J-A16030-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LAMONT JOHNSON :
:
Appellant : No. 1838 EDA 2021
Appeal from the Judgment of Sentence Entered January 23, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0008104-2014
BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J.*
MEMORANDUM BY McCAFFERY, J.: FILED FEBRUARY 27, 2023
Lamont Johnson (Appellant) appeals nunc pro tunc from the judgment
of sentence entered in the Delaware County Court of Common Pleas, following
his jury convictions of possession of a controlled substance with intent to
deliver (PWID) and possession of drug paraphernalia.1 Appellant advances
two arguments: (1) the trial court erred in denying his motion to suppress
because the search warrant was not supported by probable cause, and in turn,
his confession was not voluntary; and (2) the trial court erred in denying his
request for disclosure of the confidential informant who provided information
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) & (32).
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that was included in the affidavit of probable cause that accompanied the
search warrant. For the reasons below, we affirm the judgment of sentence.
The relevant facts and procedural history underlying this appeal are as
follows. Patrolman Timothy Garron (Officer Garron), of the City of Chester
Police Department, conducted a criminal investigation, which included three
controlled narcotics buys by a confidential informant (CI), and applied for an
anticipatory search warrant on December 4, 2014, of Appellant’s residence
located at 909 West 7th Street, Chester, Pennsylvania, and his vehicle bearing
a Pennsylvania license plate with the following identification, “JST-8648.”
Application for Search Warrant and Authorization (Search Warrant), 12/4/14,
at 2, 4-5, 8.2 A magisterial district judge issued the search warrant on
December 4, 2014. Officer Garron executed the search warrant on December
5, 2014. After police officers entered the home, they found Appellant in the
front bedroom on the second floor. N.T., 8/11/15, at 33. They placed him in
handcuffs and gave him Miranda3 warnings before they conducted a search
of the home. Id. at 33-34. Police seized a pillowcase, which included (1) a
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2 Officer Garron averred that at the time of the application, he had been a full-
time police officer with the Chester Police Department for over six years.
Search Warrant at 2. He stated that for the past 21 months, he was assigned
to the Narcotics, Vice and Intelligence Unit, and that for the past 20 months,
he was a sworn member of the Criminal Investigation Division, Drug Task
Force for the Office of the District Attorney of Delaware County. See id.
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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clear plastic bag with five knotted plastic bags, containing 51.17 grams of
cocaine; (2) another plastic bag containing 43 heat sealed orange plastic zip
lock bags contained 10.19 grams of cocaine; (3) two blue plastic bags
containing 1.02 grams of cocaine; and (4) one knotted clear plastic bag
containing nine blue plastic zip lock bags which contained five grams of
cocaine. See N.T., 11/30/16, at 64-66.4
Police Officer Mark Barag of the City of Chester Police Department
assisted in the execution of the search warrant, and interviewed Appellant at
police headquarters. Officer Barag provided Appellant with Miranda warnings
prior to questioning him, and gave him a waiver form. N.T., 8/11/15, at 53,
56. Appellant reviewed the form and signed it. Id. at 53-59. As evidenced
by the form, Appellant admitted that narcotics in the pillowcase were his, that
he purchased the drugs in North Philadelphia, that it was his intention to sell
the drugs and “get high,” and that he took full responsibility for all recovered
narcotics and drug paraphernalia. N.T., 11/30/16, at 216-18. Appellant also
indicated that he was not coerced or forced to say anything during the
interview. Id. at 218. Thereafter, Appellant was arrested and charged with
numerous violations of the Controlled Substances Act, including PWID.
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4Based on the packaging and weight of the cocaine seized, this amounted to
between $6,000.00 to $7,000.00. See N.T., 11/30/16, at 239-40.
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On May 20, 2015, Appellant filed an omnibus pretrial motion, seeking
suppression of any statements or physical evidence recovered as a result of
the search warrant on the basis that the officers lacked probable cause, insofar
as there were purported defects in the warrant.5 The court held a hearing on
August 11, 2015, regarding the matter. On March 16, 2016, Appellant filed
an amended omnibus pretrial motion, which concerned a motion for disclosure
of information regarding the confidential informant. The court held another
hearing on April 12, 2016. On June 3, 2016, the court denied both motions.
The matter proceeded to a jury trial, which began on November 29,
2016. On December 1, 2016, the jury convicted Appellant of PWID and
possession of drug paraphernalia. On January 23, 2017, the court sentenced
Appellant a term of 40 to 140 months’ incarceration for the PWID conviction,
followed by five years of probation, and a concurrent term of six months to 12
months’ incarceration for the possession of drug paraphernalia offense.
Appellant filed a pro se notice of appeal on February 27, 2017.
