J-E02004-17

2018 PA Super 166

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

DENNIS ANDREW KATONA

Appellant No. 1995 WDA 2014

Appeal from the Judgment of Sentence November 10, 2014

In the Court of Common Pleas of Westmoreland County

Criminal Division at No(s): CP-65-CR-0002549-2011

BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J., 

LAZARUS, J., OLSON, J., OTT, J., STABILE, J. AND DUBOW, J.

OPINION BY BOWES, J.: FILED JUNE 14, 2018

Dennis Andrew Katona appeals from the judgment of sentence of forty 

to eighty months incarceration, imposed following his stipulated non-jury

trial convictions for two counts of possession with intent to deliver and two 

counts of possession of a controlled substance. Appellant attacks the 

constitutionality of the search warrant, which led to the recovery of drugs, 

currency, and other items, as well as the sufficiency of the evidence. We 

affirm. 

The facts germane to Appellant’s issues largely concern the affidavit of 

probable cause for the anticipatory search warrant, which was executed at 

Appellant’s residence on June 29, 2011. That application set forth the

following. Beginning in 2009, the Pennsylvania State Police (“PSP”) utilized 

a confidential informant (“CI”) who was a member of the Pagan Motorcycle 
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Club, and who had previously provided reliable information. On April 28, 

2011, the CI informed the lead investigator, Pennsylvania State Police 

Trooper Matthew Baumgard, that Appellant, whom the CI identified as a 

member of the Pagan Motorcycle Club, unexpectedly arrived at his home and 

offered to sell him three one-half ounce packages of cocaine for $650 per 

package. The CI declined, stating that he had just purchased cocaine from 

“Tony” and was dissatisfied with the quality. The CI contacted the 

authorities to report this development. 

On May 16, 2011, the CI informed Trooper Baumgard that Appellant 

had invited him to Appellant’s home. Upon arrival, Appellant showed the CI 

one-half pounds of cocaine. Appellant said he obtained the package due to 

the CI’s dissatisfaction with Tony’s product, and offered him the entire 

package in exchange for $5,000 paid over time. The CI agreed and took the 

cocaine, which he then turned over to the authorities. 

Based on this information, the authorities applied for an order

authorizing a consensual wiretap of conversations occurring inside 

Appellant’s residence pursuant to 18 Pa.C.S. § 5704(2)(iv), with the CI 

agreeing to wear a recording device.

1

 The order was granted later that day, 

and, significant to Appellant’s challenges on appeal, authorized continuous

____________________________________________

1 The statutory text is set forth in the writing, infra. 
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interception of all in-home conversations for a period of thirty days. The 

Commonwealth also obtained an extension of the order after the thirty days 

expired. 

Thereafter, the CI made several visits to Appellant’s home and 

recorded the ensuing conversations. On May 16, 20, 25, and 31, 2011, the 

CI went to Appellant’s home and delivered cash provided by the authorities

to Appellant in installments. Officers surveilled Appellant’s home during 

each meeting, and met with the CI afterwards to discuss what occurred and 

retrieve the recordings. 

Next, on June 9, 2011, Appellant gave the CI two more ounces of 

cocaine in exchange for his agreement to deliver payment over time. 

Additionally, Appellant offered to sell the CI methamphetamine for $1,300 

per ounce. Later that evening, Appellant arrived at the CI’s doorstep and 

delivered the methamphetamine. 

On June 13, 2011, the CI paid cash to Appellant for the cocaine that 

was supplied on June 9, 2011. Additionally, on June 15, 2011, Appellant 

supplied more cocaine, which the CI then paid for on June 20, 2011.2 

Similarly, on June 22, 2011, Appellant gave the CI more cocaine at 

Appellant’s residence.

____________________________________________

2 The June 15, 2011 delivery of cocaine occurred in a Home Depot parking 

lot instead of Appellant’s residence. 
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On June 27, 2011, the CI visited Appellant’s home and paid for the 

cocaine received five days prior. During this meeting, Appellant indicated 

that he would once again have a quantity of cocaine and methamphetamine

available for pickup on June 29, 2011. On the basis of the foregoing 

information, Trooper Baumgard requested an anticipatory search warrant for 

Appellant’s home, which was to be executed upon Appellant’s contact with 

the CI on the 29th. 

On June 29, 2011, Appellant called the CI and informed him that he 

was at home. Trooper Baumgard authorized the execution of the search 

warrant, which yielded the following items from the master bedroom: a 

United American bank bag containing drugs, a briefcase containing drugs in 

a separate bank bag, a digital scale, and a black accordion file next to the 

bed containing documents and mail establishing that Appellant and his wife

lived at the home. A total of 84.2 grams of cocaine was seized in addition to

99.64 grams of methamphetamine. The parties stipulated to the recovery of 

these items following the search warrant, as well as to expert testimony 

that, based on all the circumstances, the drugs were possessed with the 

intent to deliver. Appellant was found guilty of all charges and received the 

aforementioned sentence. Appellant presents the following issues for our 

review. 

I. Whether the June 29, 2011 search warrant for Appellant's 

home was rendered invalid because it relied almost exclusively 

on an order or search warrant as described in Commonwealth 
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v. Brion, 539 Pa. 256, 652 A.2d 287 (1994) and as codified in 

18 Pa.C.S. § 5704(2)(iv) which order or warrant allowed for, 

inter alia, unlimited intercepts over a period of thirty days, as 

opposed to allowing only a single intercept? 

II. Whether the June 29, 2011 search warrant was invalid 

because it failed to meet the specific requirements of an 

anticipatory warrant?

III. Whether the Commonwealth presented sufficient evidence of 

possession to sustain the conviction against appellant?

Appellant’s brief at 3. 

We address Appellant’s third issue first, since a successful sufficiency 

of the evidence charge requires discharge. Commonwealth v. Toritto, 67 

A.3d 29 (Pa.Super. 2013). Our standard of review is well-settled. Whether 

the evidence was sufficient to sustain the charge presents a question of law. 

