J-S09020-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYREE JOHNSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2942 EDA 2018

Appeal from the Judgment of Sentence Entered September 24, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000327-2018

BEFORE: SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.: Filed: April 30, 2020

Tyree Johnson appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, following his convictions for 

possession of a controlled substance,1 possession with intent to deliver 

(PWID),2 conspiracy—PWID,

3 and possession of drug paraphernalia.4

 Upon 

careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16).

2 35 P.S. § 780-113(a)(30).

3 18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).

4 35 P.S. § 780-113(a)(32).
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Throughout the first week of November 2017, Officer Michelle Proctor of 

the Philadelphia Police Department and her partner, Officer Beattie,5

conducted surveillance of a residence located at 1841 Morris Street in 

Philadelphia, after receiving information that narcotics were being sold at that 

address. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 6-8. 

Over the course of the week, the officers conducted five controlled drug 

purchases at the house with the assistance of a confidential informant (CI)

who previously participated in numerous investigations that led to several 

arrests and drug confiscations. Id. at 15-16.

On November 1, 2017, the officers gave the CI twenty dollars of prerecorded buy money and instructed the CI to purchase marijuana at the 

house. Id. at 8. From her vehicle, Officer Proctor observed the CI speak with 

Johnson and an unknown male outside the house. Id. at 8-9, 20. Officer 

Proctor watched the CI hand the buy money to the unknown male, who 

handed the CI a clear bag containing a substance that was later tested and 

confirmed to be marijuana. Id. at 8-10. Following the purchase, Johnson and 

the unknown male entered the house. Id. at 9. The next day, November 2, 

2017, the officers gave the CI another twenty dollars of pre-recorded buy 

money and instructed the CI to purchase marijuana at the house again. Id. 

at 10. Officer Proctor observed Johnson exit the house and speak with the CI, 

____________________________________________

5 Only Officer Beattie’s surname and badge number (No. 9597) are provided 

in the certified record. See N.T. Suppression/Motion to Compel Hearing/Trial, 

7/10/18, at 8, 12, 63.
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who handed Johnson the buy money. Id. Johnson returned inside, came 

back out, and handed the CI a clear bag containing marijuana. Id. On

November 3, 2017, the officers gave the CI forty dollars of pre-recorded buy 

money and instructed the CI to purchase crack cocaine and heroin at the 

house. Id. Officer Proctor watched Johnson exit the house, speak with the 

CI, and take the buy money from the CI. Id. at 10-11. Johnson went inside, 

came back out, and gave the CI two red packets containing a substance later 

tested and confirmed to be heroin, and one yellow packet containing a 

substance later tested and confirmed to be crack cocaine. Id. On November 

6, 2017, the officers gave the CI twenty dollars of pre-recorded buy money 

and instructed the CI to purchase crack cocaine at the house again. Id. at 

11. Officer Proctor saw Johnson on the front steps of the house and saw the 

CI walk to and from the house, but did not witness any exchange because 

traffic obstructed her view. Id. The CI returned to the officers with one 

orange packet containing crack cocaine. Id. Officer Proctor then applied for 

and obtained a search warrant for the house. Id.

The following day, November 7, 2017, Officers Proctor and Beattie met 

with the CI near the house, handed the CI twenty dollars of pre-recorded buy 

money, and instructed the CI to purchase crack cocaine at the house a third 

time. Id. at 12. The CI spoke with Quadir Rodison on the front steps of the 

house and, as Rodison went inside, another man, Ramon Dixon, guarded the 

doorway. Id. Rodison returned and, in exchange for the pre-recorded buy 

money, handed the CI two clear packets containing crack cocaine before he 
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and Dixon went back inside. Id. Officer Beattie relayed this information to 

backup officers in the area and instructed them to execute the search warrant. 

Id. at 13. Johnson and his cousin Ramel6 entered the premises minutes 

before the warrant was executed. Id. at 24, 74-76. As seven or more officers

dressed in full raid gear approached the house, they observed Rodison in the 

window beside the front door, and attempted to “play it off initially” by walking 

“a little bit past the first house.” Id. at 13, 33. Upon seeing the raid team

ascend the steps, however, Rodison ran away from the window, away from 

the direction of the front door beside him. Id. at 13, 18, 31-33. Noticing

Rodison’s flight, the raid team used force to open the front door of the house 

without knocking or announcing their identity and purpose.7 Id. at 13, 32.

