J-S59037-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RAY PALESTINI

No. 297 EDA 2017

Appeal from the Order December 20, 2016

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

No(s): CP-51-CR-0001581-2016

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 18, 2017

The Commonwealth appeals from the order granting the motion of 

Appellee, Ray Palestini, to suppress physical evidence arising from the search 

of Appellee’s residence on the basis of an anticipatory search warrant. The 

Commonwealth argues that probable cause existed to issue the warrant 

because law enforcement personnel repeatedly observed Appellee’s 

accomplice purchase bags of pills from two pharmacies and transport them to 

Appellee’s residence. We reverse and remand for further proceedings. 

On September 15, 2015, police officers obtained an anticipatory search 

warrant to search Appellee’s residence for controlled substances, specifically, 

methadone, oxycodone and xanax. On September 17, 2015, the officers 

 

* Former Justice specially assigned to the Superior Court.
J-S59037-17

- 2 -

executed the warrant at Appellee’s residence and seized 599 methadone pills, 

302 oxycodone pills, 70 lorazepam pills, and $17,000.00 in cash. Appellee 

was arrested and charged with possession with intent to deliver controlled 

substances1 and other drug-related offenses. Appellee filed a motion to 

suppress asserting that the search warrant failed to provide probable cause to 

search his residence. Appellee also moved to suppress statements that he 

made to police officers following his arrest.

The affidavit of probable cause underlying the anticipatory search 

warrant provides:

I. Affiant’s Background

Your affiant is currently a Narcotics Agent with the 

Commonwealth of Pennsylvania, Office of Attorney General, 

Bureau of Narcotics Investigation and Drug Control, 

Philadelphia Office, Region II. Your Affiant has been 

employed by the Office of Attorney General since September 

1990.

Your Affiant has prepared and/or assisted in the execution 

of over 400 search and/or arrest warrants as an undercover 

Criminal Investigator. During those assignments, your 

Affiant received extensive narcotics training. Your Affiant

has attended numerous training sessions and seminars in 

the area of criminal investigations, including but not limited 

to, a one hundred and sixty (160) hour Advanced Criminal 

Investigations School, Pa State Police Academy. Your 

Affiant has attended the 45-hour “Top Gun” Narcotics 

Investigators School, and the BNIDC Agent’s Academy. 

Your Affiant is empowered by law to conduct investigations 

of, and make arrests for, offenses involving violations of the 

Controlled Substance, Drug Device and Cosmetic Act of April 

 

1 75 P.S. § 780-113(a)(30).
J-S59037-17

- 3 -

14, 1972, and Corrupt Organization and Criminal Conspiracy 

under the Pennsylvania Crimes Code.

Your Affiant is an “investigative or law enforcement officer”

within the meaning of Section 5702 of the Pennsylvania 

Wiretapping and Electronic Surveillance Control Act and, in 

such capacity, your Affiant has successfully completed the 

Pennsylvania State Police “A” certification course required 

to monitor and utilize electronic surveillance equipment. 

Your Affiant’s certification number is A-1409.

Your Affiant’s duties have included arrests, surveillance, 

undercover purchases of controlled substances, the 

interviewing and use of informants and the debriefing and 

interviewing of drug law violators. As a result of your 

Affiant’s training and experience, your Affiant is familiar with 

the manner in which drugs are sold, priced, and the manner 

in which drugs are processed and packaged. Your Affiant is 

also familiar with drug trafficking patterns employed by 

persons involved in the distribution of illegal drugs.

II. Probable Cause

On July 15, 2015 your Affiant Narcotics Agent Vincent 

Jackson received information from a confidential source

[(“C/S”)] that the defendant Rosemary Divincenzo was 

picking up a large amount of controlled substance pills. The 

C/S specifically stated the defendant would be receiving a 

large shipment of methadone pills from a pharmacy in 

Delaware County Pa. The defendant was previously 

arrested for distributing methadone, oxycodone and Xanax 

pills in 2011 by Philadelphia Pennsylvania police 

department. Based on the defendant’s prior arrest record, 

your Affiant decided to perform a physical surveillance on 

the defendant to determine if she was engaged in the illegal 

distribution of controlled substances. 

