J-S09022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DEVIN MCCALL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 563 WDA 2022

Appeal from the Judgment of Sentence Entered January 20, 2022

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

No(s): CP-02-CR-0002835-2020

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

MEMORANDUM BY BOWES, J.: FILED: MAY 9, 2023

Devin McCall appeals from the judgment of sentence of an aggregate 

term of six and one-half to thirteen years of incarceration imposed upon his 

convictions for multiple possessory offenses involving controlled substances 

and firearms. We affirm.

The following is a factual summary gleaned from the trial court’s 

recitation of the evidence underlying Appellant’s convictions. In early January 

2020, Detective Michael Slatcoff of the City of Pittsburgh Police’s Narcotics 

and Vice Unit conducted an investigation of illegal drug sales out of a residence 

at 709 Industry Street, Apartment 1 after receiving a tip from a confidential 

source (“CS”). In surveilling the apartment, police observed multiple 

individuals enter the residence, some without knocking first, and exhibit signs 

of drug use. The police also orchestrated a controlled buy of narcotics through
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the CS, who was searched beforehand, given serialized money to purchase 

narcotics, and searched afterwards to recover the acquired contraband. 

Through their investigation, the police further learned that the leaseholder of 

the apartment was Michael Shearn. The suspected drug dealer, whose phone 

number police had, was “a black male with long dread locks and a slightly 

heavy-set build” who “went by the nickname ‘D,’ ‘Dirty,’ and/or ‘Dirt.’” Trial 

Court Opinion, 8/9/22, at 4 (cleaned up). The police utilized this information 

to obtain a search warrant for the apartment, Mr. Shearn, and “D.” 

A SWAT team that included narcotics detective Matthew Costabile 

executed the warrant on January 9, 2020. According to Detective Costabile, 

entry was made directly into the living room, where a white male 

was located on a couch. At this same time a heavy-set black male 

with dreadlocks ran from the living room towards a hallway. The 

black male, later identified as Appellant, was wearing a white tshirt and black pants. He was using both of his hands to hold his 

front waistband as he ran towards the back of the residence. 

Detective Costabile gave several commands for Appellant to show 

his hands and come to the front of the residence. Appellant did 

not comply, whereafter, Detective Costabile and other members 

of SWAT entered the hallway. Several more commands were 

given, ordering Appellant to show his hands and come out. 

Thereafter, Appellant’s head peered around a kitchen wall and 

only his left hand was visible. Again commands were given 

instructing Appellant to display both of his hands. He finally 

complied and was detained with handcuffs. No other persons were 

located in the kitchen. After removing Appellant, Detective 

Costabile observed a digital scale on the counter with white 

residue, and a silver revolver on the floor located approximately 

three feet from where Appellant had been standing.

Id. at 7 (footnotes omitted). A search of Appellant’s person yielded no 

contraband, but did produce an identification card listing an address different 
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from the searched apartment and just under $600 in cash, none of which was 

from the controlled buy. “Prior to transporting Appellant from the scene, 

police allowed him to get dressed. At this time Appellant requested three 

belongings from the kitchen: a jacket hanging on a chair, a pair of boots on 

the floor below the jacket and the black LG phone found on top of the stove.” 

Id. at 6.

Detectives then began a search of the apartment. Inside the 

kitchen . . . police observed various narcotics, drug paraphernalia 

and personal items. From a kitchen drawer, police recovered 

sandwich bags and diaper baggies,[1] and underneath the baggies

they located a digital scale, a small bag of crack cocaine, and four 

stamp bags of heroin. On the kitchen counter police found a 

second digital scale, and a sandwich baggie containing five 

individual bags with crack cocaine. Inside an orange bag located 

in front of the kitchen cabinet, police recovered additional 

narcotics, heroin and fentanyl. Additionally, a Smith and Wesson 

revolver was recovered from the floor in a corner of the kitchen. 