On April 8, 2019, this Court remanded the matter for the trial court to
hold an evidentiary hearing to determine whether Appellant timely delivered
his pro se notice of appeal to prison authorities. See Commonwealth v.
Johnson, 779 EDA 2017 (Pa. Super. Apr. 8, 2019) (unpub. memo.). On May
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5The May 2015 motion was not included in the certified record. The contents
of the motion were taken from defense counsel’s statements at the
suppression hearing. See N.T., 8/11/15, at 3-4.
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23, 2019, the court held a hearing, but the matter was continued until July
22, 2019, “for Appellant to bring a properly executed cash slip or other
reasonably verifiable evidence of the date he deposited his pro se filing of his
notice of appeal with the prison authorities.” Trial Ct. Op., 12/16/21, at 3. At
the time of the July 22nd hearing, Appellant did not produce proof of the
deposit. On September 10, 2019, this Court quashed Appellant’s appeal. See
Commonwealth v. Johnson, 779 EDA 2017 (Pa. Super. Sep. 10, 2019)
(unpub. memo.).
On April 8, 2020, Appellant filed a pro se petition for post-conviction
relief pursuant to the Post-Conviction Relief Act (PCRA).6 Counsel was
appointed, who then filed an amended PCRA petition on May 28, 2020. On
August 17, 2021, the trial court entered an order that included a stipulation
by both parties averring that “trial counsel provided ineffective assistance
when he failed to file a timely notice of appeal when timely requested to do
so by petitioner, and, as a result, [Appellant]’s direct appeal to the
Pennsylvania Superior Court was quashed.” Order of the Court, 8/17/21, at
1 (unpaginated). The court stated that “[t]rial counsel had no reasonable
basis for failing to file the requested notice of appeal and [Appellant] was
prejudiced as a result. . . .” Id. Therefore, the court ordered that his direct
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6 42 Pa.C.S. §§ 9541-9546.
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appeal rights be reinstated nunc pro tunc. Id. Thereafter, new counsel was
appointed, who filed a notice of appeal.
Appellant raises the following issues on appeal:
1. Whether the Honorable Trial Court erred as a matter of law and
abused its discretion, and denied [Appellant] rights guaranteed by
the Fourth, Fifth, Sixth and Fourteenth Amendments to the United
States Constitution and Article 1 Section 8 of the Pennsylvania
Constitution, in denying [Appellant]’s pre-trial motion to suppress
the fruits of the search of his home and the resulting incriminating
statement, as the warrant issued for the residence fails to set out
probable cause to believe that contraband would be found within
the residence and the subsequent incriminating statement of
[Appellant] was the product of the unlawful search?
2. Whether the Honorable Trial Court erred as a matter of law and
abused its discretion, and denied [Appellant] rights guaranteed by
the Fourth, Fifth, Sixth and Fourteenth Amendments to the United
States Constitution and Article 1 Section 8 of the Pennsylvania
Constitution, in denying [Appellant]’s pre-trial motion for
disclosure of the confidential informant who provided information
included in the Affidavit of Probable Cause accompanying the
search warrant, where the pre-trial request for disclosure of the
informant was material to his defense, was reasonable and in the
interest of justice, and where the Commonwealth failed to
establish that the safety of the informant would be compromised
by disclosure?
Appellant’s Brief at 4-5.
Appellant first complains that the trial court erred and abused its
discretion by denying his motion to suppress because “the search warrant
resulting in the seizure of illegal drugs, Appellant[’]s arrest and subsequent
confession was not based on probable cause.” See Appellant’s Brief at 19.
He asserts the warrant was not based on probable cause due to the CI’s
lack of reliability, stating:
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According to the affidavit, Officer Garron received information
from the informant that a male known as “L” was selling drugs
from the residence at 909 W. 7th Street in Chester. After
performing some internet-based searches, [Officer] Garron
connected Appellant . . . with the residence. The information
supplied by the informant, as corroborated by [Officer] Garron, so
far fails to provide probable cause, as corroboration of readily
obtainable facts does not provide probable cause. . . . The
informant is not shown to be reliable simply because police
verified Appellant’s address as given by the informant. In
addition, although the Affidavit states that the informant provided
information that led to three arrests, information leading to
arrests only does not establish reliability because there is no
showing that the information previously provided, was proven to
be true. The affidavit fails to include any other facts relating to
the case or cases in which the informant provided information; for
instance, the affidavit does not indicate the name of the persons
arrested, the type of information provided by the informant or
whether the case or cases got past the preliminary hearing; the
affidavit does not specify the type of information given in the
previous cases or whether the informant participated in the
criminal activity. . . .