Our standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Walls, 144 A.3d 926 (Pa.Super. 2016). In conducting 

our inquiry, we

examine whether the evidence admitted at trial, and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, support the 

jury's finding of all the elements of the offense beyond a 

reasonable doubt. The Commonwealth may sustain its burden by 

means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

Herein, Appellant’s sufficiency challenge is limited to whether the 

Commonwealth presented sufficient facts to sustain a finding that he

possessed the drugs beyond a reasonable doubt. Appellant argues that the 
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evidence only establishes that he was present in the same residence where 

the drugs were found. It is true that mere presence cannot sustain a finding 

of possession. However, the Commonwealth is not required to show actual 

physical possession of the drugs. Constructive possession is sufficient, 

which 

is an inference arising from a set of facts that possession of the 

contraband was more likely than not. We have 

defined constructive possession as “conscious dominion.” We 

subsequently defined “conscious dominion” as 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.

Commonwealth v. Muniz, 5 A.3d 345, 348–49 (Pa.Super. 2010) (citation 

omitted); Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013) 

(“In order to prove that a defendant had constructive possession of a 

prohibited item, the Commonwealth must establish that the defendant had 

both the ability to consciously exercise control over it as well as the intent to 

exercise such control.”). The intent to exercise control over a piece of 

contraband can be proven by circumstantial evidence and all the 

circumstances in question. Muniz, supra.

Appellant argues that the Commonwealth could not establish 

possession because he was merely present and “there is no evidence 

regarding how long [Appellant] had been at the residence prior to law 

enforcement’s arrival.” Appellant’s brief at 54 (emphasis in original). We do 

not find that this fact precludes a finding of possession. It would be rather 
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remarkable to conclude that an unknown party secreted, without Appellant’s 

knowledge, approximately 200 grams worth of drugs in his master bedroom. 

Additionally, Appellant highlights that his wife was present, suggesting that 

she may have possessed the drugs without Appellant’s knowledge. 

However, our law holds that two persons may constructively possess the 

same item. See Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983) 

(constructive possession in one defendant where both husband and wife had 

equal access to an area where the contraband was found); Commonwealth 

v. Valette, 613 A.2d 548, 550 (Pa. 1992) (“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.”). We find that, when viewed in the light 

most favorable to the Commonwealth, the totality of the circumstances 

established that Appellant constructively possessed the drugs. 

We now address Appellant’s averment that the search warrant was 

defective. “The ultimate issue in a suppression hearing is whether the police 

officer affiants had probable cause at the time they applied for a search 

warrant.” Commonwealth v. Luton, 672 A.2d 819 (Pa.Super. 1996). 

[T]he Commonwealth has the burden of proving that the facts 

presented to the magistrate demonstrate probable cause. The 

standard for evaluating whether probable cause exists for the 

issuance of a search warrant is the “totality of the 

circumstances” test as set forth in Illinois v. Gates, 462 U.S. 

213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted 

by the Pennsylvania Supreme Court in Commonwealth v. 

Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A 

magistrate is to make a “practical, common-sense decision 
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whether, given all the circumstances set forth in the affidavit 

before him, 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.” The information offered to establish probable 

cause must be viewed in a common sense, non-technical manner 

and deference must be given to the issuing magistrate. It must 

be remembered that probable cause is based on a finding of the 

probability of criminal activity, not a prima facie showing of 

criminal activity.

Id. at 821-22 (some citations omitted). 

Appellant’s primary issue concerns whether the warrant application

could lawfully include the information learned from the in-home 

conversations which were recorded by the CI. Appellant challenges the

statutory authorization for the consensual recordings, which Appellant 

maintains were necessary to sustain the warrant. “When the . . . 

paragraphs which specifically rely upon the illegal in-home intercepts are 

redacted from the affidavit, no present probable cause exists[.]” 

Appellant’s brief at 33 (emphasis in original). 

We agree that if the information gleaned from Appellant’s 

conversations with the CI was obtained in violation of Appellant’s 

constitutional rights, those portions must be excised from the warrant. See 

Commonwealth. v. Gindlesperger, 706 A.2d 1216, 1224 (Pa.Super. 

1997), affirmed, 743 A.2d 898 (Pa. 1999) (use of thermal imaging device 

was unconstitutional search and therefore that information must be omitted 

when examining whether search warrant was valid). Appellant’s challenge 
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to the recordings relies on both statutory and constitutional grounds. We

first turn our attention to the Wiretapping and Electronic Surveillance Control 

Act (hereinafter “the Act”), 18 Pa.C.S. §§ 5701-5782.

I

The Wiretap Act

The Act prohibits the intentional interception of any oral 

communication unless all parties consent to the recording. 18 Pa.C.S. §

5703. The Act sets forth a number of exceptions, including an exception for 

consensual interceptions authorized by one party to the conversation, 

subject to the following requirements:

It shall not be unlawful and no prior court approval shall be 

required under this chapter for:

. . . . 

(2) Any investigative or law enforcement officer or any person 

acting at the direction or request of an investigative or law 

enforcement officer to intercept a wire, electronic or oral 

communication involving suspected criminal activities, including, 

but not limited to, the crimes enumerated in section 5708 

(relating to order authorizing interception of wire, electronic or 

oral communications), where:

(i) Deleted.

(ii) one of the parties to the communication has given 

prior consent to such interception. However, no interception 

under this paragraph shall be made unless the Attorney General 

or a deputy attorney general designated in writing by the 

Attorney General, or the district attorney, or an assistant district

attorney designated in writing by the district attorney, of the 

county wherein the interception is to be initiated, has reviewed 
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the facts and is satisfied that the consent is voluntary and has 

given prior approval for the interception[.] 

. . . . 

(iv) the requirements of this subparagraph are met. If an oral 

interception otherwise authorized under this paragraph will take 

place in the home of a nonconsenting party, then, in addition to 

the requirements of subparagraph (ii), the interception shall not 

be conducted until an order is first obtained from the president 

judge, or his designee who shall also be a judge, of a court of 

common pleas, authorizing such in-home interception, based 

upon an affidavit by an investigative or law enforcement officer 

that establishes probable cause for the issuance of such an 

order[.]

18 Pa.C.S. § 5704 (emphasis added).

3

 Therefore, § 5704(2)(ii) permits the 

recording of a conversation when only one party consents, if approved by an 

authorized prosecutor. However, when that recording is to take place inside 

a home, additional requirements are imposed as established by § 

5704(2)(iv); namely, that the president judge of a court of common pleas 

must authorize the intercept after probable cause has been established. We 

have previously stated that this statutory amendment codified the holding of 

Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), discussed in detail 

infra. See Commonwealth v. Fetter, 770 A.2d 762, 766 (Pa.Super. 2001) 

(“In response to Brion the Legislature amended the Wiretap Act to include §

5704(2)(iv)[.]”). 