On July 20, 2015 surveillance was established at the 

pharmacy the defendant used to fill her prescriptions for 

controlled substances, at approximately 2:30 p.m. the 

defendant was observed arriving at [redacted2] pharmacy. 

 

2 The redactions were in the copy of the affidavit of probable cause contained 

in the certified record. It is unclear when the redactions were made. 
J-S59037-17

- 4 -

The pharmacy is located at [redacted], Pa. She was 

observed going inside. Your Affiant observed Rosemary 

Divincenzo accept a large white bag with pill bottles inside 

of it, while he was in the pharmacy with her.

Divincenzo was followed by Law Enforcement personnel as 

she exited the pharmacy at approximately 2:51 p.m. She 

proceeded to get onto I95 North towards Philadelphia. 

Divincenzo was eventually followed to 2502 S. 10th Street, 

where she was observed entering the property. Divincenzo 

had the white bag containing pill bottles in her hand; this 

was at approximately 3:23 p.m.

Rosemary Divincenzo exited 2502 S. 10th Street at 

approximately 3:43 p.m. She did not have the white bag in 

her hand. She got into her vehicle and left the area. A few 

minutes later a white male identified as Raymond Palestini 

was observed by members of the DEA Philadelphia Tactical 

Diversion Squad exit 2502 S. 10th Street. He proceeded to 

engage in what appeared to be drug transactions with 

several individuals.

On August 18, 2015 your Affiant received information once 

again from the same confidential source that Rosemary 

Divincenzo was receiving a large amount of schedule II

Controlled Substance pills, specifically methadone, 

oxycodone and xanax. She was going to the same 

pharmacy as before, [redacted] pharmacy. Your Affiant

observed Divincenzo go inside of the pharmacy at 2:05 

p.m., [and] she was observed by your Affiant leaving the 

pharmacy at 2:20 p.m., with a large white bag containing 

pill bottles. Rosemary Divincenzo made one stop at a 

Dunkin Doughnut shop, two doors away from the pharmacy. 

She met with no one and left a few minutes later. She was 

observed by your affiant the whole time. She then drove to 

I95 North, towards Philadelphia. Divincenzo was followed by 

your Affiant to 2502 S. 10th Street, once again. She was 

observed by Group Supervisor Minh Nguyen of DEA 

Philadelphia as she entered the property with the white pill 

bag at approximately 2:43 p.m. Prior to Divincenzo arriving 

Raymond Palestini was observed engaging in what appeared 

to be several drug transactions. At approximately 3:08 

p.m., Divincenzo was observed leaving the property without 
J-S59037-17

- 5 -

the white bag with the pills inside. Surveillance was 

terminated at 4:00 p.m.

On September 15, 2015 your Affiant received information 

from the same confidential source as previously, that 

Rosemary Divincenzo was once again picking up 1200 

methadone pills from [redacted] pharmacy located at 1154 

Baltimore Ave, Springfield Pennsylvania at approximately 

1:00 p.m.

On September 15, 2015 it is anticipated that Rosemary 

Divincenzo is going to deliver the 1200 methadone pills to 

Raymond Palestini at 2502 S. 10th Street, as she has 

previously done on July 20, 2015 and August 18, 2015. 

Based on your Affiant’s training and experience, he believes 

the subject Rosemary Divincenzo and Raymond Palestini are 

conspirators in the illegal distribution of narcotics. Your 

Affiant expects to find supporting information and evidence 

of illegal drug distribution at 2502 S. 10th Street, 

Philadelphia Pennsylvania.

Based on the foregoing, your Affiant has probable cause to 

believe Rosemary Divincenzo will deliver approximately 

1200 methadone pills to 2502 S. 10th Street, Philadelphia 

Pennsylvania on September 15, 2015. Your Affiant is 

submitting an application for an Anticipatory Search and 

Seizure Warrant for 2502 S. 10th Street Philadelphia Pa. If 

approved this Warrant shall be Valid and Lawful for the 

residence listed above. The execution of this warrant shall 

be contingent upon Rosemary Divincenzo obtaining 

prescription drugs then immediately driving to and entering 

2502 S. 10th Street with a large white bag with pills inside 

and exiting without the bag.