Appellant’s Brief at 21-22 (citations omitted). Furthermore, he argues: “Nor
does the fact that the informant told police he observed cocaine in the
residence . . . amount to a declaration against penal interest[.]” Id. at 23
(citation omitted). Appellant also claims:
[T]he Affidavit does not establish a basis for the informant to state
that “L” is selling drugs from the residence, nor is there a time
frame as to when the informant saw the drugs inside the house or
as to when the person known as “L” was actually selling illegal
drugs from the house[.] The Affidavit states that the informant
made states against his penal interest[, but t]he actual
statements, or even the general nature of the statements, do not
appear in the affidavit. The affidavit does not indicate whether
those statements were made with reference to this case and
cannot be said to have been incriminating for the informant. One
cannot ascertain from the face of the affidavit, whether the
statements were made to curry favor from law enforcement, to
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minimize culpability, to retaliate against another or given for any
other such self-serving reason.
Id. at 23-24 (citation omitted). Appellant maintains that the determination
“that the drugs were purchased from within the residence, therefore, is based
entirely, not on police observation of the informant’s activities, but, instead
on acceptance of the informant’s credibility.” Id. at 25.
Appellant also suggests that since his arrest was purportedly unlawful,
his statements to police should be suppressed as well. See Appellant’s Brief
at 25. He states that the “Pennsylvania Supreme Court historically has not
found a confession coming after an illegal arrest to have been freed from the
taint of the illegal arrest simply because the incriminating statement was
preceded by Miranda warnings[.]” Id. at 28 (citations omitted). Appellant
concludes, “Because [he] was arrested without probable cause, and as a result
of [his] confession having not been purged of the illegal arrest, the statements
made by [him] to police should have been suppressed.” Id.
When reviewing suppression decisions, our standard of review is limited.
We review trial court suppression orders to determine whether the
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. We are bound by
the suppression court’s factual findings so long as they are
supported by the record. In reviewing an appeal by the
Commonwealth of a suppression order, we may consider only the
evidence from the [defendant’s] witnesses along with the
Commonwealth’s evidence which remains uncontroverted. Our
scope of review of suppression court factual findings is limited to
the suppression hearing record. We, however, are not bound by
a suppression court’s conclusions of law; rather, when reviewing
questions of law, our standard of review is de novo and our scope
of review is plenary.
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Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021) (citations & quotations
marks omitted). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.
Super. 2006) (citation omitted).
As Appellant’s argument pertains to the validity of the search warrant,
we are guided by the following:
The Fourth Amendment to the United States Constitution
commands that “[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the
persons or things to be seized.” U.S. CONST. amend IV.
Similarly, Article I, Section 8 of the Pennsylvania Constitution
provides that “[t]he people shall be secure in their persons,
houses, papers and possessions from unreasonable searches and
seizures, and no warrant to search any place or to seize any
person or things shall issue without describing them as nearly as
may be, nor without probable cause, supported by oath or
affirmation subscribed to by the affiant.” PA. CONST. art. I, § 8.
A search warrant may issue only upon a demonstration of
probable cause by an affiant. See generally Commonwealth v.
Gary, 91 A.3d 102, 107 (Pa. 2014). The existence of probable
cause is measured by examining the totality of the circumstances.
Illinois v. Gates, 462 U.S. 213, 238 (1983). “Probable cause
exists where the facts and circumstances within the affiant’s
knowledge and of which he [or she] has reasonably trustworthy
information are sufficient in and of themselves to warrant a
[person] of reasonable caution in the belief that a search should
be conducted.” Commonwealth v. Johnson, 42 A.3d 1017,
1031 (Pa. 2012) (internal quotation marks and citation omitted).
A magisterial district judge, when deciding whether to issue a
search warrant, must “make a practical, common-sense decision
whether, given all of the circumstances set forth in the affidavit .
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. . including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Id. (citation omitted). Conversely, “[a] court reviewing a
search warrant determines only if a substantial basis existed for
the magistrate to find probable cause.” Id. (citation omitted). We
also note that there is a strict particularity requirement in Article
I, Section 8 of the Pennsylvania Constitution that “a warrant must
describe the items as specifically as is reasonably possible.”
Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989);
see also Pa.R.Crim.P. 205(2) (requiring all search warrants to
“identify specifically the property to be seized”); id. at 205(3)
(requiring all search warrants to “name or describe with
particularity the person or place to be searched”).
Commonwealth v. Jacoby, 170 A.3d 1065, 1081-82 (Pa. 2017).
Moreover, “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, 28 A.3d 1284, 1288 (Pa. 2011). “[A]n 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.” Id. (emphasis in original). “[U]nder the totality-of-the-
circumstances approach, there is no talismanic recitation of a particular phrase
with respect to ‘reliability’ or ‘basis of knowledge’ that will either be required
or will suffice to conclusively establish, or conclusively disaffirm, the existence
of probable cause.” Id. at 1292. See also Commonwealth v. Luv, 735
A.2d 87 (Pa. 1999).
