J

- A16030

- 22

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LAMONT JOHNSON

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1838 EDA 2021

Appeal from the Judgment of Sentence Entered January 23, 2017

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

No(s): CP

- 23

- CR

- 0008104

- 2014

BEFORE: McLAUGHLIN, J., McCAFFERY, J., and PELLEGRINI, J. *

MEMORANDUM BY McCAFFERY, J.: FILED FEBR UARY 27, 2023

Lamont Johnson (Appellant) appeals nunc pro tunc from the judgment

of sentence entered in the Delaware County Court of Common Pleas, following

his jury conviction s of possession of a controlled substance with intent to

deliver (PWID) and possession of drug paraphernalia

. 1 Appellant advances

two arguments : (1) the trial court erred in denying his motion to suppress

because the search warrant was not supported by proba ble cause , and in turn,

his confession was not voluntary ; and (2) the trial court erred in denying his

request for disclosure of the confidential informant who provided information

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780

- 113(a)(30) & (32).J

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- 2

-

that was included in the affidavit of probable cause that accompanied the

s earch warrant. For the reasons below, we affirm the judgment of sentence.

The relevant facts and procedural history underlying this appeal are as

follows. Patrolman Timothy Garron (Officer Garron) , of the City of Chester

Police Department, conducted a cr iminal investigation, which included three

controlled narcotics buys by a confidential informant (CI)

, and applied for an

anticipatory search warrant on December 4, 2014

, of Appellant’s residence

located at 909 West 7th Street, Chester, Pennsylvania , and his vehicle bear ing

a Pennsylvania license plate with the following identification, “JST

- 8 6 48.”

Application for Search Warrant and Authorization (Search Warrant), 12/4/14,

at 2, 4

- 5, 8

. 2 A magisterial distric t judge issued the search warrant on

December 4, 2014. Office r Garron executed the search warrant on December

5, 2014. After police officers entered the home, they found Appellant in the

front bedroom on the second floor

. N.T., 8/11/15, at 33. They placed him in

handcuffs and gave him Miranda 3 warnings before they conducted a search

of the home. Id. at 33

- 34. Police seized a pillowcase, which included (1) a

_________________ __________ ______ ____ _______

2 Officer Garron averred that at the time of the application, he had been a full

time police officer with the Chester Police Department for over six years.

Search Warrant at 2

. He stated that for the past 21 months, he was assigned

to the Narcotics, Vice and Intelligence Unit, and that for the past 20 months,

he was a sworn member of the Criminal Investigation Division, Drug Task

Force for the Office of the District Attorney of Delaware County. See id.

3 Miranda v. Arizona , 384 U.S. 436 (1966).J

- A16030

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- 3

-

clear plastic bag with five kn otted plastic bags, containing 51.17 grams of

cocaine; (2) another plastic bag contain ing 43 heat sealed orange plastic zip

lock bags contained 10.19 grams of cocaine; (3) two blue plastic bag s

contain ing 1.02 grams of cocaine; and (4) one knotted clear plastic bag

containing nine blue plastic zip lock bags which contained five grams of

cocaine. See N.T., 11/30/16, at 64

- 66

. 4

Police Officer Mark Barag of the City of Chester Police Department

assisted in the execution of the search wa rrant, and interviewed Appellant a t

police headquarters. Officer Barag provided Appellant with Miranda warnings

prior to questioning him , and gave him a waiver form . N.T., 8/11/15, at 53

,

56

. Appellant reviewed the form and signed it. Id. at 53

- 59. As evidenced

by the form, Appellant admitted that narcotics in the pillowcase were his, that

he purchased the drugs in North Philadelphia, that it was his intention to sell

the drugs and “get high

, ” and that he took full responsibility for all recovered

na rcotics and drug paraphernalia. N.T., 11/30/16, at 216

- 18 . Appellant also

indicated that he was not coerced or forced to say anything during the

interview. Id. at 218

. Thereafter, Appellant was arrested and charged with

numerous violations of the Contr olled Substances Act, inc luding PWID.

_________________ __________ ______ ____ _______

4 Base d on the packaging and weight of the cocaine seized, this amount ed to

between $6,000.00 to $7,000.00

. See N.T., 11/30/16, at 239

- 40

.J

- A16030

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- 4

-

On May 20, 2015, Appellant filed a n om nibus pretrial motion , seeking

suppression of any statements or physical evidence recovered as a result of

the search warrant on the basis that the officers lacked probable cause

, insofar

as there w ere purported defects in the warrant

. 5 The court held a hearing on

August 11, 2015

, regarding the matter. On March 1 6, 2016, Appellant filed

an amended omnibus pretrial motion

, which concerned a motion for disclosure

of information regarding the confidential informant. The court held another

hearing on April 12, 2016. On June 3, 2016, the court denied both motions.

The matter proceeded to a jury trial, which began on November 29,

2016. On December 1, 2016, the jury convicted Appellant of PWID and

possession of drug paraphernalia. On January 23, 2017, the court sentenced

Appellant a term of 40 to 14 0 months’ incarceration fo r the PWID conviction

,

followed by five years of probation

, and a concurrent term of six months to 12

months’ incarceration for the possession of drug paraphernalia offense.