. . . Two additional cell phones were retrieved from the floor of 

the kitchen. A test call made by Detective Slatcoff to the phone 

number used by the CS to arrange the controlled buy connected 

to one of the cell phones on the floor. A cell phone number 

subsequently provided by Appellant did not connect to the black 

cell phone recovered from the top of the stove.

____________________________________________

1 Detective Slatcoff explained:

So diapers are another very common item you will find with 

distributors. You have a sandwich bag, the narcotics a variety of 

which are packaged into corners. The distributor will either cut 

off that corner on both sides or rip it off.

Sometimes you will see it twisted off and knotted, and then the 

remnants looks like a diaper. That’s why we call it that. It’s very 

specific evidence for us that narcotics are being packaged.

N.T. Trial, 9/28-29/21, at 107. 
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Id. at 5-6 (footnotes omitted). 

Appellant was charged with three counts each of possession of a 

controlled substance and possession with intent to deliver (“PWID”), as well 

as one count each of conspiracy (PWID), possession of drug paraphernalia, 

person not to possess firearms, and possession of an instrument of crime. He 

filed an omnibus pretrial motion in which he, inter alia, sought to suppress the 

evidence obtained from execution of the search warrant because the lack of 

detail about the reliability of the CS rendered the warrant unsupported by 

probable cause. See Omnibus Pretrial Motion, 7/9/21, at 5-6. The trial court 

denied the motion and proceeded to a bench trial. 

The Commonwealth presented evidence of the above facts through 

Detectives Slatcoff and Costabile, as well as the facts that the suspected 

narcotics tested positive for heroin, fentanyl, and cocaine; the recovered 

firearm was operable; and Appellant had prior convictions that rendered him 

ineligible to possess a firearm. Id. at 6. Detective Slatcoff further testified

as an expert witness to opine that, based upon the packaging of the narcotics 

and the presence of digital scales and other paraphernalia, multiple cell 

phones, and cash, the evidence suggested street-level drug sales and 

distribution rather than personal use. 

Appellant testified in his defense as follows:

Appellant testified that for the three days leading up to 

January 9, 2020, he had been visiting his uncle, who lives in the 

second-floor apartment located at 709 Industry Street, while 

Appellant’s car was being fixed. He testified that although his 
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uncle allowed him to visit, he does not allow anyone in the 

apartment when he is not home. Consequently, he testified that 

his uncle arranged for Appellant to stay at a neighboring 

apartment during his work hours, which ran from 7:00 a.m. until 

8:00 or 9:00 p.m. This neighboring apartment was the first-floor 

apartment belonging to Mr. Shearn. Appellant stated he did not 

know Mr. Shearn prior to the days leading up to the search. 

On the day the search warrant was executed Appellant 

testified that he was in the bathroom of Mr. Shearn’s apartment 

having sex with his girlfriend Christina Cobaugh. He stated that 

after hearing loud bangs, he quickly pulled up his pants and went 

into the living room. Police then made entry with guns drawn and 

Appellant ran towards the kitchen. He explained that he ran out 

of fear because he [had] been the victim of a prior shooting. 

Appellant denied using his hands to hold up his pants when he fled 

the living room, because he was wearing a belt. He explained that 

he was trying to comply with police commands to show his hands, 

but because of his body angle he was only able to show his right 

hand at first. He further explained he had a cell phone on his 

person and had to put it down in order to show both of his hands. 

He later testified that the phone was registered to either his uncle 

or his wife, and that both Mr. Shearn and Ms. Cobaugh used this 

phone. In terms of his personal belongings, Appellant described 

that the $600 retrieved from his person was money to pay for his 

car repairs. His only other belongings were a black jacket and a 

pair of boots that were outside the bathroom because he had 

removed them in order to have sex with Ms. Cobaugh. He 

speculated that both the jacket and boots must have been kicked 

around while SWAT was inside the apartment. Appellant denied 

going by the nicknames “D” or “Dirt,” but testified that his uncle, 

whose name he could not spell, is known by those names. He 

further denied that any of the drugs in the kitchen belonged to 

him, but offered that both Ms. Cobaugh and Mr. Shearn are drug 

users.