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As noted above, Officer Garron was the affiant for the search warrant
and affidavit of probable cause at issue. The affidavit of probable cause
stated, in relevant part:
During the month of October [Officer Garron] spoke with a
reliable [CI] regarding narcotics sales from an individual only
known to [CI] as “L”. During this conversation [CI] stated that
he/she knows “L” resides at 909 West 7th Street, Chester,
Delaware County, Pennsylvania 19013 and sells large quantities
of cocaine from his residence. [CI] went on to describe “L” as a
black male, approximately 5’4” to 5’7” with a medium build, dark
complexion, with a beard and black low cropped hair who is
approximately 40 years old. [CI] has observed “L” numerous
times inside of 909 West 7th Street . . . with large amounts of
cocaine as well as large sums of [United States] currency. [CI]
further stated that he/she is aware that “L” has been arrested in
the past for previous narcotics convictions.
[CI] advised [Officer Garron] that he/she wishes to remain
anonymous for fear of bodily harm/death and/or retaliation
against their property should their identity become known.
[Officer Garron] also wishes [CI]’s identity to remain anonymous
out of concern for [CI]’s safety, and also, should his/her identity
become known he/she could no longer provide law enforcement
with information regarding illegal drug activity in and around
Delaware County. [Officer Garron] has corroborated this
information through independent police investigation and through
other sources of information (Ex.: investigation/reports/records
checks). [CI] has provided law enforcement with information
regarding other narcotics investigations, where during or after
their completion different quantities of narcotics/firearms have
been seized and at least three individuals have been arrested as
a result. [CI] has also made numerous statements against his/her
penal interest including the fact that [CI] is/was a user/dealer of
controlled substances. In conversation with [CI, Officer Garron]
knows [CI] to have a thorough familiarity with the ways in which
controlled substances, specifically cocaine, is used, sold and
distributed, and the corresponding prices at which the various
doses are sold. [Officer Garron] through training and experience
know[s] this information imparted by [CI] to be accurate.
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During the month of October [Officer Garron] conducted
multiple searches on the address of 909 West 7th Street . . . and
was able to locate the name Lamont Johnson . . . as a resident [at
that address]. With this information in hand, [Officer Garron]
conducted numerous searches on the name Lamont Johnson using
JNET,[7] court records and the National Crime Information Center
(NCIC). Records, including photos for Lamont Johnson were
found, printed and presented to [CI]. [CI] stated that the photo
obtained utilizing JNET by your affiant was that of “L” who he/she
knows has been selling cocaine from the residence located at 909
West 7th Street[.] Further research on [Appellant] . . . revealed
that he has five prior convictions for violations of Title 35 for
manufacturing, delivery, or possession with intent to deliver a
controlled substance.
* * *
During the month of October [Officer Garron] conducted
numerous periods of hidden surveillance during various times of
the day and nighttime hours on the address of 909 West 7th
Street[.]. During the course of these various surveillance periods
[Appellant] aka “L” was observed coming and going from the front
and rear door of 909 West 7th Street[.]Furthermore, [Officer
Garron] observed heavy foot and vehicular traffic, often using the
rear entrance to [the property]. Through training and experience
[Officer Garron] knows this activity to be consistent with narcotics
trafficking.
During the month of November [Officer Garron] met with
[CI] for the purpose of conducting a controlled purchase of cocaine
from [Appellant] from within the residence located at 909 West
7th Street[.] [CI] was searched and found to be free of any
controlled substances and/or United States currency. [Officer
Garron] gave [CI] a quantity of United States currency with which
to make the controlled purchase. [Officer Garron] and [CI]
together went to the vicinity of 909 West 7th Street[.] [CI] left
[Officer Garron] and went directly inside the rear door of 909 West
7th Street . . . , by way of a carport/garage making no stops in
between and meeting with no other individuals. After
approximately ten minutes [CI] exited the rear door of 909 West
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7 JNET standards for Pennsylvania Justice Network.
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7th Street, . . . and returned directly to [Officer Garron]. Involved
members of law enforcement had constant observation of [CI]
prior to entering the residence as well as after the completion of
the controlled buy. At no time did [CI] stop and or exchange
anything with any person on the street while [e]n route to or from
the residence located at 909 West 7th Street[.] Upon returning
to [Officer Garron], [CI] turned over a quantity of cocaine
consistent with the currency provided, while confirming that the
subject [CI] purchased the illegal narcotics from was [Appellant]
from within the residence located at 909 West 7th Street[.] [CI]
was again searched and found to be free of money and/or a
controlled substance. The cocaine purchased during the
controlled buy was returned to Chester Police Headquarters where
a field test was conducted and a positive reaction was received at
which time the cocaine was placed into evidence. Again this
controlled purchase and observation by law enforcement was
during the second week of November.