____________________________________________

3 For ease of reference, we refer to the consensual recordings at issue as a 

wiretap.
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In contrast, a nonconsensual intercept, i.e. one where all parties to the 

conversation are ignorant of monitoring by law enforcement, is not an 

exception to the Act and requires approval by the Superior Court of 

Pennsylvania. Authorized prosecutors can make application with this Court

“for an order authorizing the interception of a wire, electronic or oral 

communication . . . when such interception may provide evidence of the 

commission” of certain enumerated offenses. 18 Pa.C.S. § 5708. 

Additionally, orders permitting nonconsensual wiretaps pursuant to § 5708

require the Commonwealth to establish, inter alia, that “other normal 

investigative procedures with respect to the offense have been tried and 

have failed, or reasonably appear to be unlikely to succeed if tried or are too 

dangerous to employ.” 18 Pa.C.S. § 5709. Orders granted by this Court are 

subject to the timing provisions set forth at 18 Pa.C.S. § 5712: 

(b) Time limits.--No order entered under this section shall 

authorize the interception of any wire, electronic or oral 

communication for a period of time in excess of that necessary 

under the circumstances. . . . No order entered under this 

section shall authorize the interception of wire, electronic 

or oral communications for any period exceeding 30 days. 

The 30-day period begins on the day on which the investigative 

or law enforcement officers or agency first begins to conduct an 

interception under the order, or ten days after the order is 

entered, whichever is earlier.

18 Pa.C.S. § 5712 (emphasis added).4 

____________________________________________

4 The Act refers to orders obtained under “this section.” In context, the 

statute is referring to nonconsensual wiretap orders granted by the Superior 

(Footnote Continued Next Page)
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II

The Parties’ Arguments

Appellant acknowledges that as a matter of statutory analysis, § 

5704(2)(iv) imposes no time limit on consensual wiretaps. However, he 

notes that the statute refers to an interception in the singular, and, 

consistent with pronouncements from our Supreme Court, as well as from 

the United States Supreme Court, he maintains that the Act therefore

authorizes only one intercept as a matter of both constitutional and statutory 

law. “[T]he statute governing in-home consensual intercepts, like the 

Supreme Court decision in Brion, intended the warrant/order to be for a 

single intercept.” Appellant’s brief at 26 (emphasis added). As such, the 

order authorizing the consensual wiretap permitted one recording, i.e., the 

first recording.5 Appellant analogizes all recordings after the first to multiple 

executions of one search warrant. Consequently, Appellant views each 

subsequent recording as an unconstitutional search without prior judicial 

approval. 

(Footnote Continued) _______________________

Court. With respect to consensual wiretaps, like those at issue herein, those 

recordings are deemed to “not be unlawful” and are considered exceptions to 

the Act.

5 The trial court determined that the order was valid because it complied 

with the statutory mandate, and addressed Appellant’s constitutional 

challenge in cursory fashion. 
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In supporting their respective positions, the parties’ briefs extensively 

discuss Brion and the statutory differences between consensual and 

nonconsensual wiretaps. For example, the Commonwealth argues that if the 

Act permits a nonconsensual wiretap for thirty days, then it necessarily 

follows that a consensual recording is likewise constitutionally permissible for 

at least the same length. Moreover, the Commonwealth states that 

Appellant’s interpretation places an onerous burden on law enforcement, as 

the Commonwealth would have to seek new orders if the target happened to 

exit and re-enter his residence while the consenting party was on site.

Appellant responds that the Commonwealth’s argument misses the mark,

since a nonconsensual wiretap order imposes more stringent requirements,

including the need for the Commonwealth to demonstrate that normal 

investigative techniques have failed or are too dangerous to employ. In 

Appellant’s view, the Commonwealth effectively obtained a § 5708 wiretap 

order while sidestepping the requirements applicable to such orders. 

Finally, the Commonwealth advances the position that the search 

warrant does not rely on the actual recordings, and states that “even if no 

recording device had been used in this case at all, the observations of the 

Troopers and the information relayed to them by the CI . . . would still have 
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established probable cause[.]” Commonwealth’s brief at 12.6 In response, 

Appellant counters that “there is no way to ascertain to what extent the 

affiant may have relied on what he heard on the illegally obtained and 

recorded intercepts[.]” Appellant’s reply brief at 5. 

We agree with the Commonwealth with respect to its latter position, 

and affirm on that basis. See Commonwealth v. O'Drain, 829 A.2d 316, 

322, n.7 (Pa.Super. 2003) (we may affirm if there is any basis on the record 

to support the trial court's action, even if we rely on a different basis). In 

reaching this conclusion, we find that the parties have largely overlooked a 

critical distinction between the voluntary disclosure of information versus the 

recording of same. In truth, Appellant seeks to suppress information, not 

the recordings. For the reasons that follow, we find that this is not a mere

technical distinction and is outcome determinative. We therefore decline to 

reach Appellant’s constitutional argument that the Act permits only one inhome intercept. 

III

Constitutional Protections 

____________________________________________

6 The Commonwealth’s argument suggests that the affidavit of probable 

cause was sufficient even in the absence of the statements as captured on 

tape, whereas we find that we may consider Appellant’s statements. “The 

portion of the affidavit that relied upon the contents of the in-home 

recordings was almost vanishingly small and probable cause continues to 

exist even if it is excised from the affidavit.” Commonwealth’s brief at 13. 
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We begin by discussing whether and when citizens have a 

constitutional interest in private conversations, as protected by the Fourth 

Amendment to the United States Constitutions or Article I, Section 8 of the 

Pennsylvania Constitution. Article I, Section 8 provides:

The 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. The Fourth Amendment’s text is similar, and

provides:

The 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. 7 

____________________________________________

7

 Appellant’s suppression motion exclusively raised constitutional grounds, 

and he did not invoke statutory remedies under the Act. See 18 Pa.C.S. § 

5721.1(e) (“The remedies and sanctions described in this subchapter with 

respect to the interception of wire, electronic or oral communications are the 

only judicial remedies and sanctions for nonconstitutional violations of this 

subchapter involving such communications.”). In his brief, he states that 

“[T]he statutory exclusionary rule as set forth in § 5721(a) and (b) applies, 

as does the constitutional exclusionary rule.” Appellant’s brief at 30. His 

substantive argument is limited to constitutional grounds and we therefore 

limit our examination to those arguments. 
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We separately analyze federal and state precedents with respect to 

this issue, as “Although the wording of the Pennsylvania Constitution is 

similar in language to the Fourth Amendment . . . we are not bound to

interpret the two provisions as if they were mirror images, even where the 

text is similar or identical.” Commonwealth v. Edmunds, 586 A.2d 887, 

895–96 (Pa. 1991) (footnote omitted).