Inside the house, the raid team found Johnson, Rodison, Dixon, and 

Ramel in the front bedroom of the second floor. Id. All four men were 

detained, identified, and placed under arrest. Id. at 13. Police recovered two 

packets of heroin from underneath the bed, $178 in pre-recorded buy money 

from Dixon, and $63 in pre-recorded buy money from Rodison. Id. at 13-14. 

From the middle bedroom, police recovered one clear bag containing 13 

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6 Officer Proctor and the Commonwealth refer to Ramel as “Ramel Robinson,” 

N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13, 14, 18, 28, 

but Johnson testified that Ramel’s last name is “Rodison.” Id. at 76.

7

In that moment, Officer Proctor was behind the house securing the rear exit, 

and she did not personally observe Rodison flee from the window; she was 

informed of Rodison’s flight via police surveillance radio immediately prior to 

the raid team’s entry. N.T. Suppression/Motion to Compel Hearing/Trial, 

7/10/18, at 28-33.
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orange packets of crack cocaine, one clear bag containing 15 grams of bulk 

crack cocaine, six clear jars of marijuana, one tin can containing 98 packets 

of heroin, and a scale. Id. at 14. From the rear bedroom, police recovered 

five jars of marijuana, “one packet of [h]eroin stamped, El Chapo,” four brown 

boxes of unused blue glassine bags (used for packaging heroin), Johnson’s 

probation card, and a Pennsylvania ID bearing Johnson’s name and the 

address of that house, 1841 Morris Street. Id. at 14-16.

On July 10, 2018, the trial court held a hearing on Johnson’s motion to 

suppress the evidence recovered from his house, during which Officer Proctor 

testified to the facts above. See id. at 7-36. The trial court denied Johnson’s 

motion. See id. at 47-49. The court proceeded to hear argument on 

Johnson’s motion to compel the disclosure of the identity of the CI, which the 

court also denied. See id. at 49-56. That same day, Johnson waived his right 

to a jury trial and the Honorable William Mazzola found him guilty of the 

above-stated crimes. See id. at 57-60, 84. On September 24, 2018, the 

court sentenced Johnson to an aggregate term of one to three years’ 

imprisonment followed by five years of probation. Johnson timely filed a 

notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. Johnson raises the following issues for our 

review:

1. [Whether t]he trial court erred by denying the [m]otion to 

[s]uppress where the police violated the knock and announce 

rule when entering [Johnson’s] premises without any exigent 

circumstances[?]
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2. [Whether t]he trial court erred by denying the [m]otion to 

[c]ompel [d]isclosure of [CI] where the [CI’s] identity was 

material to the defense of mistaken identification, and the 

request was reasonable as disclosure would not jeopardize the 

[CI’]s safety[?]

3. [Whether t]he evidence was insufficient to adjudicate 

[Johnson] guilty of [c]riminal [c]onspiracy where the 

Commonwealth failed to prove that [Johnson] made an 

agreement with others to distribute narcotics[?]

Brief of Appellant, at 11-14.

Johnson first claims that the trial court erred by denying his motion to 

suppress. He argues that when police forcibly entered his home, in violation 

of the “knock and announce rule,” they violated his constitutional right to be 

free from unreasonable searches and seizures. Brief of Appellant, at 10.

In an appeal from the denial of a motion to suppress, our review is 

“limited to determining whether the record supports the suppression court’s 

factual findings and the legitimacy of the inferences and legal conclusions 

drawn from those findings.” Commonwealth v. Hall, 199 A.3d 954, 959 

(Pa. Super. 2018) (quotations and citations omitted).

In making this determination, we may only consider the evidence 

of the prosecution’s witnesses and so much of the defense as, 

fairly read in the context of the record as a whole, remains 

uncontradicted. When the factual findings of the suppression 

court are supported by the evidence, we may reverse only if there 

is an error in the legal conclusions drawn from those factual 

findings.

Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998).

Where, as here, 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 
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appellate court, whose duty it is to determine if the suppression 

court properly applied the law to the facts. Thus, the conclusions 

of law of the courts below are subject to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. Super. 2010).

Pennsylvania Rule of Criminal Procedure 207 provides that law 

enforcement officers are required to knock and announce their identity and 

purpose to any occupant of the premises and wait a reasonable period of time 

for a response before executing a search warrant, “unless exigent 

circumstances require the officer’s immediate forcible entry.” Pa.R.Crim.P. 

207(A)-(B). In Pennsylvania, we have recognized four exigent circumstances 

that constitute “exceptions to the requirements of the knock and announce 

rule.” Commonwealth v. Wagstaff, 911 A.2d 533, 536 (Pa. Super. 2006). 