III. Conclusion

Based on the above facts and circumstances, your affiant 

believe probable cause exists to believe that the residence 

of 2502 S. 10th Street, Philadelphia, PA is used to sell illegal 

narcotics. Your Affiant also knows through his education, 

knowledge and experience that individuals involved in the 

trafficking of controlled substances likely are in possession 

of weapons, drug paraphernalia used for the packing and 

transport of controlled substances, records and sums of U.S. 
J-S59037-17

- 6 -

currency. Your Affiant further knows that individuals 

involved in the trafficking of controlled substances secrete 

or hide controlled substances and these other items within 

a secure place, such as a vehicle or home to deter detection 

by law enforcement and/or other individuals 

In the event that Rosemary Divincenzo does not deliver the 

pills to 2502 S. 10th Street, this warrant will become null 

and void and will not be served. 

Affiant submits this Application for authorization of an 

Anticipatory Search and Seizure Warrant by this Honorable 

Court, for 2502 S. 10th, Philadelphia County, PA. 

R.R. 13a-18a.3

On November 28, 2016, the trial court granted Appellee’s motion to 

suppress all evidence arising from the search of his residence without ruling 

on Appellee’s motion to suppress his post-arrest statements. The 

Commonwealth filed a motion for reconsideration. On December 8, 2016, the 

trial court granted the motion, vacated the suppression order and scheduled 

the matter for a hearing. On December 20, 2016, following the hearing, the 

trial court reinstated its order granting Appellee’s motion to suppress all 

physical evidence.

The Commonwealth filed a timely appeal under Pa.R.A.P. 311(d) 

certifying that the suppression order terminated or substantially handicapped 

its prosecution. Both the Commonwealth and the trial court complied with 

Pa.R.A.P. 1925.

 

3 For the parties’ convenience, we cite to the Commonwealth’s reproduced 

record whenever possible. 
J-S59037-17

- 7 -

The Commonwealth raises a single issue in this appeal:

Did the [trial] court err by suppressing almost one thousand 

narcotics pills and seventeen thousand dollars in cash seized 

pursuant to a search warrant where an experienced 

investigator repeatedly observed a suspect receive bags of 

pill bottles which were transported to a drug sales location?

Commonwealth’s Brief at 3.

The Commonwealth claims that the trial court erred in failing to afford 

adequate deference to the magistrate’s determination that probable cause 

existed. Id. at 8-9. According to the Commonwealth, the affiant, an 

experienced officer in drug trafficking, received information from a C/S that 

that Divincenzo was picking up large quantities of controlled substances from 

a pharmacy on two occasions. Id. The affiant then corroborated the C/S’s 

information by observing Divincenzo picking up large bags of pills from the 

pharmacies. Id. Further, investigators followed Divincenzo to the residence 

to be searched, and on both occasions, Divincenzo entered the residence with 

a white pharmacy bag and left the residence without the bag. Id. Appellee 

was seen exiting the residence and conducting what appeared to be narcotics 

transactions. Id. The Commonwealth thus asserts that the trial court’s focus 

on the reliability of the C/S was misplaced, because the affiant corroborated

the C/S’s report, and the affiant’s own observations provided a substantial 

basis for finding probable cause. Id. at 12-13. Additionally, the 

Commonwealth claims that the trial court erred in suggesting that Appellee’s 

oral statements should also be suppressed because that issue was not 
J-S59037-17

- 8 -

encompassed in its order suppressing the physical evidence. Id. at 13. 

Although the affidavit of probable cause fails to establish the C/S’s reliability, 

we conclude that there was sufficient independent corroboration of the C/S’s 

tips by the investigating officers to justify the issuance of the warrant. 

Our standard of review is well settled. 

When the Commonwealth appeals from a suppression order, 

we follow a clearly defined standard of review and consider 

only the evidence from the defendant’s witnesses together 

with the evidence of the prosecution that, when read in the 

context of the entire record, remains uncontradicted. The 

suppression court’s findings of fact bind an appellate court 

if the record supports those findings. The suppression 

court’s conclusions of law, however, are not binding on an 

appellate court, whose duty is to determine if the 

suppression court properly applied the law to the facts. Our 

standard of review is restricted to establishing whether the 

record supports the suppression court’s factual findings; 

however, we maintain de novo review over the suppression 

court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016) (citations 

and quotation marks omitted).