Id. at 9-10 (cleaned up).

Upon this evidence, the trial court acquitted Appellant of conspiracy but 

found him guilty of the remaining charges. Following a presentence 

investigation (“PSI”), the court sentenced Appellant as indicated above. 
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Appellant filed a timely post-sentence motion (1) challenging the sufficiency 

of the evidence to support the convictions; (2) claiming that the verdict was 

against the weight of the evidence; and (3) asking the trial court to reconsider 

its imposition of a manifestly excessive aggregate sentence by ordering 

multiple consecutive sentences based only upon the serious nature of the 

crime and without adequately considering Appellant’s rehabilitative needs. 

See Post-Sentence Motion, 1/28/22, at ¶¶ 4-6.

The trial court denied Appellant’s post-sentence motion in all respects, 

and Appellant filed a timely notice of appeal. Thereafter, the trial court 

ordered Appellant to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b), and Appellant complied. The trial court 

thereafter authored an opinion pursuant to Pa.R.A.P. 1925(a). Appellant 

presents the following questions for our consideration:

1. Whether the evidence presented at trial was insufficient as 

a matter of law to sustain a conviction for any of the charged 

offenses?

2. Whether the verdict was against the weight of the evidence 

to convict [Appellant] of any of the charged offenses?

3. Whether the trial court erred when it denied [Appellant]’s 

pretrial motion to suppress evidence when the 

Commonwealth failed to demonstrate that the search 

warrant contained sufficient probable cause?

4. Whether the Trial Court abused its discretion in sentencing 

[Appellant]?

Appellant’s brief at 3 (cleaned up). 
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We begin with Appellant’s sufficiency challenge, mindful of our standard 

of review:

The standard we apply in reviewing the sufficiency of the evidence 

is whether 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 a 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 evidence 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. Haahs, 289 A.3d 100, 104 n.2 (Pa.Super. 2022) (cleaned 

up).

Each of Appellant’s convictions required proof that he possessed the 

contraband in question. See 18 Pa.C.S. § 6105; 35 Pa.C.S. § 780-113(a)(16), 

(30), (32). That is the only element of any of the crimes that Appellant 

challenges in this appeal. See Appellant’s brief at 15-18. Since the 

Commonwealth did not prove that Appellant had been in actual possession of 

any of the prohibited items, to be sound, his convictions must rest on proof 

that he constructively possessed the firearm, drugs, and paraphernalia. See, 

e.g., Commonwealth v. Dix, 207 A.3d 383, 390 (Pa.Super. 2019). 
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This Court has explained constructive possession as follows:

Where possession is an element of the offense, the concept of 

constructive possession is a legal fiction used to prove the element 

although the individual was not in physical possession of the 

prohibited item. The evidence must show a nexus between the 

accused and the item sufficient to infer that the accused had the 

power and intent to exercise dominion and control over it. 

Dominion and control means the defendant had the ability to 

reduce the item to actual possession immediately, or was 

otherwise able to govern its use or disposition as if in physical 

possession. Mere presence or proximity to the contraband is not 

enough. Constructive possession can be established by inferences 

derived from the totality of the circumstances.

Commonwealth v. Bowens, 265 A.3d 730, 741 (Pa.Super. 2021) (en banc) 

(cleaned up). “For the Commonwealth to prove constructive possession where 

more than one person has access to the contraband, the Commonwealth must 

introduce evidence demonstrating either the defendant’s participation in the 

drug-related activity or evidence connecting the defendant to the specific 

room or areas where the drugs were kept.” Commonwealth v. Hall, 199 

A.3d 954, 961 (Pa.Super. 2018) (cleaned up). While mere presence in a place 

where contraband is found is not sufficient, “presence at a scene where drugs 

are being processed and packaged is a material and probative factor which 

the [fact-finder] may consider.” Id. (cleaned up). 