Appellant filed a pro se notice of appeal on February 2 7, 2017.

On April 8, 2019, this Court remanded the matter for the trial court to

hold an evidentiary hearing to determine whether Appellant timely delivered

his pro se notice of appeal to prison authorities

. See Commonwealth v.

Johnson

, 779 EDA 2017 (Pa. Super. Apr. 8, 2019) (unpub. memo.). On May

_________________ __________ ______ ____ _______

5 The May 2015 motion was not included in the certified record. The contents

of the motion were taken from defense counsel’s statements at the

suppression hearing. See N.T., 8/11/15, at 3

- 4.J

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- 5

-

23, 2019, the court held a hearing , but the matter was continued until July

22, 2019, “for Appellant t o bring a properly executed cash slip or other

reasonably verifiable evidence of the date h e deposited his pro se filing of his

notice of appeal with the prison authorities.” Trial Ct. Op., 12/16/21, at 3. At

the time of the July 22nd hearing, Appellant did not produce proof of the

deposit. On September 10, 2019, this Court quashed Appellant’ s appeal. See

Commonwealth v. Johnson , 779 EDA 2017 (Pa. Super. Sep. 10, 2019)

(unpub. memo.).

On April 8, 2020, Appellant filed a pro se petition for post

- conviction

relief pursuant to the Post

- Conviction Relief Act (PCRA). 6 Counsel was

appointed, who then filed an amended PCRA petition on May 28, 2020. On

August 17, 2021, the trial court entered an order that included a stipulation

by both parties averring that “ trial counsel provided ineffective assistance

when he failed to file a time ly notice of appeal when timely requested to do

so by petitioner, and, as a result, [Appellant]’s direct appeal to the

Pennsylvania Superior Court was quashed. ” Order of the Court, 8/17/21 , at

1 (unpaginated) . The court stated that “[t]rial counsel had n o reasonable

basis for failing to file the requested notice of appeal and [Appellant] was

prejudiced as a result. . . .” Id. Therefore, the court ordered that his direct

_________________ __________ ______ ____ _______

6 42 Pa.C.S. §§ 9541

- 9546.J

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- 6

-

appeal rights be reinstated nunc pro tunc

. Id. Thereafter, new counsel was

appoint ed, who filed a notice of appeal

.

Appellant raises the following issues on appeal:

1. Whether the Honorable Trial Court erred as a matter of law and

abused its discretion, and d enied [Appellant] rights guaranteed by

the Fourth, Fifth, Sixth and Fourteenth Amendments to the United

States Constitution and Article 1 Section 8 of the Pennsylvania

Constitution, in denying [Appellant]’s pre

- trial motion to suppress

the fruits of the se arch of his home and the resulting incriminating

statement, as the warrant issued for the residence fails to set out

probable cause to believe that contraband would be found within

the residence and the subsequent incriminating statement of

[Appellant] was the product of the unlawful search?

2. Whether the Honorable Trial Court erred as a matter of law and

abused its discretion, and denied [Appellant] rights guaranteed by

the Fourth, Fifth, Sixth and Fourteenth Amendment s to the United

States Constitution and Article 1 Section 8 of the Pennsylvania

Constitution, in denying [Appellant]’s pre

- trial motion for

disclosure of the confidential informant who provided information

included in the Affidavit of Probable Cause accompanying the

search warrant, where the pre

- trial request for disclosure of the

informant was material to his defense, was reasonable and in the

interest of justice, and where the Commonwealth failed to

establish that the safety of the informant would be compro mised

by disclosure?

Appellant’s Brief at 4

- 5

.

Appellant first complains that the trial court erred and abused its

discretion by denying his motion to suppress because “ the search warrant

resulting in the seizure of illegal drugs, Appellant[’]s arrest and subsequent

confession was not ba sed on probable cause. ” See Appellant’s Brief at 19.

He asserts the warrant was not based on probable cause due to the CI’s

lack of reliability, stating :J

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- 7

-

According to the affidavit, Officer Garron received information

from the informant that a male known as “L” was selling drugs

from the residence at 909 W. 7th Street in Chester. After

performing some internet

- based searches, [Officer] Garron

connected Appellant

. . . with the residence. The information

supplied by the informant, as corroborated by [Officer] Garron, so

far fails to provide probable cause, as corroboration of readily

obtainable facts does not provide probable cause.

. . . The

informant is not shown to be reliable simply because police

verified Appellant’s address as given by the inf ormant. In

addition, although the Affidavit states that the informant provided

information that led to three arrests, information leading to

arrests only does not establish reliability because there is no

showing that the information previously provided, was proven to

be true. The affidavit fails to include any other facts relating to

the case or cases in which the informant provided information; for

instance, the affidavit does not indicate the name of the persons

arrested, the type of information provid ed by the informant or

whether the case or cases got past the preliminary hearing; the

affidavit does not specify the type of information given in the

previous cases or whether the informant participated in the

criminal activity.

. . .

