown by proving the contraband was found
on the defendant’s person). However, we disagree with Appellant’s claim that
there is “no evidence to even suggest that [ ] Appellant knew the gun and
duffle bag were present in the adjacent room.” Brief for Appellant at 27.
Rather, to establish the element of possession, this Court has held that
“[p]ossession can be found by proving actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Parrish,
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191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted), appeal denied, 202 A.3d
42 (2019). We previously have determined:
Where a defendant is not in actual possession of the prohibited
items, the Commonwealth must establish that the defendant had
constructive possession to support the conviction. Constructive
possession is a legal fiction, a pragmatic construct to deal with the
realities of criminal law enforcement. We have defined
constructive possession as conscious dominion, meaning that the
defendant has the power to control the contraband and the intent
to exercise that control. To aid application, we have held that
constructive possession may be established by the totality of the
circumstances.
It is well established that, as with any other element of a
crime, constructive possession may be proven by circumstantial
evidence. In other words, the Commonwealth must establish facts
from which the trier of fact can reasonably infer that the defendant
exercised dominion and control over the contraband at issue.
Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).
Illegal possession of a firearm may be established by one’s constructive
possession thereof. Commonwealth v. McClellan, 178 A.3d 874, 879
(Pa.Super. 2018). In addition, the power and intent to control contraband
does not need to be exclusive to an appellant in order to find constructive
possession. Our Supreme Court has recognized that “constructive possession
may be found in one or more actors where the item in issue is in an area of
joint control and equal access.” Commonwealth v. Johnson, 611 Pa. 381,
26 A.3d 1078, 1094 (2011) (citation omitted). Further, contrary to Appellant’s
suggestion, the Commonwealth was permitted to establish Appellant’s
constructive possession via circumstantial evidence and the reasonable
inferences that arise therefrom. Parrish, supra.
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Herein, Appellant’s argument with respect to the possession element of
the charged crimes suffers from a fatal flaw- he views the evidence presented
at trial in the light most favorable to him. For example, he stresses that others
had access to the apartment. Brief of Appellant at 25-27. This position
ignores the fact that constructive possession is not necessarily exclusive.
Johnson, supra. Moreover, to the extent Appellant suggests the
Commonwealth was required to prove Appellant actually possessed the
contraband, he is in error. Parrish, supra.
Viewing the evidence in the light most favorable to the Commonwealth
as the verdict winner, we agree with the trial court that the evidence
sufficiently establishes his constructive possession of the firearm and drugs
the detectives seized as Appellant had the ability and intent to exercise control
over the contraband. As the trial court relevantly indicated:
At the time of trial in Appellant's case, the C.I. testified that
he informed Detective Zech that his neighbor, "T," identified as
Raymond Diaz, Appellant, sold cocaine. out of his home. (N.T.,
12/4/2018, pp. 19-20). The C.I. testified that he had known
Appellant for six or seven months. Id. at 22. They met through
mutual friends, had a history of being involved in drug related
crime together, and Appellant lived behind him, sharing a
backyard area. Id. In fact, he detailed that on a day during the
summer of 2017; he returned home from work to find Appellant
on his back porch to ask C.I. where he could get a gun, explaining
that he had recently been tied up and robbed of his drugs. Id. at
21.
C.I. indicated he had been inside Appellant's home "[a]t
least 20" times, and he saw Appellant at the residence each time
he went there. Id. at 22-23. He described that entering from the
back, he would walk up approximately four steps to a “fenced back
porch,” walk through the kitchen to a bedroom with a room “like
a closet” to the right. Id. at 23. He explained that on both August
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15 and August 16, 2017, having spoken to him on the phone, C.I.
went to Appellant's apartment to complete the two controlled
purchases in this case. Id. at 32-34, 42-44. With respect to the
purchase on August 15th, C.I. waited in the kitchen while Appellant
went into another room, reappearing “not even a minute later”
with a quantity of crack cocaine. Id. at 33-34. He further indicated
that Appellant went into the room to the right to retrieve the
cocaine on that occasion. Id. He did not encounter or hear anyone
else in the home while there. Id. at 35, 44.