A

Fourth Amendment 

The United States Supreme Court has held that there is no Fourth 

Amendment interest in information disclosed during conversations, even if 

one of the citizens is actually an agent of the government. In Hoffa v. 

United States, 385 U.S. 293 (1966), the Court was asked to overturn a 

conviction on the basis of a Fourth Amendment violation. Briefly stated, 

James Hoffa, the president of the International Brotherhood of Teamsters, 

was on trial for another matter over a lengthy period of time. During that 

trial, Edward Partin, a local Teamsters official, visited Hoffa’s hotel room. 

Partin, who was under indictment for embezzlement, had agreed to act as an 

informer for the Government. Partin engaged in multiple conversations with 

Hoffa and his associates, which concerned schemes by Hoffa to bribe the 

jury. Partin thereafter disclosed the contents of those conversations to 

federal agents. These conversations occurred at various locations, including
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Hoffa’s hotel. Partin testified at a later trial, where Hoffa was convicted of 

attempting to influence a juror. 

Hoffa alleged that his Fourth Amendment rights were violated because 

Partin failed to disclose his role as a government informer. Therefore, “by 

listening to [Hoffa]’s statements Partin conducted an illegal ‘search’ for 

verbal evidence.” Id. at 300. The Court disagreed, finding that Hoffa had 

no Fourth Amendment interest in that which he voluntarily disclosed to 

Partin. 

[I]t is evident that no interest legitimately protected by the 

Fourth Amendment is involved. It is obvious that the petitioner 

was not relying on the security of his hotel suite when he made 

the incriminating statements to Partin or in Partin's presence. 

Partin did not enter the suite by force or by stealth. He was not a 

surreptitious eavesdropper. Partin was in the suite by 

invitation, and every conversation which he heard was 

either directed to him or knowingly carried on in his 

presence. The petitioner, in a word, was not relying on the 

security of the hotel room; he was relying upon his misplaced 

confidence that Partin would not reveal his wrongdoing. As 

counsel for the petitioner himself points out, some of the 

communications with Partin did not take place in the suite at all, 

but in the ‘hall of the hotel,’ in the ‘Andrew Jackson Hotel lobby,’ 

and ‘at the courthouse.’

Neither this Court nor any member of it has ever expressed the 

view that the Fourth Amendment protects a wrongdoer's 

misplaced belief that a person to whom he voluntarily confides 

his wrongdoing will not reveal it.
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Id. at 302 (emphasis added, footnote omitted). Thus, even within the 

confines of the home, an individual has no privacy interest in whatever he 

chooses to disclose voluntarily to his guests.

8

 

Hoffa and other cases discussed within its body precede the seminal 

case of Katz v. United States, 389 U.S. 347 (1967), wherein the High 

Court held that the Fourth Amendment was violated when the police

installed a listening device to the outside of a phone booth, which captured 

Katz’s side of the phone conversations. The Court rejected the notion that a

Fourth Amendment search can only occur if there is a physical intrusion into 

a constitutionally protected area, and held that the Government “violated 

the privacy upon which he justifiably relied . . . and thus constituted a 

‘search and seizure’ within the meaning of the Fourth Amendment.” Id. at 

353.9 Thus, Katz addressed whether the individual had a reasonable 

expectation of privacy inside the phone booth, which necessarily included 

privacy in the contents of his conversations. Compare Smith v. Maryland, 

____________________________________________

8 Hoffa’s argument was, in part, that his consent for Partin’s presence in his 

quarters was given with the expectation Partin was not working on behalf of 

the government. The Court did not find that the statement was 

“involuntary” as a result of that deception. 

9 Justice Harlan’s concurring opinion, which was later adopted by a majority 

of the Court, determined that an individual must demonstrate a reasonable 

expectation of privacy, which requires an assessment of whether (1) the 

individual exhibited a subjective expectation of privacy, and (2) whether that 

expectation is one society is prepared to recognize as reasonable. Katz v.

United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). 
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442 U.S. 735, 741 (1979) (pen register device that captured dialed phone 

numbers was not a Fourth Amendment search as there was no reasonable 

expectation of privacy; “[A] pen register differs significantly from the 

listening device employed in Katz, for pen registers do not acquire 

the contents of communications.”) (emphasis in original).

Furthermore, the High Court has not definitively addressed whether

broadcasting an in-home conversation, as opposed to merely relating the 

contents of the conversation as in Hoffa, violates the Fourth Amendment. 

In United States v. White, 401 U.S. 745 (1971), a plurality of the Court 

noted that “Hoffa . . . which was undisturbed by Katz, held that however 

strongly a defendant may trust an apparent colleague, his expectations in 

this respect are not protected by the Fourth Amendment when it turns out 

that the colleague is regularly communicating with the authorities.” Id. at 

749. White analyzed whether the outcome changes when an informer not 

only records the conversations “but instantaneously transmits them 

electronically to other agents equipped with radio receivers.” Id. at 750. 

The plurality reexamined the prior precedents in light of Katz and concluded

that there was no constitutional difference between disclosing the contents 

of the conversation and recording/transmitting the same. Hence, the 

defendant did not have a reasonable expectation of privacy in what was said 

to a willing informer. The Court reasoned that since Hoffa permits an agent 
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to write down what he hears, it follows that he may both record and transmit 

the conversations. 

If the conduct and revelations of an agent operating without 

electronic equipment do not invade the defendant's 

constitutionally justifiable expectations of privacy, neither does a 

simultaneous recording of the same conversations made by the 

agent or by others from transmissions received from the agent 

to whom the defendant is talking and whose trustworthiness the 

defendant necessarily risks.

