Com. v. Howard, T.

J-A25007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY SHAWN HOWARD :
:
Appellant : No. 54 WDA 2023

Appeal from the Judgment of Sentence Entered May 2, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0001280-2020

BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 12, 2024

Troy Shawn Howard appeals from the judgment of sentence of five to

ten years of incarceration following his convictions for, inter alia, tampering

with physical evidence and possession with intent to deliver a controlled

substance (“PWID”). We affirm.

In the early morning of March 5, 2020, law enforcement personnel

executed a search warrant at 1013 Kenneth Avenue, Apartment B, New

Kensington, where, pursuant to a tip from a confidential informant (“CI”) and

their own surveillance, they knew that Appellant had previously dealt drugs.

The search was conducted pursuant to the following pertinent provisions of

the Affidavit of Probable Cause:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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5. The CI advised that he/she is able to purchase crack cocaine
from a male they identified as “Slim” at 1013 Kenneth Avenue
Apartment B. The CI described “Slim”as a black male. The CI
said that “Slim” utilizes 1013 Kenneth Avenue Apartment B, New
Kensington, Westmoreland County, Pennsylvania, 15068. The CI
advised that “Slim” will sell the crack cocaine from 1013 Kenneth
Avenue Apartment B in the City of New Kensington.

6. The CI has been proven reliable for the Pennsylvania Office of
Attorney General and the City of New Kensington Police
Department. The information the CI provided regarding this
investigation has been corroborated through law enforcement
intelligence and physical surveillance. The CI also provided
information to law enforcement officers, which were against the
CI’s own penal interests. In addition, during this investigation,
the CI has made two successful controlled purchases of crack
cocaine from “Slim.”

....

9. The CI was driven near 1013 Kenneth Avenue Apt. B by an
undercover officer. The CI was observed walking to a small
window on the north side of the building and handing a quantity
of money through the window in exchange for a quantity of crack
cocaine. Shortly after that, the CI was observed returning to the
detail vehicle. The CI handed over a quantity of crack cocaine to
the undercover officer. The CI stated that they walked to the side
window of 1013 Kenneth Avenue Apt. B and gave “Slim” official
[Attorney General Bureau of Narcotics Investigation] funds in
exchange for crack cocaine. The crack cocaine was field tested
and showed a positive result for cocaine. The CI was kept under
constant physical surveillance by detail officers throughout the
detail.

....

12. Surveillance had been conducted on this residence in the past.
Officers observed numerous people walking to the window on the
north side of the residence and making hand to hand transactions
with the occupant inside.

Affidavit of Probable Cause, 3/2/20 (cleaned up).

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After police knocked and announced their presence, Patrol Sergeant

David Coleman saw someone open a window at the back of the residence and

discard a small box. When the box hit the ground, a bag and a pair of blue

latex gloves fell out. Detective Sergeant Samuel Long observed multiple other

small bags inside the box containing what he believed to be crack cocaine and

heroin.1 Upon entering Appellant’s residence, officers discovered Appellant

seated on a toilet in the bathroom where he had thrown the box of suspected

drugs from the window and took him into custody. Law enforcement

confirmed that no other individuals were in the residence aside from Appellant.

Thereafter, investigators searched the apartment and located large quantities

of controlled substances and drug-distribution paraphernalia, such as a digital

scale, rubber gloves, and baggies.

Appellant was charged with several crimes and subsequently filed an

omnibus pretrial motion challenging the legality of the search of his

apartment. Therein, Appellant argued that the search warrant was issued

without sufficient probable cause or indication of the CI’s reliability and that

the evidence seized should therefore be suppressed. See Omnibus Pretrial

Motion, 12/23/20, at 2-4. Following a hearing and briefing, the trial court

denied the motion, and the case proceeded to trial. A jury convicted Appellant

of the above offenses and he was sentenced as indicated above. This timely

____________________________________________

1 A later test confirmed that the bags contained fentanyl, a Schedule II
controlled substance. See Trial Court Opinion, 3/6/23, at 7; 35 P.S. § 780-
104(2)(ii)(6).

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appeal followed. The trial court ordered Appellant to file a concise statement

of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and

Appellant filed a statement. Thereafter, the trial court issued a Rule 1925(a)

opinion.

Appellant proffers the following questions for our review:

1. A search warrant issued for a residence identified as “1013
Kenneth Avenue, Apartment B, New Kensington.” The trial
court affirmed the magistrate’s finding of probable cause to
support the warrant, concluding there was sufficient indicia
of reliability surrounding the confidential informant and
sufficient facts establishing a nexus of criminal activity to
“Apartment B,” specifically. So finding, did the trial court
rely upon presumptions existing outside the four corners of
the affidavit of probable cause and, generally, err by not
granting suppression?