Detective Zech testified that a law enforcement database
check of the individuals known to reside at 662 North Hyde Park
Avenue confirmed Appellant's association with the address. Id. at
69. In fact, photographs of Appellant meeting C.I. at the back door
on the dates of the controlled purchases were admitted into
evidence. Detective Zech also explained that prior to executing
the search warrant in this case, surveillance detectives watched
the residence at 662 North Hyde Park Avenue and observed
Appellant leaving said residence. Id. at 96-97. Following him
therefrom, detectives initiated a traffic stop of Appellant's vehicle,
detained him, and seized from him $1,945.00, including some of
the money used in each controlled purchase conducted, an Apple
iPhone, and a Samsung flip phone, identified as the target phone
bearing the number called by the C.I. on both occasions that he
purchases narcotics from Appellant. Id. at 97-98; see also, 182-
187. Finally, Detective Zech indicated that the search of the
residence yielded a black duffel bag containing in excess of 20
grams of cocaine and a Taurus 38 Special Revolver in the room
off of the bedroom, “the makeshift walk-in closet.” Id. at 101-103,
117. Additional items located included sandwich baggies,
generally used to package controlled substances, a safe containing
sandwich baggies and other drug paraphernalia, men's clothing
and shoes, a prescription bill bottle bearing Appellant's name and
filled August 4, 2017, and a small amount of marijuana in the
dresser within the same area where law enforcement recovered
all other items. Id at 110-115. Detectives did not find evidence of
any other male residing within the premises searched. Id. at 177;
215-216. No evidence suggested any other alleged or verified
member of the household sold or possessed any of the contraband
recovered.
Viewing it in the light most favorable to the Commonwealth,
this [c]ourt finds that the Commonwealth presented more than
sufficient evidence to establish that Appellant possessed a
quantity of cocaine, possessed a quantity of cocaine with intent to
deliver, possessed a quantity of marijuana, and possessed a
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firearm. The C.I. testified that Appellant resided in the 662 North
Hyde Park apartment, having been there for the purpose of
conducting drug transactions on numerous occasions. Detectives
verified Appellant’s connection to the address and corroborated
his drug trafficking activity with photographic evidence and having
seized a sum of cash which included some of the buy money used
in the controlled purchases conducted in this case as well as the
cell phone bearing the number the C.I. used to contact Appellant
to establish the drug transactions. Detectives found no evidence
of any other individual's involvement in the sale of illegal drugs
from the residence and recovered a substantial amount of cocaine,
the marijuana and the gun from a room that appeared to be
inhabited by Appellant, there being men's clothing and a
prescription bill bottle of his therein. Though the evidence did not
suggest anyone else had access to the drugs or the gun at the
relevant time, pursuant to the doctrine of constructive possession,
accessibility of others does not preclude possession by one. This
[c]ourt, therefore, submits that Appellant's convictions on the
instantly challenged offenses should be affirmed.
Trial Court Opinion, filed 8/22/19, at 19-22.
We agree with the trial court that when viewed in its totality, the
aforesaid direct and circumstantial evidence presented at trial along, with the
reasonable inferences that arise therefrom, reveals that Appellant had the
power and intent to control the cocaine, marijuana and revolver. The
confidential informant testified he watched Appellant enter a room and emerge
therefrom with a quantity of crack cocaine which he then sold to Appellant.
Detective Zech’s strip search of the confidential informant within minutes
thereafter revealed the cocaine. Clearly, this evidence demonstrated that
Appellant participated in drug-related criminal activity, the sale of cocaine to
the confidential informant, and established Appellant possessed the cocaine
with the intent to deliver the same to the confidential informant.
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In addition, Detective Zech testified he discovered a prescription bottle
bearing Appellant’s name along with men’s clothing and shoes in the same
area where the marijuana, revolver, and other drug paraphernalia were found.
Officers found no evidence that may have linked another male residence to
that room. It was reasonable for a jury to infer from this evidence that
Appellant was connected to, and therefore had constructive possession of, the
area of the home wherein marijuana and a firearm was kept. Thus, we
conclude the court provided a well-reasoned basis for its determination that
the Commonwealth presented sufficient evidence to support the possession
element and convictions of counts one, six, seven and eight. Accordingly, we
conclude Appellant is not entitled to relief on any of his challenges to the
sufficiency of the evidence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/24/2020
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