Appellant’s Brief at 21

- 22 (citations omitted)

. Furthermore

, he argues: “Nor

does the fact that the informant told police he observed cocaine in the

residence

. . . amount to a declaration against penal interest [.] ” Id. at 23

(citation omitted)

. Appellant also claims :

[T] he Affidavit does not establish a basis for the informant to state

that “L” is selling drugs from the residence, nor is there a time

frame as to when the informant saw the drugs inside the house or

as to when the person known as “ L” was actually selling illegal

drugs from the house [.] The Affidavit states that the informant

made states against his penal interest[, but t]he actual

statements, or even the general nature of the statements, do not

appear in the affidavit. The affidavit does not indicate whether

those statements were made with reference to this case and

cannot be said to have been incriminating for the informant. One

cannot ascertain from the face of the affidavit, whether the

statements were made to curry favo r from law enforcement, toJ

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- 8

-

minimize culpability, to retaliate against another or given for any

other such self

- serving reason.

Id. at 23

- 24 (citation omitted). Appellant maintains that the determination

“that the drugs were purchased from within the residence, therefore, is based

entirely

, not on police observation of the informant’s activities, but, instead

on acceptance of the informant’s credibility.” Id. at 25.

Appellant also suggests that since his arrest was purportedly unlawful,

his statements to police should be suppressed as well. See Appellant’s Brief

at 25. He states that the “Pennsylvania Supreme Court historically has not

found a confession coming after an illegal arrest to have been freed from the

taint of the illegal arrest simply because the incriminating statement was

preceded by Miranda warnings[.]” Id. at 28 (citations omitted)

. Appellant

concludes, “Because [he] was arrested without probable cause, and as a result

of [his] confession having not been purged of the illegal arrest, the statements

made by [him] to police should have been suppressed.” Id.

When reviewing suppression decisions, our standard of review is limited.

We review trial court suppression orders to determine whether the

factual findings are supported by the record and whether the legal

conclusions drawn from those facts are correct. We are bound by

the suppression court’s factual findings so long as they a re

supported by the record. In reviewing an appeal by the

Commonwealth of a suppression order, we may consider only the

evidence from the [defendant’s] witnesses along with the

Commonwealth’s evidence which remains uncontroverted. Our

scope of review of suppression court factual findings is limited to

the suppression hearing record. We, however, are not bound by

a suppression court’s conclusions of law; rather, when reviewing

questions of law, our standard of review is de novo and our scope

of review is plenary.J

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- 9

-

Commonwealth v. Barr

, 266 A.3d 25, 39 (Pa. 2021) (citations & quotations

marks omitted). “ It is within the suppression court ’ s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony. ” Commonwealth v. Gallagher

, 896 A.2d 583, 585 (Pa.

Super. 2006) (citation omitted).

As Appellant’s argument pertains to the validity of the search warrant,

we are guided by the following :

The Fourth Amendment to the United States Constitutio n

commands that “ [t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or affirmation

, and particularly describing the place to be searched, and the

persons or things to be seized. ” U.S. CONST. amend IV.

Similarly, Article I, Section 8 of the Pennsylvania Constitution

provides that “ [t]he people shall be secure in their persons,

houses, papers and possessions from unreasonable searches and

seizures, and no warrant to search any place or to seize any

perso n 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. ” P A. C ONST. art. I, § 8.

A search warrant may issue only upon a demonstration of

probable caus e by an affiant. See generally Commonwealth v.

Gary

, 91 A.3d 102, 107 (Pa. 2014). The existence of probable

cause is measured by examining the totality of the circumstances.

Illinois v. Gates

, 462 U.S. 213, 238 (1983). “ Probable cause

exists where the facts and circumstances within the affiant ’ s

knowledge and of which he [or she] has reasonably trustworthy

information are sufficient in and of themselves to warrant a

[person] of reasonable caution in the belief that a search should

be conducted. ” Co mmonwealth v. Johnson

, 42 A.3d 1017,

1031 (Pa. 2012) (internal quotation marks and citation omitted).

A magisterial district judge, when deciding whether to issue a

search warrant, must “ make a practical, common

- sense decision

whether, given all of the ci rcumstances set forth in the affidavit

.J

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-

. . including the veracity and basis of knowledge of persons

supplying hearsay information, there is a fair probability that

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

place. ” Id. (citation omi tted). Conversely, “ [a] court reviewing a

search warrant determines only if a substantial basis existed for

the magistrate to find probable cause. ” Id. (citation omitted). We

also note that there is a strict particularity requirement in Article

I, Secti on 8 of the Pennsylvania Constitution that “ a warrant must

describe the items as specifically as is reasonably possible. ”

Commonwealth v. Grossman

, 555 A.2d 896, 899 (Pa. 1989);

see also Pa.R.Crim.P. 205(2) (requiring all search warrants to

“ identify specifically the property to be seized ” ); id. at 205(3)

(requiring all search warrants to “ name or describe with

particularity the person or place to be searched ” ).

Commonwealth v. Jacoby

, 17 0 A.3d 1065, 1081

- 82 (Pa. 2017)

.