2. Was there sufficient evidence to convict Appellant for
tampering with evidence, where the subject evidence was
discarded in plain view of law enforcement?

3. The Commonwealth’s drug-trafficking expert opined that
“whoever possessed [the controlled substances] possessed
it with the intent to deliver it.” Did the Commonwealth
adduce sufficient evidence to prove, beyond a reasonable
doubt, that it was Appellant’s specific intent to deliver the
controlled substances rather than a third party’s intent?

Appellant’s brief at 5.

Appellant’s first claim challenges the trial court’s denial of his

suppression motion, which we consider pursuant to the following legal

principles:

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

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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. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015) (cleaned

up).

Appellant contends that the suppression court erred in upholding the

magistrate’s ruling that probable cause existed to issue a search warrant for

Appellant’s residence. See Appellant’s brief at 24. We observe that the

suitability of a “grant of a search warrant to an affiant must be judged solely

upon the information before the district justice at the time of its issuance.

Consequently, the magistrate’s decision must be based on the four corners of

the affidavit in support of the issuance of the warrant.” Commonwealth v.

Lloyd, 948 A.3d 875, 880 (Pa.Super. 2008). Our Supreme Court has further

held that:

Probable cause is determined by the totality of the circumstances.
In determining whether probable cause exists to support a search
warrant, the issuing authority is simply to make a practical,
common-sense decision whether, given all the circumstances set
forth in the affidavit there is a fair probability that contraband or
evidence of a crime will be found in a particular place. A court
reviewing the underlying probable cause determination must view
the information offered to establish probable cause in a common-

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sense, non-technical manner. Probable cause is based on a
probability, not a prima facie case of criminal activity.

Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021) (cleaned up).

The High Court has made it clear that “a reviewing court is not to

conduct a de novo review of the issuing authority’s probable cause

determination, but is simply to determine whether or not there is substantial

evidence in the record supporting the decision to issue the warrant.”

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (cleaned up). We

have noted that probable cause exists based upon an informant’s tip “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. Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (en banc) (emphases in

original).

Appellant argues that the trial court erred in denying Appellant’s motion

to suppress. See Appellant’s brief at 23. He maintains that “there was not a

sufficient nexus between 1013 Kenneth Avenue, Apartment B, and the

observed conduct supporting the warrant application.” Id. at 34. In so

claiming, he contends that the trial court considered evidence outside the

affidavit concerning the identification of the premises. Id. at 33-34.

However, the trial court found that there was a sufficient nexus, which

is supported by the certified record. The trial court stated that law

enforcement had set up multiple controlled buys with the CI, who knew the

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address where he could purchase drugs. See Opinion and Order, 10/12/21,

at 2. Moreover, police had undertaken surveillance of the residence and

observed conduct similar to when the CI bought drugs. Id. at 3. The police

also knew that the apartment window where the transactions occurred was

Appellant’s window. Id. at 3. Hence, the CI’s pronouncement that crack

cocaine could be purchased at Appellant’s address was consistent with

surveillance undertaken by officers. See id. Therefore, the trial court

concluded that Appellant’s contentions are inapt, as the affiant provided

appropriate information concerning the location of the premises, and law

enforcement also observed drug dealing at the residence in question similar

to that described by the CI and undertaken during the controlled buys. Id. at

10-11. The trial court’s findings are supported by the affidavit, which detailed

the controlled buys carried out by the CI. See Affidavit of Probable Cause,

supra at ¶ 6, 9. Furthermore, the affidavit confirmed the trial court’s findings

on the surveillance conducted by law enforcement. Id. at ¶ 9, 12. Thus, a

sufficient nexus existed for the trial court to determine that the magisterial

district judge did not erroneously issue a search warrant for 1013 Kenneth

Avenue, Apartment B. In so doing, the trial court did not consider material

outside the affidavit, as its conclusions were based on material averred by the

affiant.

Appellant further suggests that the CI in the case sub judice was not

shown to be reliable. See Appellant’s brief at 25. Specifically, Appellant

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argues that the affidavit contained no concrete information detailing the

dependability of the CI and that the affiant only made “bald assertions

concerning the reliability of the CI” and did not elaborate upon details of the

CI’s track record of providing information that led to arrests. Id.