Our problem is not what the privacy expectations of particular 

defendants in particular situations may be or the extent to which 

they may in fact have relied on the discretion of their 

companions. Very probably, individual defendants neither know 

nor suspect that their colleagues have gone or will go to the 

police or are carrying recorders or transmitters. Otherwise, 

conversation would cease and our problem with these 

encounters would be nonexistent or far different from those 

now before us. Our problem, in terms of the principles 

announced in Katz, is what expectations of privacy are 

constitutionally ‘justifiable’—what expectations the Fourth 

Amendment will protect in the absence of a warrant. So far, the 

law permits the frustration of actual expectations of privacy by 

permitting authorities to use the testimony of those associates 

who for one reason or another have determined to turn to the 

police, as well as by authorizing the use of informants in the 

manner exemplified by Hoffa and Lewis. If the law gives no 

protection to the wrongdoer whose trusted accomplice is 

or becomes a police agent, neither should it protect him 

when that same agent has recorded or transmitted the 

conversations which are later offered in evidence to prove 

the State's case. 

Id. at 751–52 (emphasis added, citation omitted). 

Appellant, on the other hand, apparently sees no constitutional 

distinction between Hoffa and Katz. He cites the following quotation from 

Berger v. New York, 388 U.S. 41 (1967), as applying to the issue at hand: 
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“Few threats to liberty exist which are greater than that posed by the use of 

eavesdropping devices.” Id. at 63. This quotation has no applicability to 

this case. Whether the CI recorded the conversations or not, Appellant still 

disclosed information to an informer, who was free to tell the authorities 

what he had learned. “It would be a dubious service to the genuine liberties 

protected by the Fourth Amendment to make them bedfellows with spurious 

liberties improvised by farfetched analogies which would liken eavesdropping 

on a conversation, with the connivance of one of the parties, to an 

unreasonable search or seizure.” White, supra at 750 (quoting On Lee v. 

United States, 343 U.S. 747 (1952)). 

In summary, as a matter of Fourth Amendment law, there is no 

constitutional issue when a person, such as the CI herein, enters the home 

of a citizen and records the conversations. In those situations, the speaker 

has voluntarily disclosed information, and the speaker cannot claim a 

reasonable expectation of privacy in either the information or a 

simultaneous recording of that information.

10

 Therefore, no search occurs 

when the conversations are captured on a recording device. 

____________________________________________

10 Some federal decisions have held that the further intrusion of capturing 

video evidence of what occurred inside the home, as opposed to merely 

recording conversations, is permissible. See e.g. United States v. 

Wahchumwah, 710 F.3d 862, 867 (9th Cir. 2013) (en banc) (“We are 

persuaded that it is not ‘constitutionally relevant’ whether an informant 

utilizes an audio-video device, rather than merely an audio recording device, 

(Footnote Continued Next Page)
J-E02004-17

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B

Article I, Section 8

The fact that the Fourth Amendment does not apply as a matter of 

federal law does not end the matter. The States are free to impose greater 

protections, and, as previously mentioned, our Supreme Court has directly 

confronted the issue of in-home recordings under the Pennsylvania 

Constitution in Brion, supra, which we now examine. 

In Brion, the police, with prosecutorial approval, sent a consenting 

confidential informant to purchase marijuana from Michael Brion at his 

residence and record the conversation. The Commonwealth had relied upon 

18 Pa.C.S. § 5704(2)(ii), which, as previously quoted, permitted 

interceptions upon prosecutorial approval and where one party to the

conversation consents. Brion “filed a timely motion to suppress the tape 

recording of the transaction between himself and the informant.” Id. at 

287 (emphasis added). Our Supreme Court agreed, finding that compliance 

with § 5704(2)(ii) under the circumstances resulted in an unconstitutional

search. First, the Court held that an individual has a reasonable expectation 

of privacy with respect to the conversations under Article I, Section 8, 

thereby departing from the foregoing federal precedents. 

(Footnote Continued) _______________________

to record activities occurring inside a home, into which the informer has 

been invited.”).
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[T]he instant case involves conversations taking place in the 

sanctity of one's home. If nowhere else, an individual must feel 

secure in his ability to hold a private conversation within the four 

walls of his home. For the right to privacy to mean anything, it 

must guarantee privacy to an individual in his own home. . . . 

. . . . 

[W]e hold that an individual can reasonably expect that his right 

to privacy will not be violated in his home through the use of any 

electronic surveillance. 

Id. at 289 (footnote omitted). With respect to the fact that the Act 

authorized the intercept, Brion declined to find the section wholly 

unconstitutional but applied the construction that “interception pursuant to 

18 Pa.C.S. § 5704(2)(ii) can only be deemed constitutional under Article 1, 

Section 8 if there has been a prior determination of probable cause by a 

neutral, judicial authority.” Id. at 289. As quoted in the foregoing 

discussion, the Act was thereafter amended in response to Brion. Fetter, 

supra. 

Thus, Brion stands for the proposition that a citizen has a reasonable 

expectation of privacy that his conversations will not be recorded by his 

guests, and therefore the actual recordings are subject to suppression. 

“Because there was no determination of probable cause by a neutral judicial 

authority, the consensual body wire violated Article I, Section 8 and the tape 

recording of the transaction in Brion's home should have been suppressed.” 

Id. at 289. 
J-E02004-17

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It does not, however, invariably follow that the information itself is 

likewise subject to suppression. This concept was discussed in 

Commonwealth v. Rekasie, 778 A.2d 624 (Pa. 2001). Rekasie was not

cited by the parties, but we believe that the case highlights the crucial

distinction between using an actual recording as substantive evidence versus 

relying on the information itself for purposes of a search warrant. In 

Rekasie, a confidential informant, Thomas Tubridy, informed the police that 

Vincent Rizzo, a Florida resident, supplied cocaine to Kirk Rekasie. A 

prosecutor, without prior court approval, approved the recording of phone 

conversations between Tubridy and Rekasie. The Court discussed whether 

Rekasie had a reasonable expectation of privacy in his telephone 

conversations with Tubridy, as the Commonwealth relied on the concept of 

disclosure to rebut that expectation. Rekasie acknowledged that “[this] 

analytic framework, which this court has applied in considering privacy 

expectations . . . has been less than clear.” Id. at 628. Rekasie engaged 

in a thorough analysis of disclosure, which rejected the analysis of White, 

supra: 

This concept, that one does not have an expectation of privacy in 

information voluntarily disclosed to another, has been 

consistently applied by the federal high court in denying 

assertions of expectations of privacy under the Fourth 

Amendment; yet, our court has not followed federal 

jurisprudence lock-step. While on occasion, this court has 

utilized the disclosure concept to vitiate an assertion of a privacy 

expectation, most notably in [Commonwealth v.]Blystone[, 

549 A.2d 81 (1988)], more recent case law makes clear that our 
J-E02004-17

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court has not strictly adhered to the federal tenet that an 

individual maintains no expectation of privacy in information 

disclosed to others. Thus, under Pennsylvania Constitutional 

jurisprudence, it is manifest that a citizen's expectation of 

privacy can extend, in some circumstances, to information 

voluntarily disclosed to others.