Moreover, “a determination of probable cause based upon information

received from a confidential informant depends upon the informant ’ s reliability

and basis of knowledge viewed in a common sense, non

- technical manner. ”

Commonwealth v. Clark , 28 A.3d 1284, 1288 (Pa. 2011). “ [ A ] n informant ’ s

tip may constitute probable cause where police independently corroborate the

tip, or where the informant has provided accurate information of criminal

activity in the past, or where the informant himself participated in the criminal

activity. ” Id. (emphasis in original). “ [ U ] nder the totality

- of

- the

circumstances approach, there is no talismanic recitation of a particular phrase

with respect to ‘ reliability ’ or ‘ basis of knowledge ’ that will either be required

or will suffice to conclusively establish, or conclusively disaffirm, the existence

of probable cause. ” Id. at 1292. See also Commonwealth v. Luv

, 735

A.2d 87 (Pa. 1999).J

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-

As noted above, Officer Garron was the affi ant for the search warrant

and affidavit of probable cause at issue

. T he affidavit of probable cause

stated, in relevant part :

During the month of October [Officer Garron] spoke with a

reliable [CI] regarding narcotics sales from an individual only

known to [CI] as “L”. During this conversation [CI] stated that

he/she knows “L” resides at 909 West 7th Street, Chester,

Delaware County, Pennsylvania 19013 and sells large quantities

of cocaine from his residence. [CI] went on to describe “L” as a

blac k male, approximately 5’4” to 5’7” with a medium build, dark

complexion, with a beard and black low cropped hair who is

approximately 40 years old. [CI] has observed “L” numerous

times inside of 909 West 7th Street . . . with large amounts of

cocaine as w ell as large sums of [United States] currency. [CI]

further stated that he/she is aware that “L” has been arrested in

the past for previous narcotics convictions.

[CI] advised [Officer Garron] that he/she wishes to remain

anonymous for fear of bodily har m/death and/or retaliation

against their property should their identity become known.

[Officer Garron] also wishes [CI]’s identity to remain anonymous

out of concern for [CI]’s safety, and also, should his/her identity

become known he/she could no longer provide law enforcement

with information regarding illegal drug activity in and around

Delaware County. [Officer Garron ] has corroborated this

information through independent police investigation and through

other sources of information (Ex.: investigatio n/reports/records

checks). [CI] has provided law enforcement with information

regarding other narcotics investigations, where during or after

their completion different quantities of narcotics/firearms have

been seized and at least three individuals have been arrested as

a result. [CI] has also made numerous statements against his/her

penal interest including the fact that [CI] is/was a user/dealer of

controlled substances. In conversation with [CI, Officer Garron]

knows [CI] to have a thorough familiari ty with the ways in which

controlled substances, specifically cocaine, is used, sold and

distributed, and the corresponding prices at which the various

doses are sold. [Officer Garron] through training and experience

know[s] this information imparted by [ CI] to be accurate.J

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- During the month of October [Officer Garron] conducted

multiple searches on the address of 909 West 7th Street . . . and

was able to locate the name Lamont Johnson . . . as a resident [at

that address]. With this information in hand, [Officer Garron]

conducted numerous searches on the name Lamont Johnson using

JNET, [ 7 ] court records and the National Crime Information Center

(NCIC). Records, including photos for Lamont Johnson were

found, printed and presented to [CI]. [CI] stated th at the photo

obtained utilizing JNET by your affiant was that of “L” who he/she

knows has been selling cocaine from the residence located at 909

West 7th Street [.] Further research on [Appellant] . . . revealed

that he has five prior convictions for viola tions of Title 35 for

manufacturing, delivery, or possession with intent to deliver a

controlled substance.

* * *

During the month of October [Officer Garron] conducted

numerous periods of hidden surveillance during various times of

the day and n ighttime hours on the address of 909 West 7th

Street [.] . During the course of these various surveillance periods

[Appellant] aka “L” was observed coming and going from the front

and rear door of 909 West 7th Street [

. ] Furthermore, [Officer

Garron] observed heavy foot and vehicular traffic, often using the

rear entrance to [the property]. Through training and experience

[Officer Garron] knows this activity to be consistent with narcotics

trafficking.

During the month of November [Officer Garron] met with

[ CI] for the purpose of conducting a controlled purchase of cocaine

from [Appellant] from within the residence located at 909 West

7th Street [.] [CI] was searched and found to be free of any

controlled substances and/or United States currency. [Officer

Ga rron] gave [CI] a quantity of United States currency with which

to make the controlled purchase. [Officer Garron] and [CI]

together went to the vicinity of 909 West 7th Street [.] [CI] left

[Officer Garron] and went directly inside the rear door of 909 We st

7th Street

. . . , by way of a carport/garage making no stops in

between and meeting with no other individuals. After

approximately ten minutes [CI] exited the rear door of 909 West

_________________ __________ ______ ____ _______

7 JNET standards for Pennsylvania Justi ce Network.J

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-

7th Street, . . . and returned directly to [Officer Garron]. Involved

members of law enforcement had constant observation of [CI]

prior to entering the residence as well as after the completion of

the controlled buy. At no time did [CI] stop and or exchange

anything with any person on the street while [e]n route to or from

the residence located at 909 West 7th Street [.] Upon returning

to [Officer Garron], [CI] turned over a quantity of cocaine

consistent with the currency provided, while confirming that the

subject [CI] purchased the illegal narcotics from was [Appellant]

from within the residence located at 909 West 7th Street [.] [CI]

was again searched and found to be free of money and/or a

controlled substance. The cocaine purchased during the

controlled buy was returned to Chester Police Headquarters where

a field tes t was conducted and a positive reaction was received at

which time the cocaine was placed into evidence. Again this

controlled purchase and observation by law enforcement was

during the second week of November.

