J-A25007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TROY SHAWN HOWARD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 54 WDA 2023

Appeal from the Judgment of Sentence Entered May 2, 2022

In the Court of Common Pleas of Westmoreland County Criminal Division 

at No(s): CP-65-CR-0001280-2020

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

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

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

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

with physical evidence and possession with intent to deliver a controlled 

substance (“PWID”). We affirm. 

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

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

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

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

The search was conducted pursuant to the following pertinent provisions of 

the Affidavit of Probable Cause:

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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5. The CI advised that he/she is able to purchase crack cocaine 

from a male they identified as “Slim” at 1013 Kenneth Avenue 

Apartment B. The CI described “Slim”as a black male. The CI 

said that “Slim” utilizes 1013 Kenneth Avenue Apartment B, New 

Kensington, Westmoreland County, Pennsylvania, 15068. The CI 

advised that “Slim” will sell the crack cocaine from 1013 Kenneth 

Avenue Apartment B in the City of New Kensington. 

6. The CI has been proven reliable for the Pennsylvania Office of 

Attorney General and the City of New Kensington Police 

Department. The information the CI provided regarding this 

investigation has been corroborated through law enforcement 

intelligence and physical surveillance. The CI also provided 

information to law enforcement officers, which were against the 

CI’s own penal interests. In addition, during this investigation, 

the CI has made two successful controlled purchases of crack 

cocaine from “Slim.”

. . . .

9. The CI was driven near 1013 Kenneth Avenue Apt. B by an 

undercover officer. The CI was observed walking to a small 

window on the north side of the building and handing a quantity 

of money through the window in exchange for a quantity of crack 

cocaine. Shortly after that, the CI was observed returning to the 

detail vehicle. The CI handed over a quantity of crack cocaine to 

the undercover officer. The CI stated that they walked to the side 

window of 1013 Kenneth Avenue Apt. B and gave “Slim” official 

[Attorney General Bureau of Narcotics Investigation] funds in 

exchange for crack cocaine. The crack cocaine was field tested 

and showed a positive result for cocaine. The CI was kept under 

constant physical surveillance by detail officers throughout the 

detail.

. . . .

12. Surveillance had been conducted on this residence in the past. 

Officers observed numerous people walking to the window on the 

north side of the residence and making hand to hand transactions 

with the occupant inside. 

Affidavit of Probable Cause, 3/2/20 (cleaned up). 
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After police knocked and announced their presence, Patrol Sergeant 

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

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

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

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

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

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

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

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

Thereafter, investigators searched the apartment and located large quantities 

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

scale, rubber gloves, and baggies. 

Appellant was charged with several crimes and subsequently filed an 

omnibus pretrial motion challenging the legality of the search of his 

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

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

the evidence seized should therefore be suppressed. See Omnibus Pretrial 

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

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

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

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1 A later test confirmed that the bags contained fentanyl, a Schedule II

controlled substance. See Trial Court Opinion, 3/6/23, at 7; 35 P.S. § 780-

104(2)(ii)(6). 
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appeal followed. The trial court ordered Appellant to file a concise statement 

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

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

opinion. 

Appellant proffers the following questions for our review: 

1. A search warrant issued for a residence identified as “1013 

Kenneth Avenue, Apartment B, New Kensington.” The trial 

court affirmed the magistrate’s finding of probable cause to 

support the warrant, concluding there was sufficient indicia 

of reliability surrounding the confidential informant and 

sufficient facts establishing a nexus of criminal activity to 

“Apartment B,” specifically. So finding, did the trial court 

rely upon presumptions existing outside the four corners of 

the affidavit of probable cause and, generally, err by not 

granting suppression?

2. Was there sufficient evidence to convict Appellant for 

tampering with evidence, where the subject evidence was 

discarded in plain view of law enforcement?

3. The Commonwealth’s drug-trafficking expert opined that 

“whoever possessed [the controlled substances] possessed 

it with the intent to deliver it.” Did the Commonwealth 

adduce sufficient evidence to prove, beyond a reasonable 

doubt, that it was Appellant’s specific intent to deliver the 

controlled substances rather than a third party’s intent?

Appellant’s brief at 5. 

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

suppression motion, which we consider pursuant to the following legal 

principles:

An appellate court’s standard of review in addressing a challenge 

to the denial of a suppression motion is limited to determining 

whether the suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn from those 
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facts are correct. Because the Commonwealth prevailed before 

the suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the suppression court’s factual findings are 

supported by the record, the appellate court is bound by those 

findings and may reverse only if the court’s legal conclusions are 

erroneous. Where the appeal of the determination of the 

suppression court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding on an 

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

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

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

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

up). 

Appellant contends that the suppression court erred in upholding the 

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

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

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

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

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

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

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

held that:

Probable cause is determined by the totality of the circumstances. 