. . . . 

In the context of a verbal communication, in Brion, our court 

held that Article I, Section 8 prevents police from sending a 

confidential informant into the home of an individual to 

electronically record his conversation by use of a body wire 

absent a prior determination of probable cause by a neutral 

judicial authority. In finding a constitutionally-recognized 

expectation of privacy, our court's primary focus was on the 

zone of privacy in the home and the face-to-face conversations 

taking place therein. The majority did not embrace an analysis 

based on the disclosure of information, which, as described 

above, and by the dissenters in Brion, would have resulted in no 

recognized expectation of privacy. Thus, contrary to the analysis 

utilized in White, our court, while still applying the Katz privacy 

expectation construct, found a legitimate expectation of privacy 

in face-to-face conversations conducted within one's home.

. . . . 

In summary, unlike the United States Supreme Court, our court 

has declined to embrace a constitutional analysis under Article I, 

Section 8 that relies primarily upon a principle of disclosure. For 

over twenty years, our court has transcended such a limited 

analysis and has focused, even when information is voluntarily 

disclosed to another, on the test in Katz, i.e., both the person's 

actual expectation of privacy and the societal recognition of such 

an expectation of privacy as being reasonable-a construct which 

in this Commonwealth takes into account the circumstances of 

the situation surrounding the disclosure of information as well as 

the individual's conduct. We now turn to application of this 

standard.

Applying the Katz privacy expectation construct that has 

evolved under this court's jurisprudence to the case sub 

judice, we find that while Rekasie might have possessed an 
J-E02004-17

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actual or subjective expectation of privacy in the telephone 

conversation with Tubridy, because of the nature of telephonic 

communication, it is not an expectation that society would 

recognize as objectively reasonable. 

Id. at 629–31 (footnotes omitted). The Court in Rekasie opined that Brion

did not warrant a contrary result, because phone calls are “[q]ualitatively 

different than a face-to-face interchange occurring solely within the home in 

which an individual reasonably expects privacy and can limit the uninvited 

ear[.]” Id. at 632. Therefore, Rekasie distinguished Brion and permitted 

the introduction of the actual recorded conversations, based on the fact that 

there was no reasonable expectation of privacy in the phone conversation. 

While some language in Rekasie appears to broadly embrace the 

notion that an individual retains an expectation of the privacy in the 

information itself, as expressed in the quotation “it is manifest that a 

citizen's expectation of privacy can extend, in some circumstances, to 

information voluntarily disclosed to others,” id. at 630, that observation was 

dicta due to the fact that the Court held that Rekasie had no reasonable 

expectation of privacy that his phone conversations would not be recorded. 

Then-Chief Justice Castille, joined by now-Chief Justice Saylor, authored a 

concurring opinion distancing himself from that dicta:

My point of qualification concerns dicta in the majority opinion 

concerning whether and when a person may retain a reasonable 

expectation of privacy in the information itself that he discloses 

to others. Majority Op. at 629-31. With respect to this 

discussion, it is essential to recognize what is and is not at issue 

in this case. This Court does not face a claim that 
J-E02004-17

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the substance of appellant's telephone conversation with 

Tubridy was subject to suppression; i.e., there is no claim that 

Tubridy should be constitutionally precluded from repeating in 

court the specific words that he recalled appellant saying to him 

telephonically. Instead, here, as in Commonwealth v. 

Brion, 539 Pa. 256, 652 A.2d 287 (1994), Commonwealth v. 

Blystone, 519 Pa. 450, 549 A.2d 81 (1988), aff'd on other 

grounds, Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 

1078, 108 L.Ed.2d 255 (1990), and Commonwealth v. 

Alexander, 551 Pa. 1, 708 A.2d 1251 (1998), the claim is that 

a tape recording of that conversation, made with Tubridy's 

express consent, should be excluded from evidence.

The distinction is significant. In my view, the teaching 

in Commonwealth v. Blystone, respecting the nature of oral 

communications, remains controlling as to the expectation of 

privacy one may have in what one says to another. Citing with 

approval to authority from the United States Supreme Court in 

that Article I, § 8 case, Blystone noted that, “a thing remains 

secret until it is told to other ears, after which one cannot 

command its keeping. What was private is now on other lips and 

can no longer belong to the teller. What one chooses to do with 

another's secrets may differ from the expectation of the teller, 

but it is no longer his secret.” 549 A.2d at 87. Implicit in this 

observation about the very nature of privacy expectations in oral 

communications was the recognition that one's listeners can, and 

often do, repeat the content of a conversation to anyone they 

choose. That reality, in turn, suggests that, at least in the 

absence of some recognized privilege, the speaker cannot be 

said to possess any reasonable expectation that the contents of 

the conversation itself will remain private once the words are 

related to another.

Id. at 633–34 (Castille, C.J., concurring) (emphases in original). 

The instant case squarely presents the issue of whether a defendant is 

entitled to preclude consideration of the substance of conversation, 

assuming arguendo that the simultaneous recording of that conversation 

occurred in violation of Appellant’s constitutional rights as set forth in Brion.
J-E02004-17

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IV

Validity of the Affidavit

More specifically, the question is whether the affidavit of probable 

cause could lawfully include the information learned from Appellant’s 

conversations with the CI, even if the conversations were unlawfully 

recorded. We hold that the information itself was not subject to 

suppression, and that remains true even if all recordings after the first 

violated Appellant’s rights under Article I, Section 8. 

Applying the foregoing precedents and principles, we find that the 

Commonwealth received the information twice: once when the CI told the 

officers that which Appellant voluntarily disclosed, and a second time when 

the CI performed a search by capturing Appellant’s actual words on tape. 

Brion and the Pennsylvania Constitution dictate that Appellant had a 

reasonable expectation of privacy that his words would not be recorded, but 

we find that Appellant had no reasonable expectation of privacy with respect 

to the information itself, which he freely disclosed to the CI, who in turn 

relayed the information to the authorities. 