During the month of November [Officer Garro n] met with

[CI] for the purpose of conducting a controlled purchase of cocaine

from [Appellant.] [CI] was searched and found to be free of any

controlled substances and/or United States currency at which time

[Officer Garron] gave [CI] a quantity of Unit ed States currency

with which to make the controlled purchase. [Officer Garron] had

[CI] place a phone call to [Appellant] in order to set up the

controlled buy; during this conversation, [Appellant] indicated

that he would bring the controlled substance to [CI] at a

predetermined location. At this time, [CI] left [Officer Garron]

and went directly to the predetermined location making no stops

in between and meeting with no other individuals. After

approximately [20] minutes, involved members of law

enfor cement observed [Appellant] exit the front door of 909 West

7th Street . . . and proceed to enter a tan/beige Buick Park Avenue

parked directly in front of the property [.] At this time involved

members of law enforcement followed [Appellant] in the tan/be ige

Buick bearing Pennsylvania registration (JST

- 8648) directly to the

predetermined meet location while observing that [Appellant]

made no other stops in between; avoiding any meetings or

transactions with any other individuals on his way to the

predeterm ined meet location. Upon meeting with [CI, Officer

Garron] observed a quick exchange/transaction between [CI] and

[Appellant]. After the transaction, [Appellant] left the

predetermined meet location while [CI] returned directly to

[Officer Garron]. Invo lved members of law enforcement hadJ

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-

constant observation of [CI] prior to, during the deal and after the

completion of the controlled buy. At no time did [CI] stop and[/]or

exchange anything with any other person on the street while [e]n

route to or from the predetermined meet location. Upon returning

to [Officer Garron], [CI] turned over a quantity of cocaine

consistent with the currency provided, while confirming that the

subject [CI] purchased the illegal narcotics from was [Appellant]

from within the tan/beige Buick bearing Pennsylvania registration

(JST

- 8648). [CI] was again searched and found to free of any

money and/or controlled substances. The cocaine purchased

during the controlled buy was returned to Chester Police

Headquarters where a field t est was conducted and a positive

reaction was received at which time the cocaine was placed into

evidence. Again this controlled purchase and observation by law

enforcement was during the second week of November.

During the month of December with 48 hour s of application

for search warrant, [Officer Garron] met with [CI] for the purpose

of conducting a controlled purchase of cocaine from [Appellant]

from within the residence located at 909 West 7th Street [.] CI]

was searched and found to be free of any co ntrolled substances

and/or United States Currency. [Officer Garron] gave [CI] a

quantity of United States currency with which to make the

controlled purchase and had [CI] place a phone call to [Appellant].

After placing the phone call setting up the cont rolled buy [Officer

Garron] and [CI] together went to the vicinity of 909 West 7th

Street [.] [CI] left [Officer Garron] and went directly inside the

rear door of [the property], by way of the carport/garage, making

no stops in between and meeting with no other individuals. After

approximately five minutes [CI] exited the rear door of 909 West

7th Street . . . and returned directly to [Officer Garron]. Involved

members of law enforcement had constant observation of [CI]

prior to entering the residence as well as after the completion of

the controlled buy. At no time did [CI] stop and[/]or exchange

anything with any person on the street while [e]n route to or from

the residence located at 909 West 7th Street [.] Upon returning

to [Officer Garron], [CI] tur ned over a quantity of cocaine

consistent with the currency provided, while confirming that the

subject [CI] purchased the illegal narcotics from was [Appellant]

from within the residence located at 909 West 7th Street [.] [CI]

was again searched and found to be free of money and/or any

controlled substances. The cocaine purchased during the

controlled buy was returned to Chester Police Headquarters where

a field test was conducted and a positive reaction was received atJ

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-

which time the cocaine was placed i nto evidence. Again this

controlled purchase and observation by law enforcement was

during the month of December within 48 hours of [the] application

for [the] search warrant.

Based upon [Officer Garron]’s training and experience as

well as the facts set forth above, [the officer] knows that persons

distributing quantities of controlled substances, such as cocaine

commonly engage in the same process at a residence that is

within control of the trafficker and hence, the trafficker is secure

in minimizing d etection by police. Further, [Officer Garron] knows

that it is common for traffickers like [Appellant] to store their

supply or portions of their supply of cocaine, along with other

controlled substances, records of sales, monies/assets and other

related items at their residence since the residence proves some

measure of security not only from police detection, but from rip

offs by other dealers and/or users of the controlled substance.

Furthermore, [Officer Garron] knows based upon [his] experience

that traffickers such as [Appellant] often have weapons within

their control in order to protect themselves and their stash,

including cocaine, from rip offs from other drug traffickers and

from “stick up boys”

- people who make a living by robbing drug

traffic kers.

Search Warrant at 2

- 6.

