J-S78028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID EUGENE RICHARDSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 294 EDA 2018

Appeal from the Judgment of Sentence December 5, 2017

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

No(s): CP-15-CR-0002065-2016

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 26, 2019

David Richardson appeals from the judgment of sentence entered 

following his jury-trial convictions for persons not to possess firearms, 

possession of a controlled substance with the intent to distribute (“PWID”), 

possession of a controlled substance, and possession of drug paraphernalia.

1

Richardson argues the trial court erred in denying his motion to compel the 

identity of the confidential informant and erred in denying his motion to 

suppress, in which he argued the search warrant was not supported by 

probable cause. We affirm.

On March 17, 2016, Detective John DiBattista applied for a search 

warrant for a house located on Union Street in West Chester, Chester County

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. §§ 780-113(a)(30), 780-113(a)(16), 

and 780-113(a)(32), respectively.
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(“Union Street house”). The affidavit of probable cause detailed his experience 

as a police officer and detective and contained information about individuals 

who engage in drug trafficking. It described a controlled buy as: 

[A] purchase of illegal drugs that is characterized as follows: 

police give specific directions to the CI; police search the CI 

prior to him/her meeting with the suspect(s) to obtain a 

controlled substance to ensure that the CI does not possess 

any controlled substances or other contraband; prerecorded currency is provided to the CI to purchase the 

controlled substance; visual surveillance of the CI is 

maintained preceding and following the meeting with the 

suspect(s) to obtained the controlled substance to the 

extent possible; arrangements are made by police to meet 

the CI at a specified location following the meeting with the 

suspect(s); police retrieve any suspected controlled 

substance from the CI that was obtained from the 

suspect(s); police search the CI to ensure that he/she did 

not possess any additional controlled substances or other 

contraband; and a field-test of the suspected controlled 

substance is performed.

Affidavit of Probable Cause at 6. Detective DiBattista stated these protocols 

were followed in the controlled buys outlined in the Affidavit at issue in this 

case. Id.

The Affidavit then outlined the investigation conducted prior to applying 

for the search warrant. 

Detective DiBattista met with a CI who advised Detective DiBattista that 

he or she had purchased cocaine from multiple people inside the Union Street 

house over a period of several years. 

Between the dates of March 6, 2016 and March 8, 2016, Detective 

DiBattista met with the CI to conduct a controlled buy at the Union Street 
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house. Detective DiBattista provided $40 in pre-recorded currency. While 

under surveillance, the CI entered the Union Street house. Upon exiting he or 

she met Detective DiBattista at a pre-determined location. The CI provided 

two small plastic bags containing a white rock like substance suspected to be 

crack cocaine, which he or she had purchased at the Union Street house in 

exchange for the pre-recorded currency. The suspected crack field tested 

positive for crack cocaine.

Between March 9, 2016 and March 11, 2016, Detective DiBattista again 

met with the CI for a controlled buy. Detective DiBattista provided the CI with 

$20 in pre-recorded buy money. While under surveillance, the CI arrived at 

the Union Street house and entered. When he or she exited, the CI met 

Detective DiBattista at a predetermined location. The CI turned over a small 

sealed plastic bag containing suspected crack cocaine. The substance field 

tested positive for crack cocaine. 

On March 16, 2016, Detective DiBattista again met with the CI to 

conduct a controlled buy. Detective DiBattista provided the CI with $20.00 in 

pre-recorded money. While under surveillance, the CI went to the Union Street 

house and entered. After exiting, the CI met Detective DiBattista at a 

predetermined location, where he or she turned over a bag of suspected 

cocaine. The substance field tested positive for cocaine. 

The CI informed Detective DiBattista that he or she purchased the 

controlled substances from a different person for each controlled buy. 
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Based on the information provided in the Affidavit, the magistrate 

district judge granted the application for a search warrant. 

The police executed the warrant on March 18, 2016. In the front thirdfloor bedroom, the police recovered a 9 mm handgun with an obliterated serial 

number, a plastic bag of suspected crack cocaine, small plastic baggies, digital 

scales, latex gloves, and a plate with a razor blade and cocaine residue. N.T., 

8/23/17, at 56, 64, 66, 97, 117, 130. The police also recovered prescription 

medication bottles with Richardson’s name and his leather jacket from the 

front bedroom, id. at 62, 95, and found Richardson’s wife sleeping in the 

bedroom. Id. at 184. The police found Richardson and his father sleeping in 

the rear third-floor bedroom. Id. at 53. Richardson claimed that he only 

sometimes stayed at the house. Id. at 155-56. 

The police arrested Richardson and charged him with the abovereferenced offenses. The charges were based on the narcotics, paraphernalia, 

and firearm found while executing the search warrant. Information, filed 

6/27/16. Richardson filed a motion to suppress, claiming the search warrant 

was not supported by probable cause. He further filed a motion to disclose the 

identity of the CI. The trial court denied the motions. 

The trial court conducted a jury trial, at which the Commonwealth 

presented multiple exhibits and presented the testimony of Detective 

DiBattista, including his testimony as to the execution of the search warrant. 