Brion, and the Act’s implementation of that case, addresses only 

whether there is a reasonable expectation of privacy that Appellant’s 

conversations would not be recorded by his guests. This is evident from the 

fact that the issue in Brion was an attempt to suppress the recording itself 

as substantive evidence. We decline to extend an expectation of privacy to 
J-E02004-17

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the information itself. Appellant took the risk that the CI was acting on 

behalf of the Commonwealth, and as a result had no reasonable expectation 

of privacy in what he said and showed the CI. Hoffa, supra. To take 

Appellant’s argument to its logical conclusion, i.e. that Appellant had a 

reasonable expectation of privacy in the actual substance of his 

conversations, then the Commonwealth needed prior judicial approval before 

asking the CI to enter Appellant’s residence in the first instance.11 That 

result would remarkably expand the reach of Brion, and would 

constitutionally prohibit the use of, inter alia, confidential informants and 

undercover agents, without prior judicial approval. 

Thus, when we remove the recordings themselves from the equation, 

the Commonwealth lawfully obtained everything Appellant relayed to the 

CI.

12

 “[E]vidence . . . is potentially suppressible as fruit of the poisonous 

____________________________________________

11 The Dissent states that this conclusion is incorrect, because “it is the faceto-face communication in one’s home that is constitutionally and legislatively 

protected from surreptitious electronic seizure.” Dissenting Opinion, at 2

n.1. If the communications, i.e., the actual words said, are protected in 

their entirety, then it is unclear why a CI sent inside the home by direction 

of the Commonwealth can repeat the words said to him absent prior judicial 

approval of the entry into the home. We draw a distinction between a 

search of those words as contained within the recordings versus a “search” 

occasioned by the confidential informant hearing the words. We find that 

Appellant had no reasonable expectation of privacy in the actual substance 

of his conversations.

12 To the extent that it matters whether the CI actually related the 

information, as opposed to simply supplying the recordings for police review

(Footnote Continued Next Page)
J-E02004-17

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tree stemming from unconstitutional police conduct. However, . . . any such 

evidence may be admitted where the Commonwealth sufficiently proves that 

it was . . . discoverable through an independent source.” Commonwealth 

v. Santiago, 160 A.3d 814, 827 (Pa.Super. 2017). The independent source 

in this case was Appellant’s voluntary disclosures to the CI. Therefore, the 

search warrant did not rely upon evidence derived from an unlawful wiretap, 

but rather the information disclosed to the authorities, which happened to 

also be recorded. Therefore, it is incorrect to posit that the Commonwealth 

derived its evidence from an unlawful wiretap, since the Commonwealth 

knew the same information with or without the recordings. 

V

The Continuing Vitality of Brion

We are, of course, mindful of the fact that this Court has no authority 

to overrule Pennsylvania Supreme Court precedent. In reaching our 

conclusion, we do not hold that the multiple intercepts were consistent with 

Brion and its interpretation of Article I, Section 8, an issue that both parties 

ask us to reach. The parties presented reasoned arguments respecting that 

issue. As Appellant notes, the Act was amended to codify Brion, and the 

statutory language facially permits the Commonwealth to secure an open-

(Footnote Continued) _______________________

without debriefing, the affidavit of probable cause makes plain that the CI 

frequently met with the investigating officers and discussed the contents of

his conversations, with certain details corroborated by the recordings. 
J-E02004-17

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ended order authorizing in-home intercepts for an indefinite period of time. 

On the other hand, Appellant’s proposed “one recording only” rule would 

require the Commonwealth to secure a separate order if the target and the 

consensual recorder happened to leave the home for a trip to the store and 

returned to a residence. The lack of statutory direction on this point is a 

matter for the Legislature. 

We emphasize that in our holding today, we offer no opinion on 

whether the recordings themselves violated Appellant’s constitutional rights

under Article I, Section 8. In the event that Appellant’s rights actually were 

violated, suppression of the recordings themselves is no mere constitutional 

consolation prize. Obviously, playing a recorded statement of Appellant’s 

own words, in his own voice, is far more probative and damaging than 

offering a CI’s testimony as to the substance of the conversations. 

Therefore, Brion places a check on the Commonwealth’s ability to wield a 

defendant’s own words against him, a check that remains in place following 

our decision today. We are concerned here only with whether Appellant was 

entitled to suppress what the Commonwealth learned. 

Accordingly, for all the foregoing reasons, we decline to excise the 

challenged material from the warrant, and the trial court did not err in 

denying his motion. 

VI

Whether the Anticipatory Warrant was Valid
J-E02004-17

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We now address the remaining claim, which is that the anticipatory 

search warrant failed to comply with the Fourth Amendment even with 

consideration of all the information. The standard of review for search 

warrants, set forth supra, applies to these challenges. With respect to the 

issue of anticipatory search warrants, the following additional principles 

inform our analysis.

When considering whether an anticipatory search warrant was 

supported by probable cause under the Fourth Amendment of 

the United States Constitution and Article I, Section 8 of the 

Pennsylvania Constitution, judicial review is confined to the 

averments contained within the four corners of the affidavit of 

probable cause. Further, “[w]hether a particular anticipatory 

warrant should or should not be approved . . . will depend upon 

the sufficiency of the averments in the individual case.”

Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012) (footnotes 

and citations omitted). In United States v. Grubbs, 547 U.S. 90 (2006), 

the High Court established that anticipatory search warrants are not per se 

unconstitutional. The Court explained: 

An anticipatory warrant is a warrant based upon an affidavit 

showing probable cause that at some future time (but not 

presently) certain evidence of crime will be located at a specified 

place. Most anticipatory warrants subject their execution to 

some condition precedent other than the mere passage of time—

a so-called “triggering condition.” The affidavit at issue here, for 

instance, explained that execution of the search warrant will not 

occur unless and until the parcel containing child pornography

has been received by a person(s) and has been physically taken 

into the residence. If the government were to execute an 

anticipatory warrant before the triggering condition occurred, 

there would be no reason to believe the item described in the 

warrant could be found at the searched location; by definition, 
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the triggering condition which establishes probable cause has not 

yet been satisfied when the warrant is issued.

Id. at 94 (cleaned up).