In finding there was probable cause to support the search warrant, the

trial court relied on the following: (1) Officer Garron was a trained investigator

for controlled substances and their uses , distribution, and effects on the

human body , and was qualified as “Drug Expert ” in court proceedings ; (2)

Officer Garron had been involved in numerous drug

- related arrests as well as

the execution of search and arrest warrants for controlled substances

violations ; (3 ) relat ed to this case, he was in contact with the CI concerning

sales of controlled substances by Appellant and indicated the CI told him the

buys were made from Appellant ; (4) the CI had provided law enforcementJ

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-

with information concerning prior narcotics inves tigations and the information

proved very reliable as it resulted in at least three arrest and the seizure of

drugs and firearms ; (5) Office r Garron corroborated the information regarding

Appellant through an independent police investigation, verifying tha t Appellant

had five prior convictions for PWID ; and (6) Officer Garron conducted

numerous periods of hidden surveillance of Appellant , noting that he drove a

tan/beige Buick

. See Trial Ct. Op. at 7

- 9. The court further stated:

For all of these reasons, th[e c]ourt following the

suppression hearing and review of the information contained in

the search warrant affidavit and according deference to the issuing

authority’s probable cause determination in a common

- sense

, nontechnical manner concluded the affiant is a person of

reasonable caution and the facts and circumstances within his

knowledge were sufficient to warrant him to believe an offense

had been committed and was continuing. Th[e c]ourt determined

the issuing authority had a substantial basis for concluding

probable cause existed within the four corners of the affidavit for

the search warrant application and the issuing authority made the

practical and common

- sense decision given all the circumstances

set forth in the affidavit supporting the search warrant application

including the veracity and basis of knowledge of persons supplying

hearsay information there was a fair probability contraband or

evidence of a crime would be found in [Appe llant]’s residence

located at 909 West 7th Street

. . . .

Id. at 10. 8

_________________ __________ ______ ____ _______

8 The court also noted that was a misstatement that arose in the affidavit

—

Officer Garron alleged that in November 2014, Appellant drove a tan/beige

Buick bearing Pennsylvania license plate, JST

- 8648

. Trial Ct. Op. at 9. At the

suppression hearing, Appellant called Yamin Ilyaas , an automobile tag agent,

to testify that he issued a tag with the number “JST

- 8648” on December 1,

2014. See N.T., 8/11/15, at 6

- 9. Appellant argued this information was a

material misstatement of fact.

(Footnote Continued Next Page)J

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-

Our review of the certified record leads us to agree with the trial court

that the affidavit, as a whole, provided the magistrate district judge with

sufficient informatio n to conclude there was a reasonable probability evidence

of criminal activity

─ drug use

─ would be found at Appellant’s home and in

his car. First, we note that Appellant ’s argument amounts to a request for

this Court to take a “ hypertechnical ” approach regarding the language of the

search warrant, including the affidavit of probable cause, based on a purported

lack of specificity regarding the re liability of the CI

. F or example, as stated

above, Appellant contends that while the CI provided information that led to

three arrests, such information “does not establish reliability because there is

no showing that the information . . . was proven to be true” and the “affidavit

fails to include any othe r facts relating to the case or cases in which the

_________________ __________ ______ ____ _______

In response, Officer Garron testified that he looked up for the tag for

the vehicle after December 2, 2014, but before December 4, 2014, the date

he drafted the search warrant. N.T., 8/11/15, at 29. He stated he “was

attempting to . . . tidy up the search warrant, at which time [he] got the tag

for the Buick so [he] could enter it into the search warrant.” Id. at 28

- 29.

Officer Garron testified that prior to that date, he had not taken notice of the

ac tual license plate on Appellant’s car. Id. at 29. The officer further stated

that it was his experience that “sometimes drug traffickers keep their stash in

a car if their house” is searched and they “take steps to avoid police detection

by using cars th at are not registered to them .” Id. at 30. The trial court

found Officer Garron to be “credible” and “accepted the explanation proffered

by him concerning this impossibility and misstatement of fact.” Trial Ct. Op.

at 9

- 10

.

Appellant did not renew th is argument in his appellate brief; therefore,

we need not address it further

.J

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-

informant provided information[, including] the name of the person s arrested,

the type of information provided by the informant or whether the case or cases

got past the preliminary hearing [.]” Appellant’ s Brief at 22. F urther, he

suggests that affidavit did not contain enough particularity as to the

statements made by the CI that were against their penal interest

. Id. at 23.

He argues this is problematic because the actual statements did not appear in

the affidavit

, and there was no indication whether those statements were

made with reference to this case

. Id.