In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme 

Court adopted a “totality-of-the-circumstances” standard for evaluating 

search warrants, which “permits a balanced assessment of the relative 

weights of all the various indicia of reliability and unreliability attending an 

informant’s tip.” Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011) 

(discussing Gates). Our Supreme Court adopted Gates as the applicable law 

under the Pennsylvania Constitution in Commonwealth v. Gray, 503 A.2d 

921 (Pa. 1985). Under the totality-of-the-circumstances test, facts 
J-S59037-17

- 9 -

insufficient to support probable cause if considered separately may add up to 

probable cause in combination, see Commonwealth v. Dennis, 612 A.2d 

1014, 1016-17 (Pa. Super. 1992) (citations omitted), particularly when 

“viewed through the eyes of a prudent, reasonable, cautious police officer

guided by experience and training.” Commonwealth v. Wells, 916 A.2d 

1192, 1195 (Pa. Super. 2007) (citations omitted). 

The standard for assessing search warrants that rest upon information 

received from a confidential informant

depends upon the informant’s reliability and basis of 

knowledge viewed in a common sense, non-technical 

manner. Commonwealth v. Luv, [] 735 A.2d 87, 90 ([Pa.] 

1999). Thus, an informant’s tip may constitute probable 

cause where police independently corroborate the tip, or

where the informant has provided accurate information of 

criminal activity in the past, or where the informant himself 

participated in the criminal activity. Id. The corroboration 

by police of significant details disclosed by the informant in 

the affidavit of probable cause meets the Gates threshold. 

Commonwealth v. Sanchez, 907 A.2d 477, 488 ([Pa.] 

2006) (quoting United States v. Tuttle, 200 F.3d 892, 

894 (6th Cir. 2000)) (“[I]nformation received from an 

informant whose reliability is not established may be 

sufficient to create probable cause where there is some 

independent corroboration by police of the informant’s 

information.”).

Clark, 28 A.3d at 1288.

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.” United States v. Grubbs, 547 

U.S. 90, 94 (2006) (citation omitted). “Most anticipatory warrants subject 
J-S59037-17

- 10 -

their execution to some condition precedent other than the mere passage of 

time—a so-called ‘triggering condition.’” Id. 

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.” 

In judging whether particular averments establish probable 

cause, we are mindful of the principle that:

Probable cause . . . is a practical, non-technical 

conception requiring a consideration of the totality of the 

circumstances . . . The task of the issuing magistrate is 

simply to make a practical, commonsense decision 

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.

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

footnotes omitted). “[T]he duty of a reviewing court is simply to ensure that 

the magistrate had a substantial basis . . . for conclud[ing] that probable cause 

existed.” Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)

(citation and quotation marks omitted). 

In this case, although the affidavit did not establish that the C/S was 

reliable, it still managed to furnish probable cause because the investigating 

officers sufficiently corroborated the C/S’s tips. Thus, the issuing authority 
J-S59037-17

- 11 -

had probable cause to issue the anticipatory warrant to search for controlled 

substances in Appellee’s residence.

We first review the information that the C/S provided to the police. The 

affidavit states that on three separate dates, the C/S advised that Divincenzo 

would be receiving substantial shipments of controlled substances at the 

pharmacies. R.R. 14a-16a. On July 15, 2015, the affidavit states, the C/S 

advised that Divincenzo was picking up a “large shipment” of methadone pills 

from a pharmacy in Delaware County. R.R. 14a. The affidavit does not state 

how or when the C/S learned this information. Neither does the affidavit state 

that the C/S identified the pharmacy or when Divincenzo would pick up the 

shipment. Similarly, the affidavit states that on August 18, 2015, the C/S 

advised that Divincenzo “going to the same pharmacy as before” to receive a 

“large amount” of “methadone, oxycodone and Xanax.” Id. at 15a. Once 

again, the affiant fails to describe how or when the C/S learned this 

information. Neither does the affidavit state that the C/S identified when 

Divincenzo would receive the shipment. Finally, the affidavit states that on 

September 15, 2015, the C/S advised that Divincenzo was picking up 1200 

methadone pills at 1:00 p.m. from a pharmacy at 1154 Baltimore Avenue in 

Springfield, Pennsylvania. Id. at 16a. Yet again, the affiant fails to describe 

how or when the C/S learned this information. The affidavit does not indicate 

that the C/S provided information in the past which resulted in arrests or 

convictions. 
J-S59037-17

- 12 -

Had this been the only information in the affidavit, it would have been 

proper for the trial court to grant Appellee’s motion to suppress. Here, 

however, the warrant includes additional information that police officers 

obtained through their own independent investigation. The affidavit states 

that on July 18, 2015, the affiant watched Divincenzo “at the pharmacy [she] 