13

 As stated in Wallace, supra, the Grubbs decision 

established two requirements which an affidavit of probable 

cause in support of an anticipatory search warrant must meet 

under the Fourth Amendment: (1) there is probable cause to 

believe the triggering condition will occur; and (2) if the 

triggering condition occurs there is a fair probability that 

contraband or evidence of a crime will be found in a particular 

place. The high Court also held that the supporting affidavit 

must provide the magistrate with sufficient information to 

evaluate both aspects of the probable-cause determination.

Id. at 1049 (cleaned up). 

Appellant maintains that the instant application failed to establish the 

first prong because there was no basis for a finding of probable cause that

“drugs might be on their way.” Appellant’s brief at 45. He argues that the 

Commonwealth was required to establish the probability of a drug delivery 

to Appellant’s residence. “The affiant therefore sought to establish that 

appellant Katona would obtain drugs[.]” Id. (emphasis in original). 

____________________________________________

13 “Cleaned up” is a new parenthetical designed to “tell readers that they 

have removed extraneous material for readability and guarantee that 

nothing removed was important.” See Metzler, Jack, Cleaning Up 

Quotations (March 17, 2017). Journal of Appellate Practice and Process, 

2018, Forthcoming. Available at http://dx.doi.org/10.2139/ssrn.2935374. 

The superfluous material encompassed by the parenthetical includes 

brackets, ellipses, quotation marks, internal citations, and footnote 

references.
J-E02004-17

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We disagree. This case is not a typical anticipatory search warrant 

case, since, as reflected in the foregoing quotations, the triggering condition 

is usually the arrival of some illegal material, such as a package containing 

child pornography or narcotics. However, Appellant’s argument proceeds 

from a flawed premise, as the triggering condition was not the receipt of 

the drugs, but rather Appellant’s signal that he would deliver drugs to the 

CI. 

Wallace, supra, establishes that anticipatory warrants are not limited 

to the arrival of an item. Therein, our Supreme Court reviewed an 

anticipatory search warrant regarding the sale of drugs from a particular 

residence. The application for the search warrant relied upon information

from a CI that a black male known as Greg used a gold-colored Mercedes to 

deliver narcotics. The application represented that the informant stated he 

could purchase cocaine from Greg at a particular residence between the 

hours of 7:00 p.m. and 10:00 p.m. The CI also provided Greg’s cell phone 

number.

Based on this information, an officer sought an anticipatory search 

warrant for that residence. The affidavit set forth that further investigation 

revealed that Gregory Wallace lived at the particular home, and a criminal 

background check revealed that Wallace had listed in his papers the same 

phone number supplied by the CI. The affidavit further stated that the CI 

had reliably provided information in the past. The search warrant was to be 
J-E02004-17

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executed upon the triggering condition of the sale of drugs at the residence. 

The warrant was issued, and, on that same day, the CI entered the 

residence and returned several minutes later with two bags of cocaine. 

Authorities then executed the search warrant.

Our Supreme Court determined that the anticipatory warrant 

application amounted to little more than an assertion that the informant 

could arrange a drug sale, which is insufficient. In other words, the fact that 

drugs were actually sold to the CI from Wallace’s residence said nothing 

about whether the magistrate could lawfully conclude ex ante that probable 

cause existed that the sale would occur. In this vein, Wallace emphasized 

that the search warrant application gave no indication that the drugs would 

be inside Wallace’s residence. The CI’s information revealed only that “Greg” 

sold cocaine from his car, not his home, and the warrant did not provide any 

details of “Greg’s” prior sales. Moreover, the fact that the phone number 

and address were linked to Wallace was of little value, as that information 

was publicly available. Additionally, the police failed to confirm through their 

own investigation that Wallace used his residence for selling drugs. Of note 

to the issue at bar, the Court stated: 

There was no factual basis in the affidavit which established that 

the confidential informant had any past relationship with “Greg,” 

ever witnessed “Greg” in possession of drugs, or, critically, had 

been inside of Appellant's home recently and observed drugs 

stored there. Furthermore, there were no facts in the affidavit 

which suggested that the confidential informant had, at any 

time, personally purchased drugs from “Greg,” or witnessed 
J-E02004-17

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“Greg” selling drugs at any location, let alone at Appellant's 

home. In short, the affidavit contained only the informant's bare 

assertion that he could effectuate a controlled purchase at 

Appellant's home at a particular time.

Id. at 1050 (emphasis in original). Notably, Wallace did not suggest that 

the Commonwealth would have to establish that Wallace’s home would 

receive the drugs which were then sold. The case implicitly endorsed the 

notion that the sale of drugs from a home could serve as a triggering 

condition if sufficiently supported. 

In contrast to Wallace, the affidavit for the anticipatory search

warrant in this case supplied a wealth of information regarding the recent

presence of narcotics in Appellant’s residence, as well as Appellant’s prior 

deliveries to the CI. The application sets forth the details of four prior 

occasions where Appellant supplied drugs to the CI, two of which occurred at 

Appellant’s residence. Each time, Appellant would supply more drugs when 

the CI paid for the prior deliveries. The last three deliveries all occurred 

within weeks of each other. Thus, the application established a pattern 

whereby Appellant would provide a fresh delivery of drugs upon payment for 

the previous deliveries. 

Most significantly, the June 27, 2011 incident concluded with Appellant 

telling the CI that additional drugs would be available on June 29, a 

statement that was made after the CI provided payment for the last 

delivery. We find that a reviewing magistrate could determine that “(1) 
J-E02004-17

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there is probable cause to believe the triggering condition will occur; and (2) 

if the triggering condition occurs there is a fair probability that contraband or 

evidence of a crime will be found in a particular place.” Id. at 1049. While 

the triggering condition largely overlaps with the second requirement, as

Appellant’s contact to the CI provided the basis to believe Appellant’s 

residence contained the contraband, this is not a case, as in Wallace, where 

the affidavit did little more than indicate that a drug sale could be arranged. 

The search warrant application provided sufficiently specific information to 

conclude there was probable cause to believe that Appellant would call the 

CI on June 29, 2011, to supply more drugs. Therefore, we deny relief on 

this ground.

Judgment of sentence affirmed. 

Judge Olson, Judge Ott, Judge Stabile and Judge Dubow join this 

opinion.

President Judge Gantman concurs in the result of this opinion.

Judge Lazarus files a dissenting opinion in which Judge Shogan joins.

President Judge Emeritus Bender did not participate in the consideration or 

decision of this case.
J-E02004-17

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/14/2018