We decline to adopt Appellant’s “hypertechnical approach.” We reiterate

that the issuance of a search warrant is based on a “ practical, common

- sense

decision whether, given all of the circumstances set forth in the affidavit

. . .

including the veracity and basis of knowledge of persons supplying hearsay

information, there is a fair probability that contraband or evidence of a c rime

will be found in a particular place.” Jacoby

, 170 A.3d at 1082 (citation

omitted)

. Here, as the evidentiary support was summarized by the trial court,

the issuing judge authorize d the search warrant based on (1) substantial

information from the CI

, and (2) corroborating research conducted by Officer

Garron , including three controlled buys that took place either in Appellant’s

home or his car

. It is ev ident from a “practical” and “common sense” reading

of these facts there there wa s a fair probability that contraband or

incriminating evidence would be found at those locations

. See id. ; see also

Clark

, 28 A.3d at 1288.J

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- 19

-

We note that Appellant relies on Commonwealth v. Manuel

, 194 A.3d

1076 (Pa. Super. 2018) ( en banc ) , for the notion that the CI’s reliability was

not sufficiently established. We find that case is distinguishable from the

present matter. In Manu e l

,

the sole indicia of the CI ’ s reliability presented in the affidavit of

probable cause was that he had provided information leading to a

single felony drug arrest. The affidavit [did] not identify the name

of the defendant or docket number in that case, indicate the type

of information provided by the CI that led to the arrest, or state

whether the defenda nt was even held over for trial. Moreover,

there [was] no indication that the CI himself participated in the

criminal activity of which he informed the police, thus exposing

himself to legal jeopardy and lending credence to his information.

In short, the only evidence available to evaluate the reliability of

[that] CI [was] the fact that he once provided police with some

unspecified information that, either alone or in conjunction with

other unidentified evidence, led to a finding of probable cause to

arr est someone on felony drug charges.

Manuel

, 194 A.3d at 1084 (citation omitted)

.

In reversing the trial court’s denial of the co

- defendants ’ motion to

suppress, this Court recognized that there was “ no ‘ magic number ’ of arrests

or convictions for which a CI need previously have provided information to be

deemed reliable [,] ” and stated “ the fact that the CI had previously provided

information leading only to one unadjudicated arrest does not automatically

render the af

fidavit lacking in probable cause. ” Manuel

, 194 A.3d at 1084

-

85. Nevertheless, the Court found “ the lack of any meaningful follow

- up

investigation by the police to secure true corroboration of such inside

information [led them] to conclude that, under the totality of theJ

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-

circumstances, the affidavit did not establish probable cause. ” Id. at 1085.

The Court further noted :

Police neither arranged for the CI to conduct a controlled buy at

the premises nor performed any type of ph otographic or electronic

surveillance. Nor did they conduct a trash pull. Rather, [the

officer] merely ran searches through PennDOT that established

that [the one co

- defendant] resided at the Pleasant Grove

Residence and that [the other co

- defendant] registered a car at

that address. This generally available information was not

corroborative of the CI ’ s information

.

Id. (footnote omitted).

.

Turing to the present matter

, w e find that Manuel is distinguishable

from the facts presented herein

, and therefore, not controlling. Unlike the

officers in Manuel

, Officer Garron did follow up with meaningful investigation

to secure a verified corroborat ion of the CI ’s information

— he conducted

surveillance as well as three controlled buys using the CI.

Lastly, Appellant arg ues that because he was arrested without probable

cause, his confession should be purged because of the illegal arrest, and

therefore, his statement s to police should be suppressed

. See Appellant’s

Brief at 25. W e conclude that t his claim is unavailing based on our above

stated analysis

. Contrary to Appellant’s argument, we agree with the trial

court that there was probable cause to support the warrant

. 9 Accordingly,

Appellant’s first claim has no merit.

_________________ __________ ______ ____ _______

9 We note Appellant does not allege that his confession was involuntary or

unknowing , which would call for a separate analysis.J

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- 21

-

In his remaining argument, Appellant alleges the trial court erred and

abused its discretion by denying his pre

- trial request for disclosure of the

identity of the CI. See Appellant’s Brief at 28

- 29. He argues that he “had

every reason to place Officer Garron’s credibility at issue with the jury” and

the CI “would have been able to provide information that would have either

contradicted or corroborated [the officer]’s trial testimony[.]” Id. at 34. 10

Appellan t states that “much of the action undertaken, and not undertaken by

the officer, was premised on information provided by” the CI. Id. at 34

- 35.

He asserts

, “As the information in the hands of the informant would bear

directly on Officer Garron’s trial testimony, it was relevant and not collateral.

The identity of the informant was therefore material to the defense.” Id. at

35. Appellant also complains th at “the Commonwealth did not present any

evidence that disclosure of the identity of the [CI] would jeopardize the

informant’s safety.” Id.

“ Our standard of review of claims that a trial court erred in its disposition

of a request for disclosure of an informant ’ s identity is confined to abuse of

_________________ __________ ______ ____ _______

10 For example, he states that the officer never retaine d the photograph of

Appellant he showed to the CI. See Appellant’s Brief at 32. The CI described

the person selling drugs “as a black male, 5’5” to 5’7”, approximate age

around 40 [years old].” Id. ( citation omitted). Appellant points out that there

was a second black male found in the basement of the house, who was

“described as 53 years old, medium build, dark complexion.” Id. Appellant

suggest s no further investigation was done by Officer Garron to see if this

individual was the person the CI had identified. Id. at 33.J

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-

discretion. ” Commonwealth v. Jordan

, 125 A.3d 55, 62 (Pa. Super. 2015)

( en banc ) (citation omitted).