These exceptions are: (1) the occupants remain silent after repeated 

knocking and identification; (2) the police are virtually certain that the 

occupants already know their purpose; (3) the police have reason to believe 

that an announcement prior to entry would imperil their safety; and (4), the 

police have reason to believe evidence is about to be destroyed. Id.; see 

also Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 2007) (“[I]n 

order to invoke an exception, police must only possess a reasonable suspicion 

that one of these grounds is present.”).

To determine whether suppression is appropriate based on a violation 

of the knock and announce rule, “police conduct must be examined in light of 

the Fourth Amendment, which mandates that police [act] reasonabl[y].” Id. 
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at 491. “Under Rule 207 (and criminal law in general), what is ‘reasonable’ is 

a case-by-case determination based upon the information available to the 

police.” Wagstaff, supra at 535. “An action is ‘reasonable’ under the Fourth 

Amendment, regardless of the individual officer’s state of mind, as long as the 

circumstances, viewed objectively, justify the action.” Commonwealth v. 

Coughlin, 199 A.3d 401, 410 (Pa. Super. 2018). The Commonwealth 

possesses the burden of establishing by a preponderance of the evidence that 

the search or seizure satisfied the mandates of Rule 207 and that the evidence 

is therefore admissible. Wagstaff, supra at 535. Finally, we note that:

There are no set rules as to the time an officer must wait before 

using force to enter a house; the answer will depend on the 

circumstances of each case. No case in this Commonwealth 

interpreting this rule has ever required officers to wait until the 

occupants destroy the evidence or flee and thus render a search 

unavailing or an arrest impossible.

Commonwealth v. Walker, 874 A.2d 667, 674 (Pa. Super. 2005).

Here, the Commonwealth admitted that the police did not knock and 

announce their identity and purpose before entering Johnson’s home by force, 

but contended that the entry was justified because the occupants knew they 

were coming and why, might have been armed and offered resistance, and 

because police had reason to believe that evidence would be destroyed. N.T. 

Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 22, 32, 43-47. At 

the suppression hearing, Officer Proctor testified that the raid team used force 

to enter Johnson’s home because they saw Rodison run from the window and 

sought to get inside the house before evidence was destroyed by the 
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occupants. Id. at 32. Johnson argues that the police lacked any exigent 

circumstance to justify forcibly entering his home without knocking, 

announcing their purpose and identity, and waiting a reasonable period of 

time. Brief of Appellant, at 13. Specifically, Johnson argues that Rodison’s 

flight from the window as police approached the home was insufficient to 

establish that narcotics, paraphernalia, or currency would be destroyed. Id.

At the hearing on Johnson’s motion to suppress, the trial court offered 

the following rationale for denying the motion:

[I]t is clear that by a preponderance of the evidence[—]probably 

more[—]that the police were justified in believing, obviously, that 

there were drugs in the location, not only because of the 

surveillance that happened from the prior six days, but there was 

actually an alleged drug sale to the CI involved in this case made 

on the day the search warrant was executed not too long 

beforehand. As pointed out, [Johnson,] who had been identified 

by the officer as participating in prior drug sales from that 

location[,] had just arrived moments before. The police were, as 

stated, dressed in raid gear, which has blue and yellow police all 

over them so it is quite clear who they were. There were seven 

of them. You usually don’t see seven police officers walking 

together on routine patrol. They approached the house trying to 

be covert, but [were] unsuccessful. A person previously 

identified as one of the conspirators involved[, Rodison,] is 

at the bay window, sees them, and runs away from the 

window. He does not run in the direction of the door, which 

is to the left of the window. He runs away from the 

window. I think under all these circumstances the police were 

justified; and [t]he [c]ourt is justified in finding that the people 

inside the premise[s] know the purpose when seven police decked 

out in raid gear are at the front door. I see no evidence in 

anything that is recovered or during the various transactions of 

any weapons, I do not think the safety issue alone would justify 

the exigent circumstances. . . . The running away from the 

window evidence [supports] not only that the occupants 

knew what was happening, but that [there was] a strong 
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possibility that the evidence could be destroyed. I am going 

to deny the motion.

Trial Court Opinion, 5/13/15, at 9-10 (emphasis added).