The trial court, however, determined that the CI reliably executed

controlled buys, as police officers observed the CI hand money through a

window of the residence in question and return with crack cocaine and without

the marked funds that law enforcement gave him for the purchase. See

Opinion and Order, 10/12/21, at 2-3. Moreover, this Court has held that

detailed descriptions concerning past arrests for which the CI was responsible

are not required and, as such, Appellant’s argument is not persuasive. See

Commonwealth v. Dukeman, 917 A.2d 338, 341–42 (Pa.Super. 2007)

(stating that “the affidavit need not contain the names, dates, or other

information concerning prior arrests or convictions” (cleaned up)). Rather,

the affidavit appropriately noted that the CI previously provided law

enforcement with information that resulted in arrests. See id. (holding that

“[t]he affidavit must, however, at the very least, contain an averment stating

the customary phrase that the informant has provided information which has

in the past resulted in arrests or convictions” (cleaned up)). Instantly, the

affidavit contained a similar phrase. See Affidavit of Probable Cause, supra,

at ¶ 6.

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Based on the above, the magistrate had a substantial basis for his

decision to issue the search warrant, and the trial court did not err in upholding

that decision. See Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa.

2021) (explaining that “[i]n reviewing an issuing authority’s decision to issue

a warrant, a suppression court must affirm unless the issuing authority had

no substantial basis for its decision”). Accordingly, for the foregoing reasons,

the suppression court did not err in denying Appellant’s suppression motion.

Appellant’s second and third issues concern the sufficiency of the

evidence for his convictions for tampering with evidence and PWID,

respectively. We review a challenge to the sufficiency of the evidence under

the following guidelines:

[When] 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 the 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)

(citation omitted).

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Tampering with physical evidence is defined at § 4910 of the Crimes

Code, in pertinent part, as follows: “A person commits a misdemeanor of the

second degree if, believing that an official proceeding or investigation is

pending or about to be instituted, he: (1) alters, destroys, conceals or

removes any record, document or thing with intent to impair its verity or

availability in such proceeding or investigation[.]” 18 Pa.C.S. § 4910(1). We

have held that the Commonwealth must prove three elements to establish the

offense of tampering with evidence:

(1) the defendant knew that an official proceeding or investigation
was pending (or about to be instituted); (2) the defendant altered,
destroyed, concealed, or removed an item; and (3) the defendant
did so with the intent to impair the verity or availability of the item
to the proceeding or investigation.

Commonwealth v. Toomer, 159 A.3d 956, 961 (Pa.Super. 2017).

Appellant argues that he is entitled to relief because the Commonwealth

presented insufficient evidence to convict him of this offense since he took no

action to destroy the evidence in question. See Appellant’s brief at 36. He

contends that, instead of, e.g., disposing of the drugs down the toilet, the

sink, or the shower to destroy them, he discarded the drugs out of a window

in plain view of law enforcement. Id. Hence, Appellant avers that because

he did not attempt to destroy the evidence or impair its availability to the

police, he cannot be convicted of tampering with evidence. See Appellant’s

brief at 36.

In so suggesting, Appellant asserts that the case at bar is analogous to

Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996). There, the defendant

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fled police after making a controlled buy of narcotics and, in the process of

fleeing, discarded the drugs in plain view of pursuing police. Id. at 224. Our

Supreme Court held that Delgado did not have the necessary intent to sustain

his conviction of tampering with evidence, as he did not attempt to destroy or

conceal evidence. Id. at 225. Instead, the High Court opined that Delgado

merely abandoned the drugs in full view of law enforcement. Id.

We are, however, not convinced by Appellant’s contentions. Our

Supreme Court ruled that Delgado could not be found guilty because he

abandoned the drugs in plain view of a pursuing officer whom Delgado knew

was behind him. Id. However, in the instant case, Detective Sergeant Long

and other law enforcement personnel were not pursuing Appellant. Rather,

they were stationary in the backyard when Appellant lobbed the drugs from

the window. Moreover, there was no evidence introduced at trial indicating

Appellant’s awareness of the police presence in the backyard area where the

discarded drugs landed. The officers who announced themselves came

through the front door, and the search warrant was executed in the early

morning hours when there was little light. Thus, Appellant’s reliance upon

Delgado is inapt.

This Court addressed a similar issue to the case sub judice in

Commonwealth v. Govens, 632 A.2d 1316 (Pa.Super. 1993). There, we

affirmed Govens’s judgment of sentence for tampering with evidence when

law enforcement entered Appellant’s residence and found him discarding

drugs in the toilet. Id. at 1328-1329 (stating that “[t]he trier of fact could

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reasonably infer that appellant had become aware that his drug dealing was

under investigation when he heard the police knock at his door and announce

their presence. Appellant’s reaction . . . readily confirms his awareness of a

police investigation and his intent to impede the same.”).

Although Appellant argues that Govens is inapplicable to his case, as

he did not attempt to flush the drugs down the toilet, we are unpersuaded.

Instantly, the factfinder could infer that Appellant was aware that his illegal

activities had become known to the police when they knocked at the door and

announced their presence. Thereafter, Appellant threw the drugs from the

residence in an attempt to impair the availability of that evidence to law

enforcement. While Appellant contends that he did not impede the police

investigation or try to make unavailable the evidence, it strains credulity to

believe that Appellant discarded the drugs from the bathroom window for any

reason other than to keep that evidence from the law enforcement personnel

whom he knew were entering the residence.

Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, Appellant’s conviction is supported by sufficient evidence.

Appellant, after hearing the police knock and announce their presence, threw

a box containing drugs out of a window in an effort to prevent law enforcement

from seizing this evidence and using it in their investigation of his illicit

activities. Therefore, he is not entitled to relief.

In a similar vein, Appellant contends that the Commonwealth presented

insufficient evidence to convict him of PWID. See Appellant’s brief at 38. To

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sustain a conviction for PWID the Commonwealth must prove that Appellant

possessed the controlled substance and intended to deliver it. See 35 P.S. §

780–113(a)(30). Determining whether a person possessed drugs with an

intent to deliver is based upon the totality of circumstances. Commonwealth

v. Ratsamy, 934 A.2d 1233 (Pa. 2007). Furthermore, our Supreme Court

has opined that “possession with intent to deliver can be inferred from the

quantity of the drugs possessed and other surrounding circumstances, such

as lack of paraphernalia for consumption.” Id. at 1238 (cleaned up). “Factors

to consider in determining whether the drugs were possessed with the intent

to deliver include the particular method of packaging, the form of the drugs,

and the behavior of the Appellant.” Commonwealth v. Kirkland, 831 A.2d

607, 610 (Pa.Super. 2003).

Appellant asserts that the Commonwealth did not sufficiently prove that

he possessed the drugs with the intent to deliver them. See Appellant’s brief

at 39. Specifically, Appellant contends that the “Commonwealth never showed

his specific intent to possess the drugs and deliver them.” Id. (emphases

in original). However, we are unconvinced by Appellant’s arguments.

Concerning Appellant’s possession of the drugs, Appellant was the only

person law enforcement officials found in the residence, enabling the

factfinder to conclude that all recovered drugs belonged to him. While, at

trial, Appellant contended that the apartment was leased to another person,

there was no indicia that anyone other than Appellant resided in the

apartment. Furthermore, police discovered Appellant seated on a toilet in the

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bathroom where, moments earlier, officers stationed outside observed a box

containing drugs being flung from the window. Hence, the Commonwealth

adduced sufficient evidence to allow the jury to conclude beyond a reasonable

doubt that Appellant possessed all drugs that were seized.

Regarding Appellant’s intent to deliver, expert testimony introduced at

trial established that Appellant did not possess the drugs for his personal use.

See Ratsamy, supra at 1237 (stating that “[e]xpert opinion testimony is

admissible concerning whether the facts surrounding the possession of

controlled substances are consistent with an intent to deliver rather than with

an intent to possess it for personal use.”). Detective Anthony Marcocci, an

expert in the fields of traffic and sale of drugs, dealer practices, and drug

usage, testified that the amount of drugs recovered was too great for

Appellant’s personal use. See N.T. Trial, 2/14/22, at 210, 213. Specifically,

the detective observed that the quantities of crack cocaine and fentanyl

demonstrated that the drugs were “possessed . . . with the intent to

distribute,” as a single user “could not ingest” the amounts found at the

residence.2 Id. at 211-213. Moreover, Detective Marcocci noted that law

enforcement discovered no drug paraphernalia such as needles or syringes in

the residence, indicating that the drugs were not for Appellant’s personal
____________________________________________

2 Appellant possessed fifty-nine grams of crack cocaine, which Detective
Marcocci stated was far more than a sole individual could use. See N.T. Trial,
2/14/22, at 211. The detective also noted that Appellant had 452 baggies of
fentanyl. Coupled with the packaging of the fentanyl, Detective Marcocci
testified that the quantity that Appellant possessed demonstrated an intent to
deliver. See id. at 212-213.

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consumption. Id. at 213. Indeed, numerous items found in Appellant’s

apartment, i.e., a digital scale, baggies, and rubber gloves, suggested that

Appellant intended to individually package and sell the drugs, not to ingest

them personally. See id. at 212. For the foregoing reasons, Detective

Marcocci concluded to a reasonable degree of professional certainty that the

drugs Appellant had were not for personal use and were possessed with the

intent to deliver. See id.

Accordingly, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, the trial court did not err in upholding

Appellant’s conviction for PWID. Phrased differently, the Commonwealth’s

evidence was neither so unreliable nor so weak and inconclusive as to make

the jury verdict pure conjecture. See Commonwealth v. Gause, 164 A.3d

532, 540 (Pa.Super. 2017) (“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”).

In sum, none of Appellant’s three challenges warrant relief and, as such,

we affirm his judgment of sentence.

Judgment of sentence affirmed.

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DATE: 2/12/2024

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