In determining whether probable cause exists to support a search 

warrant, the issuing authority is simply to make a practical, 

common-sense decision whether, given all the circumstances set 

forth in the affidavit there is a fair probability that contraband or 

evidence of a crime will be found in a particular place. A court 

reviewing the underlying probable cause determination must view 

the information offered to establish probable cause in a common-
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sense, non-technical manner. Probable cause is based on a 

probability, not a prima facie case of criminal activity.

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

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

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

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

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

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

have noted that probable cause exists based upon an informant’s tip “where 

police independently corroborate the tip, or where the informant has 

provided accurate information of criminal activity in the past, or where 

the informant himself participated in the criminal activity.” Commonwealth 

v. Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (en banc) (emphases in 

original). 

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

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

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

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

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

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

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

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

enforcement had set up multiple controlled buys with the CI, who knew the 
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address where he could purchase drugs. See Opinion and Order, 10/12/21, 

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

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

also knew that the apartment window where the transactions occurred was 

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

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

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

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

appropriate information concerning the location of the premises, and law 

enforcement also observed drug dealing at the residence in question similar 

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

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

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

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

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

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

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

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

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

affiant. 

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

shown to be reliable. See Appellant’s brief at 25. Specifically, Appellant 
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argues that the affidavit contained no concrete information detailing the 

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

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

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

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

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

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

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

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

detailed descriptions concerning past arrests for which the CI was responsible 

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

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

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

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

the affidavit appropriately noted that the CI previously provided law 

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

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

the customary phrase that the informant has provided information which has 

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

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

at ¶ 6.
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Based on the above, the magistrate had a substantial basis for his 

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

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

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

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

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

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

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

evidence for his convictions for tampering with evidence and PWID, 

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

the following guidelines:

[When] viewing all the evidence admitted at trial in the light most 

favorable to the verdict winner, there is sufficient evidence to 

enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all the evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence. 

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017) 

(citation omitted). 
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Tampering with physical evidence is defined at § 4910 of the Crimes 

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

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

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

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

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

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

offense of tampering with evidence:

(1) the defendant knew that an official proceeding or investigation 

was pending (or about to be instituted); (2) the defendant altered, 

destroyed, concealed, or removed an item; and (3) the defendant 

did so with the intent to impair the verity or availability of the item 

to the proceeding or investigation.

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

Appellant argues that he is entitled to relief because the Commonwealth 

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

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

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

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

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

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

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

brief at 36. 

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

Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996). There, the defendant 
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fled police after making a controlled buy of narcotics and, in the process of 

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

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

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

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

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

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

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

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

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

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

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

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

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

discarded drugs landed. The officers who announced themselves came 

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

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

Delgado is inapt. 

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

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

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

law enforcement entered Appellant’s residence and found him discarding 

drugs in the toilet. Id. at 1328-1329 (stating that “[t]he trier of fact could 
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reasonably infer that appellant had become aware that his drug dealing was 

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

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

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

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

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

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

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

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

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

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

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

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

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

whom he knew were entering the residence. 

Viewing the evidence in the light most favorable to the Commonwealth 

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

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

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

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

activities. Therefore, he is not entitled to relief.

In a similar vein, Appellant contends that the Commonwealth presented 

insufficient evidence to convict him of PWID. See Appellant’s brief at 38. To 
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sustain a conviction for PWID the Commonwealth must prove that Appellant 

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

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

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

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

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

quantity of the drugs possessed and other surrounding circumstances, such 

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

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

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

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

607, 610 (Pa.Super. 2003). 

Appellant asserts that the Commonwealth did not sufficiently prove that 

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

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

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

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

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

person law enforcement officials found in the residence, enabling the 

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

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

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

apartment. Furthermore, police discovered Appellant seated on a toilet in the 
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bathroom where, moments earlier, officers stationed outside observed a box 

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

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

doubt that Appellant possessed all drugs that were seized.

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

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

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

admissible concerning whether the facts surrounding the possession of 

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

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

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

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

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

the detective observed that the quantities of crack cocaine and fentanyl 

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

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

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

enforcement discovered no drug paraphernalia such as needles or syringes in 

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

____________________________________________

2 Appellant possessed fifty-nine grams of crack cocaine, which Detective 

Marcocci stated was far more than a sole individual could use. See N.T. Trial, 

2/14/22, at 211. The detective also noted that Appellant had 452 baggies of 

fentanyl. Coupled with the packaging of the fentanyl, Detective Marcocci 

testified that the quantity that Appellant possessed demonstrated an intent to 

deliver. See id. at 212-213. 
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consumption. Id. at 213. Indeed, numerous items found in Appellant’s 

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

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

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

Marcocci concluded to a reasonable degree of professional certainty that the 

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

intent to deliver. See id. 

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

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

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

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

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

532, 540 (Pa.Super. 2017) (“Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and inconclusive 

that as a matter of law no probability of fact may be drawn from the combined 

circumstances”). 

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

we affirm his judgment of sentence. 

Judgment of sentence affirmed. 
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DATE: 2/12/2024