During the month of November [Officer Garron] met with
[CI] for the purpose of conducting a controlled purchase of cocaine
from [Appellant.] [CI] was searched and found to be free of any
controlled substances and/or United States currency at which time
[Officer Garron] gave [CI] a quantity of United States currency
with which to make the controlled purchase. [Officer Garron] had
[CI] place a phone call to [Appellant] in order to set up the
controlled buy; during this conversation, [Appellant] indicated
that he would bring the controlled substance to [CI] at a
predetermined location. At this time, [CI] left [Officer Garron]
and went directly to the predetermined location making no stops
in between and meeting with no other individuals. After
approximately [20] minutes, involved members of law
enforcement observed [Appellant] exit the front door of 909 West
7th Street . . . and proceed to enter a tan/beige Buick Park Avenue
parked directly in front of the property[.] At this time involved
members of law enforcement followed [Appellant] in the tan/beige
Buick bearing Pennsylvania registration (JST-8648) directly to the
predetermined meet location while observing that [Appellant]
made no other stops in between; avoiding any meetings or
transactions with any other individuals on his way to the
predetermined meet location. Upon meeting with [CI, Officer
Garron] observed a quick exchange/transaction between [CI] and
[Appellant]. After the transaction, [Appellant] left the
predetermined meet location while [CI] returned directly to
[Officer Garron]. Involved members of law enforcement had
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constant observation of [CI] prior to, during the deal and after the
completion of the controlled buy. At no time did [CI] stop and[/]or
exchange anything with any other person on the street while [e]n
route to or from the predetermined meet location. Upon returning
to [Officer Garron], [CI] turned over a quantity of cocaine
consistent with the currency provided, while confirming that the
subject [CI] purchased the illegal narcotics from was [Appellant]
from within the tan/beige Buick bearing Pennsylvania registration
(JST-8648). [CI] was again searched and found to free of any
money and/or controlled substances. The cocaine purchased
during the controlled buy was returned to Chester Police
Headquarters where a field test was conducted and a positive
reaction was received at which time the cocaine was placed into
evidence. Again this controlled purchase and observation by law
enforcement was during the second week of November.
During the month of December with 48 hours of application
for search warrant, [Officer Garron] met with [CI] for the purpose
of conducting a controlled purchase of cocaine from [Appellant]
from within the residence located at 909 West 7th Street[.] CI]
was searched and found to be free of any controlled substances
and/or United States Currency. [Officer Garron] gave [CI] a
quantity of United States currency with which to make the
controlled purchase and had [CI] place a phone call to [Appellant].
After placing the phone call setting up the controlled buy [Officer
Garron] and [CI] together went to the vicinity of 909 West 7th
Street[.] [CI] left [Officer Garron] and went directly inside the
rear door of [the property], by way of the carport/garage, making
no stops in between and meeting with no other individuals. After
approximately five minutes [CI] exited the rear door of 909 West
7th Street . . . and returned directly to [Officer Garron]. Involved
members of law enforcement had constant observation of [CI]
prior to entering the residence as well as after the completion of
the controlled buy. At no time did [CI] stop and[/]or exchange
anything with any person on the street while [e]n route to or from
the residence located at 909 West 7th Street[.] Upon returning
to [Officer Garron], [CI] turned over a quantity of cocaine
consistent with the currency provided, while confirming that the
subject [CI] purchased the illegal narcotics from was [Appellant]
from within the residence located at 909 West 7th Street[.] [CI]
was again searched and found to be free of money and/or any
controlled substances. The cocaine purchased during the
controlled buy was returned to Chester Police Headquarters where
a field test was conducted and a positive reaction was received at
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which time the cocaine was placed into evidence. Again this
controlled purchase and observation by law enforcement was
during the month of December within 48 hours of [the] application
for [the] search warrant.
Based upon [Officer Garron]’s training and experience as
well as the facts set forth above, [the officer] knows that persons
distributing quantities of controlled substances, such as cocaine
commonly engage in the same process at a residence that is
within control of the trafficker and hence, the trafficker is secure
in minimizing detection by police. Further, [Officer Garron] knows
that it is common for traffickers like [Appellant] to store their
supply or portions of their supply of cocaine, along with other
controlled substances, records of sales, monies/assets and other
related items at their residence since the residence proves some
measure of security not only from police detection, but from rip-
offs by other dealers and/or users of the controlled substance.
Furthermore, [Officer Garron] knows based upon [his] experience
that traffickers such as [Appellant] often have weapons within
their control in order to protect themselves and their stash,
including cocaine, from rip offs from other drug traffickers and
from “stick up boys” - people who make a living by robbing drug
traffickers.
Search Warrant at 2-6.