used to fill her prescriptions for controlled substances . . . Your affiant 

observed [her] accept a large white bag with pill bottles inside of it, while he 

was in the pharmacy with her.” Id. at 15a. Law enforcement personnel 

followed her to Appellee’s residence in Philadelphia, where she entered with 

the bag at 3:23 p.m. and left at 3:43 without the bag. Id. Appellee then left 

the residence and “engage[d] in what appeared to be drug transactions with 

several individuals.” R.R. at 15a. Similarly, the affidavit states that on August 

18, 2015, the affiant “observed [Divincenzo] go inside the pharmacy at 2:05 

p.m. [and leave] at 2:20 p.m., with a large white bag containing pill bottles.” 

Id. at 15a-16a. The affiant followed her to Appellee’s residence, where 

another law enforcement officer observed her enter the residence with the 

bag at 2:43 p.m. and leave at 3:08 p.m. without the bag. Id. at 16a. Finally, 

as noted above, the affidavit states that on September 15, 2015, the C/S 

informed the affiant that Divincenzo was picking up 1200 methadone pills at 

approximately 1:00 p.m. from a pharmacy in Springfield. Id.

The trial court concluded that this information was insufficient:

[The affiant] doesn’t mention where he got those tidbits of 

information, how he or the source knew she was going to 
J-S59037-17

- 13 -

be picking up “approximately 1200 methadone pills,” or in 

any other way explain how he arrived at the conclusion that 

it was “her” pharmacy and was where she got “her” 

prescriptions filled, whether from the source or anyone else, 

even having noted himself that on the anticipated third 

occasion she was going to go to a different pharmacy. If 

the mere facts that a person went to a pharmacy and picked 

up drugs were the only bases needed to support the 

astronomical leap to the conclusion that criminal activity

was afoot[,] the police would be entitled to search every 

residence in the country at any time they felt like it if a 

resident of, or visitor to it, was seen buying something at a 

pharmacy and bringing it to his or anyone else’s home. That 

the observed activities were illegal are sheer conclusions 

based upon the observation of what by the agent’s own 

description only appeared to be completely normal and legal 

activities: an individual going to a drug store and getting 

monthly prescription refills.

Trial Ct. Op., 3/13/17, at 11. 

We disagree with this analysis. On one date in July 2015 and another 

in August 2015, the C/S informed the police that DiVincenzo was purchasing 

a large amount of controlled substance pills at a Delaware County pharmacy. 

The police corroborated both tips. On both dates, they observed DiVincenzo 

purchasing large bags of prescription drugs at Delaware County pharmacies, 

driving to Appellee’s residence, entering the residence and leaving without the 

bags less than one half hour later. On the first date, the police observed 

Appellee engage in what appeared to be hand-to-hand drug sales after 

DiVincenzo’s departure. On the second date, the police observed Appellee 

engage in what appeared to be drug sales prior to DiVincenzo’s arrival. On 

September 15, 2015, one month later, the C/S told the affiant that DiVincenzo 

would deliver 1200 methadone pills to Appellee’s residence. Collectively, this 
J-S59037-17

- 14 -

information furnished probable cause to anticipate that DiVincenzo and 

Appellee were conspiring to sell narcotics illegally, and that DiVincenzo would 

purchase a significant number of methadone pills and deliver them to 

Appellee’s residence that day for illegal distribution.4 

Order reversed. Case remanded for proceedings in accordance with this 

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/18/2017

 

4 As a further precaution, the affidavit stated that the police would not execute 

the warrant unless DiVincenzo obtained prescription drugs that day, drove 

immediately to Appellee’s residence, entered the residence with a bag and left 

without the bag. Appellee does not dispute that these events actually took 

place.