In Commonwealth v. Beard, 461 A.2d 790, 792 (Pa. 1983), the 

Pennsylvania Supreme Court explained that, 

[t]he fact that [the appellant] recognized the police and[,] upon 

doing so, fled into the residence is sufficient evidence that he knew 

the identity and purpose of the police. Thus, the police had valid 

grounds for being virtually certain that [the Appellant] had 

ascertained their purpose and would attempt to destroy the 

evidence of narcotics. In such circumstances, noncompliance with 

the knock and announce requirement is excused.

Id. at 792-93 (emphasis added); see also Commonwealth v. Dial, 285 

A.2d 125, 127 (Pa. 1971) (“when [officers] heard the sounds of running and 

the door was not opened, they were warranted in thinking that they were 

refused admittance and that an effort was underway to destroy evidence”); 

Commonwealth v. Dean, 693 A.3d 1360 (Pa. Super. 1997) (officers with 

specific, articulable reason to believe exigent circumstances exist are justified 

in departing from knock and announce rule).

Here, Rodison, who was previously identified as a drug dealer, and who 

sold drugs at the house just prior to the warrant’s execution, fled from the 

window and front door upon seeing the raid team approach.

8

 Rodison’s flight 

gave the raid team a specific, articulable basis for believing exigent 

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8

In fact, police apprehended Rodison (and the other coconspirators) on the 

second floor of the home where all of the contraband was located. N.T. 

Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13-14.
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circumstances existed to justify a knock and announce violation; specifically, 

the police were virtually certain that the occupants already knew their 

purpose, and they had reason to believe evidence was about to be destroyed. 

Beard, supra; Dean, supra; Dial, supra. Accordingly, the suppression 

court properly denied Johnson’s suppression motion.

Johnson also claims that the trial court erred by denying his motion to 

compel the disclosure of the CI. He contends that disclosure of the CI’s 

identity was material to the preparation of his defense and that his request 

for disclosure was reasonable in that the CI’s safety would not be jeopardized. 

Brief of Appellant, at 15-16.

“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 

discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super. 

2013). “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.” 

Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010); see also 

Pa.R.Crim.P. 573(B)(2)(a)(i). The Commonwealth enjoys a qualified privilege 

to withhold the identity of a confidential source; “only after the defendant 

shows that the identity of the confidential informant is material to the defense 

is the trial court required to exercise its discretion to determine whether the 
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information should be revealed by balancing relevant factors,[9] which are 

initially weighted toward the Commonwealth.” Commonwealth v. Watson, 

69 A.3d 605, 607-08 (Pa. Super. 2019), quoting Marsh, supra at 321-22.

Here, Johnson contends that he overcame the Commonwealth’s 

qualified privilege against disclosure with evidence establishing that disclosure 

was both material to his mistaken identity defense and reasonable. Brief of 

Appellant, at 15-16. Regarding the first prong, Johnson submits that he 

established a material need for disclosure because he denied his involvement 

in any drug sale and “testified that he looked like his cousin Ramel who also 

lived at the property.” Id. at 15. However, Johnson only testified that Ramel 

“looks like [him]”—having a “husky buil[d]” and “facial hair”—at trial, after 

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9

In striking the proper balance, the court must consider the following 

principles:

A further limitation on the applicability of the privilege arises from 

the fundamental requirements of fairness. Where the disclosure of 

an informer’s identity, or of the contents of his communication, is 

relevant and helpful to the defense of an accused, or is essential 

to a fair determination of a cause, the privilege must give way. In 

these situations[,] the trial court may require disclosure and, if 

the Government withholds the information, dismiss the action.

[N]o fixed rule with respect to disclosure is justifiable. The 

problem is one that calls for balancing the public interest in 

protecting the flow of information against the individual’s right to 

prepare his defense. Whether a proper balance renders 

nondisclosure erroneous must depend on the particular 

circumstances of each case, taking into consideration the crime 

charged, the possible defenses, the possible significance of the 

informer’s testimony, and other relevant factors.

Marsh, supra at 322.
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the court denied his motion to compel disclosure. See N.T. 

Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 76-77. In arguing 

the motion, Johnson simply averred that the CI would provide exculpatory 

information, but “failed to explain how the revelation of the CI’s identity would 

be material in preparing his defense” and “how the CI possessed relevant 

information.” Commonwealth v. Ellison, 213 A.3d 312, 318 (Pa. Super. 

2019). Accordingly, Johnson failed to make the threshold showing that the 

identity of the CI was material to the preparation of his defense, and the trial 

court did not err in denying his motion to compel disclosure. See id. (mere 

assertion that CI’s identity is material to defense imposes no duty on trial 

court to balance competing interests and determine if disclosure required).