In finding there was probable cause to support the search warrant, the
trial court relied on the following: (1) Officer Garron was a trained investigator
for controlled substances and their uses, distribution, and effects on the
human body, and was qualified as “Drug Expert” in court proceedings; (2)
Officer Garron had been involved in numerous drug-related arrests as well as
the execution of search and arrest warrants for controlled substances
violations; (3) related to this case, he was in contact with the CI concerning
sales of controlled substances by Appellant and indicated the CI told him the
buys were made from Appellant; (4) the CI had provided law enforcement
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with information concerning prior narcotics investigations and the information
proved very reliable as it resulted in at least three arrest and the seizure of
drugs and firearms; (5) Officer Garron corroborated the information regarding
Appellant through an independent police investigation, verifying that Appellant
had five prior convictions for PWID; and (6) Officer Garron conducted
numerous periods of hidden surveillance of Appellant, noting that he drove a
tan/beige Buick. See Trial Ct. Op. at 7-9. The court further stated:
For all of these reasons, th[e c]ourt following the
suppression hearing and review of the information contained in
the search warrant affidavit and according deference to the issuing
authority’s probable cause determination in a common-sense,
nontechnical manner concluded the affiant is a person of
reasonable caution and the facts and circumstances within his
knowledge were sufficient to warrant him to believe an offense
had been committed and was continuing. Th[e c]ourt determined
the issuing authority had a substantial basis for concluding
probable cause existed within the four corners of the affidavit for
the search warrant application and the issuing authority made the
practical and common-sense decision given all the circumstances
set forth in the affidavit supporting the search warrant application
including the veracity and basis of knowledge of persons supplying
hearsay information there was a fair probability contraband or
evidence of a crime would be found in [Appellant]’s residence
located at 909 West 7th Street . . . .
Id. at 10.8
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8 The court also noted that was a misstatement that arose in the affidavit —
Officer Garron alleged that in November 2014, Appellant drove a tan/beige
Buick bearing Pennsylvania license plate, JST-8648. Trial Ct. Op. at 9. At the
suppression hearing, Appellant called Yamin Ilyaas, an automobile tag agent,
to testify that he issued a tag with the number “JST-8648” on December 1,
2014. See N.T., 8/11/15, at 6-9. Appellant argued this information was a
material misstatement of fact.
(Footnote Continued Next Page)
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Our review of the certified record leads us to agree with the trial court
that the affidavit, as a whole, provided the magistrate district judge with
sufficient information to conclude there was a reasonable probability evidence
of criminal activity ─ drug use ─ would be found at Appellant’s home and in
his car. First, we note that Appellant’s argument amounts to a request for
this Court to take a “hypertechnical” approach regarding the language of the
search warrant, including the affidavit of probable cause, based on a purported
lack of specificity regarding the reliability of the CI. For example, as stated
above, Appellant contends that while the CI provided information that led to
three arrests, such information “does not establish reliability because there is
no showing that the information . . . was proven to be true” and the “affidavit
fails to include any other facts relating to the case or cases in which the
____________________________________________
In response, Officer Garron testified that he looked up for the tag for
the vehicle after December 2, 2014, but before December 4, 2014, the date
he drafted the search warrant. N.T., 8/11/15, at 29. He stated he “was
attempting to . . . tidy up the search warrant, at which time [he] got the tag
for the Buick so [he] could enter it into the search warrant.” Id. at 28-29.
Officer Garron testified that prior to that date, he had not taken notice of the
actual license plate on Appellant’s car. Id. at 29. The officer further stated
that it was his experience that “sometimes drug traffickers keep their stash in
a car if their house” is searched and they “take steps to avoid police detection
by using cars that are not registered to them.” Id. at 30. The trial court
found Officer Garron to be “credible” and “accepted the explanation proffered
by him concerning this impossibility and misstatement of fact.” Trial Ct. Op.
at 9-10.
Appellant did not renew this argument in his appellate brief; therefore,
we need not address it further.
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informant provided information[, including] the name of the persons arrested,
the type of information provided by the informant or whether the case or cases
got past the preliminary hearing[.]” Appellant’s Brief at 22. Further, he
suggests that affidavit did not contain enough particularity as to the
statements made by the CI that were against their penal interest. Id. at 23.
He argues this is problematic because the actual statements did not appear in
the affidavit, and there was no indication whether those statements were
made with reference to this case. Id.
We decline to adopt Appellant’s “hypertechnical approach.” We reiterate
that the issuance of a search warrant is based on a “practical, common-sense
decision whether, given all of the circumstances set forth in the affidavit . . .
including the veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence of a crime
will be found in a particular place.” Jacoby, 170 A.3d at 1082 (citation
omitted). Here, as the evidentiary support was summarized by the trial court,
the issuing judge authorized the search warrant based on (1) substantial
information from the CI, and (2) corroborating research conducted by Officer
Garron, including three controlled buys that took place either in Appellant’s
home or his car. It is evident from a “practical” and “common sense” reading
of these facts there there was a fair probability that contraband or
incriminating evidence would be found at those locations. See id.; see also
Clark, 28 A.3d at 1288.