Appellant argues that the trial evidence merely showed that he was 

present along with other people in the apartment where the contraband was 

recovered, and no evidence “rule[d] out the possibility that another individual 

possessed the contraband.” See Appellant’s brief at 16. He maintains that 

“virtually none of the contraband was in plain view,” and there was no 
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indication that Appellant, who did not reside in the apartment, was even aware 

of the drugs that were found inside cabinets and drawers.2 Id. at 17. 

Appellant posits that it makes no sense for him to have run into the kitchen 

when police arrived if he had known about the drugs and gun, because “if an 

individual is aware of the presence of illegal contraband and knows they are 

guilty of possessing such items, they would not run to and purposely place 

themselves in the area where all the contraband was found.” Id. at 18. 

Moreover, Appellant asserts that, even if he had known the contraband was 

present, no evidence established that he had any intent to control it. Id. at 

17.

Here, the police executed a search warrant where a CS had purchased 

illegal narcotics and where Appellant, by his own testimony, had recently 

spent more than half of each day. See N.T. Trial, 9/28-29/21, at 34, 68, 122. 

Appellant, who matched the description the CS gave of the drug dealer, did 

____________________________________________

2 Appellant also observed that no fingerprint or DNA evidence was recovered 

from the contraband to connect Appellant to it. See Appellant’s brief at 16. 

That type of forensic evidence would have been circumstantial evidence that 

Appellant had previously been in actual possession of the items, rather than 

evidence that Appellant merely had the conscious ability to reduce them to 

actual possession. Compare Commonwealth v. Bowens, 265 A.3d 730, 

741 (Pa.Super. 2021) (en banc) (“Constructive possession requires no proof 

that the defendant had been in actual possession of the contraband at another 

time.”), with Commonwealth v. Fudge, 213 A.3d 321, 329 (Pa.Super. 

2019) (“Whether [the defendant’s] fingerprints were present on the 

contraband is solely relevant to whether [he] was in actual, physical 

possession of the contraband.”). The distinction between evidence of 

constructive possession and evidence of past actual possession is often

overlooked in the litigation and decision of cases such as this one. 
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not comply with directions to put his hands in the air, but rather ran away

from the police grasping at his waistband. Id. at 68-71. A firearm was 

recovered from the kitchen floor, a few feet from where Appellant ultimately 

surrendered, one hand at a time, with an amount of cash on his person 

consistent with street-level drug distribution. Id. at 68-71, 108. Evidence 

that drugs were being packaged and processed was found out in the open in 

the kitchen, along with Appellant’s only personal effects in the apartment. Id. 

at 40-44. Further, Detective Slatcoff testified that “the discovery of a firearm 

and multiple cell phones, one of which belonged to Appellant and the other 

involved in the controlled buy, was significant,” along with the firearm “that 

drug dealers typically use . . . to protect their drug operation.” Trial Court 

Opinion, 8/9/22, at 12-13 (citing N.T. Trial, 9/28-29/21, at 106-08).

From this, the fact-finder was properly able to find that Appellant was 

not an innocent bystander, but rather was an active participant in the drugselling operation who exercised conscious dominion over the contraband 

associated with it. Accord Commonwealth v. Hall, 199 A.3d 954, 961 

(Pa.Super. 2018) (holding evidence was sufficient to establish the defendant’s 

constructive possession of contraband found, some in plain sight, in an 

apartment where others had been present). Appellant’s fleeing from police 

exhibited a consciousness of guilt which further supported an inference of 

knowledge and constructive possession. See, e.g., Commonwealth v. Cruz, 
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21 A.3d 1247, 1253 (Pa.Super. 2011). Therefore, we conclude that 

Appellant’s sufficiency challenge merits no relief. 