Lastly, Johnson challenges the sufficiency of the evidence of his 

conviction for criminal conspiracy—PWID. Whether sufficient evidence exists 

to support the verdict is a question of law; our standard of review is de novo 

and our scope of review is plenary. Commonwealth v. Tejada, 107 A.3d 

788, 792 (Pa. Super. 2015). We review the evidence in the light most 

favorable to the Commonwealth as verdict winner to determine whether there 

is sufficient evidence to allow the trier of fact to find every element of a crime 

beyond a reasonable doubt. Id.

In applying the above test, we may not weigh the evidence and 

substitute our judgment for [that of] 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 
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fact-finder unless the evidence is so weak and inconclusive that[,] 

as a matter of law[,] no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain its 

burden of proving every element of the crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

[fact-finder,] while passing upon the credibility of the witnesses 

and the weight of the evidence produced, is free to believe all, 

part[,] or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).

A person commits the crime of PWID by knowingly creating, delivering, 

or possessing with intent to deliver a controlled substance or counterfeit 

controlled substance. 35 P.S. § 780-113(a)(30). To prove the crime of 

conspiracy, the Commonwealth must show a defendant entered into an 

agreement to commit or aid in an unlawful act with another person, that he 

and that person acted with shared criminal intent, and that an overt act was 

taken in furtherance of the conspiracy. Commonwealth v. Feliciano, 67 

A.3d 19, 25-26 (Pa. Super. 2013) (en banc); 18 Pa.C.S.A. § 903.

Johnson argues that the Commonwealth failed to prove beyond a 

reasonable doubt that he made an agreement with others to distribute 

narcotics. Brief of Appellant, at 18. Specifically, he submits that, “[a]t most, 

the evidence showed that multiple individuals sold their respective narcotics 

from the same house[;]” Johnson did not exchange narcotics or money with 

another individual, and none of the packets recovered from his bedroom 

matched the packets in the other bedrooms. Id.
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“An explicit or formal agreement to commit crimes can seldom, if ever, 

be proved and it need not be, for proof of a criminal partnership is almost 

invariably extracted from the circumstances that attend its activities.” 

Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998). “The 

conspiratorial agreement can be inferred from a variety of circumstances 

including, but not limited to, the relation between the parties, knowledge of 

and participation in the crime, and the circumstances and conduct of the

parties surrounding the criminal episode.” Feliciano, supra quoting 

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). These 

factors “may create a web of evidence linking the accused to the alleged 

conspiracy beyond a reasonable doubt.” Devine, supra at 1147. In 

Feliciano, supra, we concluded that there was sufficient evidence to sustain 

the appellant’s conviction for conspiracy to commit PWID where a woman 

exited the defendant’s house and told an undercover agent, “He’s bagging it 

up. He will be out,” before the defendant exited the house and handed the 

agent five bags of cocaine. Id. at 26. We rejected the appellant’s argument 

that the Commonwealth failed to prove the existence of any agreement

between the appellant and the woman, explaining that, because the appellant 

acted in accordance with her statement to the agent, it was “sufficiently 

evident that [a]ppellant entered into an agreement with [her] with the shared 

criminal intent of selling cocaine, and he committed the necessary overt act 

by selling the drug.” Id. Thus, here, it was not necessary for the 
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Commonwealth to prove that Johnson made an express agreement with the 

others to distribute narcotics or share in the profits. Johnson, supra; see 

also Feliciano, supra.

The evidence, viewed in the light most favorable to the Commonwealth 

as verdict winner, shows that four individuals including Johnson were engaged 

in a drug sales operation together and exercised joint possession and control 

over the premises as well as the drugs and packaging materials inside. In 

addition to the drug sales Johnson made to the CI over several days, Johnson 

was present when an unidentified male sold marijuana to the CI from the 

premises on November 1, 2017. Furthermore, during the week the warrant 

was executed, both Johnson and Rodison sold crack cocaine to the CI, but all 

of the crack cocaine recovered from the house was kept outside of Johnson’s 

bedroom; this belies his argument that the individuals maintained their own

“respective narcotics.” Brief of Appellant, at 18. We agree with the trial 

court’s conclusion that “[a]ny jury could have reasonably inferred that all of 

them were aiding each other in [their] endeavors in a tacit conspiratorial 

agreement based on the circumstantial evidence.” Trial Court Opinion, 

5/13/18, at 18. In sum, the evidence is sufficient to sustain Johnson’s 

conviction for conspiracy to commit PWID.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/30/20