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We note that Appellant relies on Commonwealth v. Manuel, 194 A.3d
1076 (Pa. Super. 2018) (en banc), for the notion that the CI’s reliability was
not sufficiently established. We find that case is distinguishable from the
present matter. In Manuel,
the sole indicia of the CI’s reliability presented in the affidavit of
probable cause was that he had provided information leading to a
single felony drug arrest. The affidavit [did] not identify the name
of the defendant or docket number in that case, indicate the type
of information provided by the CI that led to the arrest, or state
whether the defendant was even held over for trial. Moreover,
there [was] no indication that the CI himself participated in the
criminal activity of which he informed the police, thus exposing
himself to legal jeopardy and lending credence to his information.
In short, the only evidence available to evaluate the reliability of
[that] CI [was] the fact that he once provided police with some
unspecified information that, either alone or in conjunction with
other unidentified evidence, led to a finding of probable cause to
arrest someone on felony drug charges.
Manuel, 194 A.3d at 1084 (citation omitted).
In reversing the trial court’s denial of the co-defendants’ motion to
suppress, this Court recognized that there was “no ‘magic number’ of arrests
or convictions for which a CI need previously have provided information to be
deemed reliable[,]” and stated “the fact that the CI had previously provided
information leading only to one unadjudicated arrest does not automatically
render the affidavit lacking in probable cause.” Manuel, 194 A.3d at 1084-
85. Nevertheless, the Court found “the lack of any meaningful follow-up
investigation by the police to secure true corroboration of such inside
information [led them] to conclude that, under the totality of the
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circumstances, the affidavit did not establish probable cause.” Id. at 1085.
The Court further noted:
Police neither arranged for the CI to conduct a controlled buy at
the premises nor performed any type of photographic or electronic
surveillance. Nor did they conduct a trash pull. Rather, [the
officer] merely ran searches through PennDOT that established
that [the one co-defendant] resided at the Pleasant Grove
Residence and that [the other co-defendant] registered a car at
that address. This generally available information was not
corroborative of the CI’s information.
Id.(footnote omitted). .
Turing to the present matter, we find that Manuel is distinguishable
from the facts presented herein, and therefore, not controlling. Unlike the
officers in Manuel, Officer Garron did follow up with meaningful investigation
to secure a verified corroboration of the CI’s information — he conducted
surveillance as well as three controlled buys using the CI.
Lastly, Appellant argues that because he was arrested without probable
cause, his confession should be purged because of the illegal arrest, and
therefore, his statements to police should be suppressed. See Appellant’s
Brief at 25. We conclude that this claim is unavailing based on our above-
stated analysis. Contrary to Appellant’s argument, we agree with the trial
court that there was probable cause to support the warrant.9 Accordingly,
Appellant’s first claim has no merit.
____________________________________________
9We note Appellant does not allege that his confession was involuntary or
unknowing, which would call for a separate analysis.
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In his remaining argument, Appellant alleges the trial court erred and
abused its discretion by denying his pre-trial request for disclosure of the
identity of the CI. See Appellant’s Brief at 28-29. He argues that he “had
every reason to place Officer Garron’s credibility at issue with the jury” and
the CI “would have been able to provide information that would have either
contradicted or corroborated [the officer]’s trial testimony[.]” Id. at 34.10
Appellant states that “much of the action undertaken, and not undertaken by
the officer, was premised on information provided by” the CI. Id. at 34-35.
He asserts, “As the information in the hands of the informant would bear
directly on Officer Garron’s trial testimony, it was relevant and not collateral.
The identity of the informant was therefore material to the defense.” Id. at
35. Appellant also complains that “the Commonwealth did not present any
evidence that disclosure of the identity of the [CI] would jeopardize the
informant’s safety.” Id.
“Our standard of review of claims that a trial court erred in its disposition
of a request for disclosure of an informant’s identity is confined to abuse of
____________________________________________
10 For example, he states that the officer never retained the photograph of
Appellant he showed to the CI. See Appellant’s Brief at 32. The CI described
the person selling drugs “as a black male, 5’5” to 5’7”, approximate age
around 40 [years old].” Id. (citation omitted). Appellant points out that there
was a second black male found in the basement of the house, who was
“described as 53 years old, medium build, dark complexion.” Id. Appellant
suggests no further investigation was done by Officer Garron to see if this
individual was the person the CI had identified. Id. at 33.
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discretion.” Commonwealth v. Jordan, 125 A.3d 55, 62 (Pa. Super. 2015)
(en banc) (citation omitted).