Appellant next contends that the verdicts are against the weight of the 

evidence. The following law applies to our consideration of that claim:

A motion for a new trial based on a claim that the verdict is against 

the weight of the evidence is addressed to the discretion of the 

trial court. A new trial should not be granted because of a mere 

conflict in the testimony or because the judge on the same facts 

would have arrived at a different conclusion. Rather, the role of 

the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny justice.

An appellate court’s standard of review when presented with a 

weight of the evidence claim is distinct from the standard of review 

applied by the trial court. Appellate review of a weight claim is a 

review of the exercise of discretion, not of the underlying question 

of whether the verdict is against the weight of the evidence.

Commonwealth v. Arias, 286 A.3d 341, 352 (Pa.Super. 2022) (cleaned up). 

Accordingly, our task is to determine whether the trial court, in ruling on 

Appellant’s weight challenge, “abused its discretion by reaching a manifestly 

unreasonable judgment, misapplying the law, or basing its decision on 

partiality, prejudice, bias, or ill-will.”3 Commonwealth v. Clay, 64 A.3d 

1049, 1056 (Pa. 2013) (cleaned up). 

____________________________________________

3 “We recognize the inherent incongruity in asking a trial judge to conclude 

that his non-jury decision shocked his own conscience. Nonetheless, this 

Court applies the same standard of review to weight claims regardless of 

whether the trial judge presided over a jury or non-jury trial.” 

Commonwealth v. Peters, 276 A.3d 226 (Pa.Super. 2022) (nonprecedential decision at 4 n.2)
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Appellant argues that the trial court abused its discretion in not granting 

a new trial because “Commonwealth witnesses presented contradictory and 

incredible evidence to which the trial court assigned too much weight, while 

not providing enough weight to [Appellant’s] own, credible testimony.” 

Appellant’s brief at 19-20 (cleaned up). For example, Appellant points to 

allegedly inconsistent testimony about whether he had been “wearing black 

pants or black sweatpants,” notes that no photographs were offered showing 

his clothing in the kitchen where the detectives said it was, and that 

“unconvincing evidence was presented to indicate that a controlled buy even 

occurred” before the warrant was issued. Id. at 22, 24. Appellant maintains 

that only his testimony, namely that his uncle made arrangements for 

Appellant to spend thirteen to fourteen hours each day with a neighbor who 

did not know Appellant, that the cash recovered from his person had been the 

paycheck of his drug-addict girlfriend with whom he had been having sex in 

said stranger-neighbor’s bathroom when the warrant was served, and that he 

inadvertently implicated himself by running away from the officers and into a 

contraband-infested room because it triggered fears from a previous home 

invasion of which Appellant was a victim, better matched the physical evidence 

and therefore should have been believed instead. Id. at 20-21. 

The trial court explained that it rejected Appellant’s testimony as 

incredible “because it defies common sense and every day common 

experiences.” Trial Court Opinion, 8/9/22, at 15. Further, the court opined 
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that it, “as fact finder, was presented with testimony from three witnesses and 

over twenty exhibits. There is nothing in the record to reflect that the court 

did not properly weigh this evidence, as further demonstrated by the court 

finding Appellant not guilty of the charge of criminal conspiracy.” Id. at 16. 

We discern no abuse of discretion by the trial court. Plainly, Appellant 

wishes this Court to make our own credibility determinations from a cold 

record and to weigh the evidence more favorably to him than the trial court

did. That is not our task. Our review of the certified record reveals that the 

trial court did not deny Appellant’s weight claim by “reaching a manifestly 

unreasonable judgment, misapplying the law, or basing its decision on 

partiality, prejudice, bias, or ill-will.” Clay, supra at 1056. Thus, no relief is 

due.

Next, Appellant challenges the denial of his pretrial suppression motion. 

We consider that claim mindful of the following:

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 are 

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.
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Commonwealth v. Young, 287 A.3d 907, 915-16 (Pa.Super. 2022) (cleaned 

up). 