A jury convicted Richardson of PWID, possession of a controlled substance,

and possession of a drug paraphernalia and the trial court found Richardson 
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guilty of possession of firearm by prohibited person. The trial court sentenced

Richardson to 78 to 168 month’s incarceration and one year probation. 

Richardson filed a timely notice of appeal. 

Richardson raises the following issues:

I. Whether the trial court erred by denying [Richardson’s] 

motion to compel identity of the Commonwealth’s 

confidential informant?

II. Whether the trial court erred by denying [Richardson’s] 

motion to suppress the search warrant and all evidence 

gained as a result of such search warrant?

Richardson’s Br. at 4.

Richardson argues that the name of the CI should have been provided 

to him. He claims the CI was an eyewitness and the CI could have exonerating 

evidence because he or she could testify to whether Richardson sold the drugs 

to the CI. 

We review a trial court’s order denying or granting a motion for 

disclosure of an informant’s identity for an abuse of discretion. 

Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa.Super. 2007).

Pennsylvania Rule of Criminal Procedure 573 provides the trial court with 

the discretion to require the Commonwealth to reveal the names and 

addresses of all eyewitnesses, including confidential informants, where a 

defendant makes a showing of material need and reasonableness:

(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 
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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).

Where the informant was not an eyewitness, “the extent of the court’s 

discretion is specified more broadly by case law.” Withrow, 932 A.2d at 140. 

We have stated there is no fixed rule with respect to when disclosure of a 

confidential informant’s identity is justified, noting:

The problem is one that calls for balancing the public 

interest in protecting the flow of information against the 

individual’s right to prepare his defense. Whether a proper 

balance renders nondisclosure erroneous must depend on 

the particular circumstances of each case, taking into 

consideration the crime charged, the possible defenses, the 

possible significance of the informer’s testimony, and other 

relevant factors.

Id. (quoting Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa.Super. 

2001)).

Further, “regardless of whether the informant was an eyewitness to the 

transaction for which the defendant was charged, the Commonwealth retains 

a qualified privilege not to disclose an informant’s identity.” Id. at 140-41. 

“To overcome that privilege, the defendant must show that his request for 

disclosure is reasonable and that the information sought to be obtained 

through disclosure is material to the defense.” Id. at 140. “[T]he defendant 

need not predict exactly what the informant will say,” but “must demonstrate

at least a reasonable possibility the informant’s testimony would exonerate 

him.” Id. Only if the defendant shows the information is material and the 
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request reasonable will the trial court be “called upon to determine whether 

the information is to be revealed.” Id. (citing Belenky, 777 A.2d at 488).

The Pennsylvania Supreme Court has found that where the charges are 

based on one drug transaction, the only eye witnesses to the transaction are 

a police officer and the CI, and the defendant raises a misidentification 

defense, the defendant has established the materiality of the CI’s testimony.

See, e.g., Commonwealth v. Roebuck, 681 A.2d 1279, 1284-85 (Pa. 

1996).

In contrast, where the charges are based on evidence discovered during 

the execution of a search warrant, and not based on a drug transaction, courts

have found the defendant failed to establish the materiality prong. For 

example, in Withrow, this Court found that the trial court erred in granting

the motion to disclose the identity of the CI who had witnessed the defendant 

and a police officer engage in a drug transaction because the drug transaction 

was not the basis of the charges. 932 A.2d at 141, 143. There, the charges

were based on the multiple packets of cocaine and heroin discovered while 

executing a search warrant in the home. Id. at 142. The court noted that the

“CI was not an eye witness to the offense with which the defendant was 

charged.” Id. at 141. Courts have reasoned that where a defendant is charged 

with offenses resulting from a search, and the application of the search 

warrant did not depend on the identity of the person who sold the drugs, then, 

regardless of whether the defendant sold the drugs, the search of the 

residence would have occurred. Id. (quoting Belenky, 777 A.2d at 489).
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Further, courts have noted that CIs are not present at the time a warrant is

executed and “could add nothing to the question of identity [at the execution 

of the warrant], which is the only identity relevant to guilt.” Id. at 142 

(quoting Belenky, 777 A.2d at 489).

Here, the trial court denied the motion to disclose the identity of the CI 

because Richardson failed to demonstrate the identity of the CI was material 

to his defense, reasonable, and in the interests of justice. 1925(a) Op. at 4. 

Richardson claimed the CI could provide information related to Richardson’s 

defense of constructive possession, that is, the house was not his permanent 

residence, and provide testimony that the CI had not seen Richardson at the 

house. Id. at 5. The trial court noted that there were a number of possible 

witnesses that could testify as to where Richardson resided. Id. The court 

concluded the CI “had no information to offer regarding the facts relied upon 

by the Commonwealth in tying [Richardson] to the contraband found in the 

third floor front bedroom, including but not limited to a firearm and cocaine, 

which formed the basis of the charges against Richardson.” Id. at 5.

This was not an abuse of discretion. The charges were based on the 

contraband discovered during the execution of the search, not the transactions 

with the CI. The CI’s testimony was not material to any charge or defense.