Under Pennsylvania Rule of Criminal Procedure 573, a trial court

has the discretion to requi re the Commonwealth to reveal the

names and addresses of all eyewitnesses, including confidential

informants, where a defendant makes a showing of material need

and reasonableness:

(a) In all court cases, except as otherwise provided in Rule

230 (Disclosure of Testimony Before Investigating Grand

Jury), if the defendant files a motion for pretrial discovery,

the court may order the Commonwealth to allow the

defendant's attorney to inspect and copy or photograph any

of the following requested items , upon a showing that they

are material to the preparation of the defense, and that the

request is reasonable:

(i) the names and addresses of eyewitnesses [

. ]

Pa.R.Crim.P. 573(B)(2)(a)(i).

Commonwealth v. Marsh

, 997 A.2d 318, 321 (Pa. 2010)

.

The Commonwealth has a qualified privilege not to disclose the

identity of a CI. Thus, where a defendant seeks a CI’s identity,

the defendant must first show that [the] request for disclosure is

reasonable and that the information sought to be obtained

th rough disclosure is material to the defense. Thus, although the

defendant need not predict absolutely what the CI would say, the

defendant must demonstrate at least a reasonable possibility the

informant ’ s testimony would exonerate him.

It is only after the defendant carries this initial burden does

the trial court then exercise its discretion and determine whether

the information is to be revealed. A defendant fails to carry the

initial burden to show that the CI ’ s identity would be material to a

defense of mistaken identity where the record contains no

evidentiary basis on which the defendant could assert the defense.

Commonwealth v. Bright

, 234 A.3d 744, 747 (Pa. Super. 2020) (citation s

& quotation marks omitted)

.J

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- 23

-

In addressing this issue, the trial court found the following:

Th [e c] ourt on June 3, 2016 [,] properly denied Appellant ’ s motion

filed as part of his March 16, 2016 [,] Amended Omnibus Pretrial

Motion. In the motion, Appellant claimed he is entitled to have

the confidential informant ’ s identity revealed. Appellant

contended a significant portion of the affidavit used to support the

searc h warrant involved alleged controlled buys by the

confidential informant, the controlled buys were not wit nessed by

any law enforcement officer and the identity of the confidential

informant is essential in order to establish the veracity of the

information used to support the affidavit of probable cause

.

Accordingly on April 12, 2016 [, the trial c] ourt held a

hearing on Appellant ’ s motion for disclosure for Appellant to

present evidence on the issue of whether a misrepresentation was

knowingly and falsely made in the probable cause affidavit and

whether it was material to the establishment of probable cause.

At the hearing on the motion, no testimony was presented;

Appellant reiterated the allegations set forth in his motion. Th [e

c] ourt was not persuaded Appellant demonstrated through his

motion, exhibits, and argument any right to disclosure of the

identity of the confidential i nformant, and concluded Appellant

failed to meet his burden to show the existence of willful and

material misstatements or falseness in the search warrant

affidavit. 3 Additionally, th [e c] ourt found, based on the totality of

the circumstances set forth in the affidavit, the confidential

informant was reliable. Th [e c] ourt also concluded, based on the

information set forth in the affidavit, the safety of the informant

would have been compromised by disclosure of the informant's

identity.

_________________ ____

3 The only potential misstatement in the affidavit of probable

cause for the search warrant raised by Appellant concerned

the number of the license plate for the Buick and [the trial]

court was satisfied by Officer Garron’s explanation and

concluded this wa s not a material misstatement of fact.

_____________________

In view of all this, recognizing the Commonwealth enjoys a

privilege to withhold the identity of the confidential informant, and

having determined Appellant did not show any materialJ

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-

misstateme nts of fact, or disclosure of the informant ’ s identity was

material to the preparation of his defense or was reasonable in

the interests of justice, th [e c] ourt was not required to conduct a

balancing test concerning disclosure of the identity of the

confi dential informant and properly denied Appellant ’ s motion.

Assum [ing ] arguendo th [e ] court was required to conduct

the balancing test, upon consideration of all the facts and

circumstances of record in this case, the scales do not tip in favor

of disclosure of the identity of the confidential informant. Th [e

c] ourt ’ s denial of Appellant ’ s motion was proper, and the decision

was not an error nor manifestly unreasonable.

Trial Ct. Op. at 1 4

- 16.

We discern no abuse of discretion in the trial court’s analysis or

conclusion. Appellant failed to meet his burden of establishing that there was

a knowing and false misrepresentation in the affidavit of probable caus e, and

it was material to establishment of that standard of proof. Moreover

, to

extent Appellant att empts to argue that Officer Garron’s testimony could have

been attacked by the information provided by the CI, we point out that the

Commonwealth ’ s case was predicated upon the narcotics and paraphernalia

seized from Appellant’s prop erty , which Appellant admitted to possessing in

his statement to police

. Therefore, Appellant “ failed to satisfy the threshold

test necessary to overcome the Commonwealth ’ s qualified privilege. ” See id.

at 143. Accordingly, we conclude the trial court did not abuse its discretion in

denying Appellant’s request to disclose the CI ’ s identity , and his second claim

fails.

Judgment of sentence affirmed.J

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-

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/27/2023