Appellant asserts that his rights pursuant to the Fourth Amendment to 

the U.S. Constitution and Article I, § 8 of the Pennsylvania Constitution were 

violated because “the affidavit in support of the search warrant executed on 

709 Industry Street was unsupported by probable cause[.]” Appellant’s brief 

at 25. In that vein, we observe the following.

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 commonsense, 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). Our 

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

original). In other words, “[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.” Id. (cleaned up). 

When information essential to a finding of probable cause is 

garnered from the use of confidential informants, the issuing 

authority determines the reliability of the informant’s information 

from the facts supplied by the police official. The determination 

of reliability does not hinge on disclosed records regarding the 

track record of the informant. Furthermore, the affidavit need not 

contain the names, dates, or other information concerning prior 

arrests or convictions. The 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.

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

(cleaned up). 

Appellant maintains that the affidavit of probable cause proffered to 

obtain the warrant in the case sub judice “relied upon nothing more than the 

bare assertion that the [CS] was reliable.” Id. at 26. While he acknowledges 

that statements of a CS are sufficient if independently corroborated, Appellant 

insists that the surveillance conducted in this case was insufficient. Id. In 

particular, Appellant argues that the detectives did not witness Appellant sell 

narcotics during the controlled buy or at any other time, did not indicate that 

Appellant was even present at the residence during the controlled buy, or even 

substantiate that a controlled buy took place, given that neither the amount 
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nor serial numbers of the funds used was listed. Id. at 26-27. Finally, 

Appellant observes that, while the affidavit indicates that information from the 

CS led to four other arrests, it “does not specify whether those arrests actually 

led to any convictions.” Id. at 26. 

The suppression court rejected Appellant’s arguments, concluding that 

the affidavit of probable cause indicated both that the CS had provided reliable 

information in the past and that the police had independently corroborated it. 

As to reliability based upon prior tips, the court noted that there was no 

authority for the proposition that prior arrests stemming from the CS’s 

information led to convictions, “particularly when the other information 

provided in this matter are brought to light including the controlled buy and 

the detectives’ observations within a 48-hour period of seeking and obtaining 

the warrant.” N.T. Trial, 9/28-29/21, at 15-16. Even if the reliability of the

CS’s tip was not sufficiently established by past events, the court opined that 

sufficient corroboration was established by the procurement of narcotics from 

that apartment through the controlled buy and from the other information 

gleaned through the surveillance operation. Id. at 14-15. Therefore, the trial 

court held that the affidavit of probable cause established that there was a

reasonable likelihood that evidence of criminal activity would be found in the 

location specified in the warrant. We agree.

Detective Slatcoff’s affidavit of probable cause stated as follows 

regarding the CS’s history of reliability:
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Within the past week, [two detectives] and your affiant made 

contact with a reliable, confidential source who claimed to have 

knowledge of narcotics distribution occurring within the City of 

Pittsburgh. Your affiant has had many conversations with this 

individual who we will refer to as [the CS]. Based upon these 

conversations, your affiant has learned that he/she has been a 

drug abuser for many years. [The CS] is familiar with how heroin 

and crack cocaine are packaged, sold and ingested in the City of 

Pittsburgh. [The CS] has provided detectives with information and 

cooperation leading to search warrants and the seizure of 

narcotics, including as recently as 12/11/2019. The 

information/cooperation provided by [the CS] has led to the arrest 

of in excess of four individuals for felony drug offenses at both the 

state and federal levels. [The CS] has also used official police 

funds at detectives[’] direction to make controlled purchases of 

narcotics that has led to arrests. The information provided to your 

affiant and assisting detectives has been corroborated and found 

to be credible on numerous occasions for both ongoing and closed 

investigations. 

Affidavit of Probable Cause, 1/9/20, at 4 (cleaned up). The affidavit further 

detailed that it corroborated information supplied by the CS in this case, such 

as that a white male named Mike was the resident of the apartment, that a 

black male with distinctive long dreadlocks was staying there, and the quantity 

and nature of the foot traffic to the residence. Id. at 4-5. 