See Withrow, 932 A.2d at 141, 143.

Richardson next claims the search warrant was not supported by 

probable cause, arguing the CI’s reliability is suspect, as the affidavit does not 

contain details as to how the CI had been deemed reliable.
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Here, the judge who presided over the trial had retired prior to the filing 

of Richardson’s concise statement of issues on appeal and therefore a different 

judge issued the Rule 1925(a) opinion. In the Rule 1925(a) opinion, the court 

found that it was unable to address Richardson’s claim that the court erred in 

denying his motion to suppress because the certified record did not contain 

an order addressing Richardson’s motion or a transcript of any hearing on the 

motion. 1925(a) Op. at 6. The court concluded it was unable to discern the 

basis of the prior court’s decision. Id.

We conclude Richardson has waived his challenge to the denial of the 

motion to suppress. The certified record does not contain an order on the 

motion to suppress or any transcript of the proceedings. Further, the docket 

does not contain an order, and the docket lists notes of testimony filed for the 

trial and for other hearings, but not for a hearing on the motion to suppress. 

Because the certified record does not contain the order or the notes of 

testimony, we conclude this issue is waived. Commonwealth v. Martz, 926 

A.2d 514, 525 (Pa.Super. 2007) (finding where “[a]ppellant is remiss in 

fulfilling the duty to provide a record which is sufficient to permit meaningful 

appellate review as is the case here, the issue raised challenging the 

sufficiency of the evidence will be deemed waived”).

Further, even if not waived, we would conclude that the search warrant 

was supported by probable cause.

A search warrant must be supported by probable cause. U.S. Cont. 

amend. IV; Pa.Const. Art. I, § 8. “Probable cause exists where the facts and 
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circumstances within the affiant’s knowledge and of which he has reasonably 

trustworthy information are sufficient in themselves to warrant a man of 

reasonable caution in the belief that a search should be conducted.” 

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting 

Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)).

“In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 

(1983), the United States Supreme Court established the ‘totality of the 

circumstances’ test for determining whether a request for a search warrant 

under the Fourth Amendment is supported by probable cause.” Jones, 988 

A.2d at 655. The Pennsylvania Supreme Court adopted this test for purposes 

of making and reviewing probable cause determinations under Article I, 

Section 8. Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986).

The Pennsylvania Supreme Court has described this test as follows:

Pursuant to the “totality of the circumstances” test set forth 

by the United States Supreme Court in Gates, the task of 

an issuing authority is simply to make a practical, commonsense decision whether, given all of the circumstances set 

forth in the affidavit before him, including the veracity and 

basis of knowledge of persons supplying hearsay 

information, there is a fair probability that contraband or 

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

It is the duty of a court reviewing an issuing authority’s 

probable cause determination to ensure that the magistrate 

had a substantial basis for concluding that probable cause 

existed. In so doing, the reviewing court must accord 

deference to the issuing authority's probable cause 

determination, and must view the information offered to 

establish probable cause in a common-sense, non-technical 

manner.

. . .
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[Further,] 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.

Jones, 988 A.2d at 655 (quoting Commonwealth v. Torres, 764 A.2d 532, 

537–38, 540 (Pa. 2001)) (some alterations in original).

In Commonwealth v. Clark, the Pennsylvania Supreme Court found 

“probable cause to support the search warrant existed, even though the 

affidavit contained no explicit recitation whether the CI had previously 

supplied information leading to arrests, or whether the CI had previously been 

inside the subject residence, or whether the Appellee had told the CI there 

were drugs in the residence.” 28 A.3d 1284, 1292 (Pa. 2011). There, the court 

concluded probable cause existed “because the information provided by the 

CI, namely that [the defendant] was packaging and distributing cocaine out 

of his residence, was corroborated by independent police investigation.” Id.

There, “the police observed Appellee depart his residence, go directly to the 

site of a pre-arranged controlled buy, exchange cocaine for money, and return 

directly to his residence,” and the court concluded “[a] common sense, nontechnical reading of these facts properly established a fair probability that 

contraband or evidence of a crime would be found in the residence.” Id.
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Here, the trial court did not abuse its discretion in denying the motion 

to suppress.2 The Affidavit contained information supporting the probable

cause determination. In the Affidavit, Detective DiBattista described controlled 

buys in general and the three controlled buys conducted in this case, during 

which the CI purchased controlled substances from the Union Street House. 

The Affidavit detailed that for each controlled buy the police officers searched 

the CI prior to the buy, provided the CI with pre-recorded money, and 

conducted surveillance. Further, after each controlled buy, the CI produced 

controlled substances purchased from the Union Street house. Such 

information supported the reliability of the CI and provided probable cause to 

believe “that contraband or evidence of a crime will be found in” the Union 

Street house.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/19

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2 As the evidence obtained from execution of the search warrant was admitted 

at trial, it is clear the court denied the motion. Further, although we do not 

know the basis of the trial court’s decision, we may affirm the trial court on 

any basis. See In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011) (“[This 

Court is] not bound by the rationale of the trial court, and may affirm on any 

basis.”).