Under Pennsylvania Rule of Criminal Procedure 573, a trial court
has the discretion to require the Commonwealth to reveal the
names and addresses of all eyewitnesses, including confidential
informants, where a defendant makes a showing of material need
and reasonableness:
(a) In all court cases, except as otherwise provided in Rule
230 (Disclosure of Testimony Before Investigating Grand
Jury), if the defendant files a motion for pretrial discovery,
the court may order the Commonwealth to allow the
defendant's attorney to inspect and copy or photograph any
of the following requested items, upon a showing that they
are material to the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of eyewitnesses[.]
Pa.R.Crim.P. 573(B)(2)(a)(i).
Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010).
The Commonwealth has a qualified privilege not to disclose the
identity of a CI. Thus, where a defendant seeks a CI’s identity,
the defendant must first show that [the] request for disclosure is
reasonable and that the information sought to be obtained
through disclosure is material to the defense. Thus, although the
defendant need not predict absolutely what the CI would say, the
defendant must demonstrate at least a reasonable possibility the
informant’s testimony would exonerate him.
It is only after the defendant carries this initial burden does
the trial court then exercise its discretion and determine whether
the information is to be revealed. A defendant fails to carry the
initial burden to show that the CI’s identity would be material to a
defense of mistaken identity where the record contains no
evidentiary basis on which the defendant could assert the defense.
Commonwealth v. Bright, 234 A.3d 744, 747 (Pa. Super. 2020) (citations
& quotation marks omitted).
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In addressing this issue, the trial court found the following:
Th[e c]ourt on June 3, 2016[,] properly denied Appellant’s motion
filed as part of his March 16, 2016[,] Amended Omnibus Pretrial
Motion. In the motion, Appellant claimed he is entitled to have
the confidential informant’s identity revealed. Appellant
contended a significant portion of the affidavit used to support the
search warrant involved alleged controlled buys by the
confidential informant, the controlled buys were not witnessed by
any law enforcement officer and the identity of the confidential
informant is essential in order to establish the veracity of the
information used to support the affidavit of probable cause.
Accordingly on April 12, 2016[, the trial c]ourt held a
hearing on Appellant’s motion for disclosure for Appellant to
present evidence on the issue of whether a misrepresentation was
knowingly and falsely made in the probable cause affidavit and
whether it was material to the establishment of probable cause.
At the hearing on the motion, no testimony was presented;
Appellant reiterated the allegations set forth in his motion. Th[e
c]ourt was not persuaded Appellant demonstrated through his
motion, exhibits, and argument any right to disclosure of the
identity of the confidential informant, and concluded Appellant
failed to meet his burden to show the existence of willful and
material misstatements or falseness in the search warrant
affidavit.3 Additionally, th[e c]ourt found, based on the totality of
the circumstances set forth in the affidavit, the confidential
informant was reliable. Th[e c]ourt also concluded, based on the
information set forth in the affidavit, the safety of the informant
would have been compromised by disclosure of the informant's
identity.
_____________________
3The only potential misstatement in the affidavit of probable
cause for the search warrant raised by Appellant concerned
the number of the license plate for the Buick and [the trial]
court was satisfied by Officer Garron’s explanation and
concluded this was not a material misstatement of fact.
_____________________
In view of all this, recognizing the Commonwealth enjoys a
privilege to withhold the identity of the confidential informant, and
having determined Appellant did not show any material
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misstatements of fact, or disclosure of the informant’s identity was
material to the preparation of his defense or was reasonable in
the interests of justice, th[e c]ourt was not required to conduct a
balancing test concerning disclosure of the identity of the
confidential informant and properly denied Appellant’s motion.
Assum[ing] arguendo th[e] court was required to conduct
the balancing test, upon consideration of all the facts and
circumstances of record in this case, the scales do not tip in favor
of disclosure of the identity of the confidential informant. Th[e
c]ourt’s denial of Appellant’s motion was proper, and the decision
was not an error nor manifestly unreasonable.
Trial Ct. Op. at 14-16.
We discern no abuse of discretion in the trial court’s analysis or
conclusion. Appellant failed to meet his burden of establishing that there was
a knowing and false misrepresentation in the affidavit of probable cause, and
it was material to establishment of that standard of proof. Moreover, to
extent Appellant attempts to argue that Officer Garron’s testimony could have
been attacked by the information provided by the CI, we point out that the
Commonwealth’s case was predicated upon the narcotics and paraphernalia
seized from Appellant’s property, which Appellant admitted to possessing in
his statement to police. Therefore, Appellant “failed to satisfy the threshold
test necessary to overcome the Commonwealth’s qualified privilege.” See id.
at 143. Accordingly, we conclude the trial court did not abuse its discretion in
denying Appellant’s request to disclose the CI’s identity, and his second claim
fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/2023
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