Hence, the affidavit established that the CS had supplied reliable 

intelligence in the past that was verified by not only arrests, but the seizure 

of narcotics from the locations searched pursuant to warrants secured upon 

the CS’s information. See, e.g., Commonwealth v. White, 457 A.2d 537, 

539 (Pa.Super. 1983) (“It is now axiomatic that prior arrests attributed to 

information supplied by the informant need not result in convictions to 

establish the credibility of the informant, or the reliability of his information. 
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. . . The essential fact is that the informant gave prior information implicating 

others in criminal activity which information proved to be correct.” (cleaned 

up)). 

When also considering the additional fact that the police conducted the 

controlled buy through which they observed the CS enter the residence in 

question and come out with narcotics, we have no hesitation in concluding 

that the issuing authority was presented with sufficient information to 

conclude that “given all the circumstances set forth in the affidavit there is a 

fair probability that contraband or evidence of a crime” would be found at 

Apartment 1 of 709 Industry Street. See Green, supra at 551 (cleaned up). 

Accord Dukeman, supra at 342 (holding affidavit provided adequate 

probable cause where informants, including one who had given information 

that led to past arrests and convictions, provided information about the 

presence and sale of drugs at a residence and police surveillance confirmed 

traffic consistent with drug sales). 

With his last issue, Appellant challenges the discretionary aspects of his 

sentence. Initially, the following legal principles govern our disposition of his 

claim:

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 
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(1) whether appellant has filed a timely notice of 

appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence; (3) whether appellant’s brief has a fatal 

defect [pursuant to] Pa.R.A.P. 2119(f); and (4) 

whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code.

Commonwealth v. Lucky, 229 A.3d 657, 663–64 (Pa.Super. 2020) (cleaned 

up).

Appellant filed a timely notice of appeal, preserved his issues in a timely 

post-sentence motion, and included a Rule 2119(f) statement in his brief. In 

his statement, Appellant asserts “that the sentencing court failed to consider 

and reference the statutory factors in 42 Pa.C.S. § 9721(b), and instead 

fashioned a sentence that only reflected the seriousness of the crime, which 

is contrary to the fundamental norms that underlie the sentencing process.”

4

 

Appellant’s brief at 12-13 (cleaned up). We agree that Appellant has stated a 

substantial question for our review. See, e.g., Commonwealth v. Riggs, 

____________________________________________

4 That statute provides, in relevant part that, in choosing from among the 

available sentencing alternatives:

the court shall follow the general principle that the sentence 

imposed should call for total confinement that is consistent with 

section 9725 (relating to total confinement) and the protection of 

the public, the gravity of the offense as it relates to the impact on 

the life of the victim and on the community, and the rehabilitative 

needs of the defendant. The court shall also consider any 

guidelines for sentencing and resentencing adopted by the 

Pennsylvania Commission on Sentencing[.]

42 Pa.C.S. § 9721(b).
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63 A.3d 780, 786 (Pa.Super. 2012) (holding substantial question was raised 

by claim that the court failed to consider all § 9721(b) factors and only focused

on one). 

Therefore, we turn to the merits of Appellant’s claim, mindful of the 

following. “When reviewing sentencing matters, this Court must accord the 

sentencing court great weight as it is in the best position to view the 

defendant’s character, displays of remorse, defiance or indifference, and the 

overall effect and nature of the crime.” Commonwealth v. Edwards, 194 

A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the 

sentencing factors and impose our judgment in the place of the sentencing 

court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). 

Thus, we review the trial court’s sentencing determination for an abuse of 

discretion. 

In this context, an abuse of discretion is not shown merely by an 

error in judgment. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). 

Although its discretion is broad, “the trial court’s discretion is not 

unfettered.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 

2011). The sentence imposed “should call for confinement that is consistent 

with the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 
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needs of the defendant.” 42 Pa.C.S. § 9721(b). “Where the sentencing court 

had the benefit of a [PSI] we can assume the sentencing court was aware of 

relevant information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors.” Commonwealth v. 

Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019) (cleaned up). 

Appellant maintains that the trial court “at no point took into 

consideration the protection of the public, the gravity of the offense in relation 

to the impact on the victim and the community, and the rehabilitative needs 

of the defendant, pursuant to 42 Pa.C.S. §9721(b).” Appellant’s brief at 32. 

He argues that the court failed to consider Appellant’s “substantial mitigating 

evidence presented by defense counsel about [Appellant]’s rehabilitative 

needs and the tremendous strides he took while incarcerated.” Id. Instead, 

Appellant urges that the court’s “sole focus was on the seriousness of the 

crime.” Id. at 34. 

The trial court addressed Appellant’s claims as follows:

At the outset, the court stated that it considered the [PSI] 

and read the sentencing guidelines into the record, thereby 

acknowledging the same. 

Additionally, it was presented to the court that Appellant has 

untreated mental health diagnoses, is the father of one child, and 

completed various programs while housed at the jail pending trial. 

The court acknowledged these rehabilitative needs and mitigation 

when it imparted:

And in imposing the sentence here, I have to balance 

his rehabilitative needs, which I think are significant, 

I think there is a component of this, and this is one of 

those unfortunate situations where I look at 
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[Appellant] and say, boy, if there had been an 

opportunity to intervene at an earlier point, some of 

this could have been avoided. He’s now 31, and he’s 

spent a substantial portion of his adult life 

incarcerated in some form. I’m not discounting the 

fact that he has rehabilitative needs, but his prior 

record score is significant. It’s all within his time as 

an adult, so it’s all within the last 12 or 13 years. One 

involves a crime of violence. One involves a felony 

involving drugs. These are convictions involving 

firearms and drugs. I do recognize that there is some 

mitigation in his background.

Moreover, the court could not have been clearer that it 

crafted a sentence in full consideration of 42 Pa.C.S. § 9721(b), 

when after referencing the nature of the crimes, along with 

Appellant’s rehabilitative needs and mitigation, it stated:

So I’ve tried to balance all of that, but I also believe 

and do agree with the Commonwealth that these are 

separate offenses. So the Court is going to impose 

mitigated range sentences at Count 1 and Count 2 

consecutively because I believe, while there is 

mitigation and the Court recognizes that there is 

hopefully a path for [Appellant] moving forward, these 

offenses are serious.

As illustrated above, this court properly and thoughtfully 

considered the statutory factors under § 9721. Appellant came 

before the court with a significant prior record score comprised of 

a crime of violence, robbery, and a prior conviction for possessing 

drugs with the intent to deliver. The available standard range 

sentence at Count 1 called for 6 years of incarceration, and at 

Count 2, 27 months of incarceration. It was in the exercise of the 

court’s discretion that it imposed two mitigated range sentences 

in acknowledgment of Appellant’s needs and mitigation, while 

running those terms consecutively to reflect the distinct and 

serious crimes committed by Appellant.

Trial Court Opinion, 8/9/22, at 17-19 (cleaned up). 

As the above, which is supported by the certified record, clearly reflects, 

the trial court committed no abuse of discretion or sentencing error. Appellant 
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equates the trial court’s lack of recitation on the record of certain factors it 

considered with a failure to have considered them at all. The two are not the 

same. The trial court, through review of the PSI, was presumptively aware of 

all pertinent information, see Hill, supra at 1117, and, as the above-quoted

discussion confirms, clearly considered all relevant factors. The court just

failed to weigh them the way Appellant preferred. It is not the role of this 

Court to substitute our judgment for that of the sentencing court and reweigh 

sentencing factors. See Macias, supra at 778. 

Since Appellant has not pointed to record evidence to show that the 

sentence was manifestly unreasonable or based upon “partiality, prejudice, 

bias or ill will,” we have no cause to disturb it. Antidormi, supra at 760. 

Therefore, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/9/2023