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

v.

DAVID EUGENE RICHARDSON

Appellant : : : : : : : : : 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 2 6 , 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 inten t 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 Di Battista applied for a search
warrant for a house located on Union Street in West Chester, Chester County

_________________ __________ ______ ____ _______ * Former Justice specially assigned to the Superior Court.

1 18 P a.C.S.A. § 6105(a)(1) and 35 P.S. §§ 780

- 113(a)(30), 780

- 113(a)(16), and 780

- 113(a)(32), respectively.J

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(“Unio n Street house”)

. The affidavit of probabl e 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; p re recorded 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 a re 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 pos sess any additional controlled substances or other contraband; and a field

- test of the suspected con trolled substance is performed. Affidavit of Probable Cause at 6. Detective Di Battista 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 Di Battista met with a CI who advised Detective Di Battista that he or she had purchased cocaine f ro m multiple people inside the Union Street house over a period of several years. Between the dates of March 6, 2 0 16 and March 8, 2016, Detective
Di Battista met with the CI to conduct a control led buy at the Union StreetJ

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house . Detective Di Battista provide d $40 in pre

- recorded currency. While under surveillance, the CI entered the Union Street house. Upon exiting he or she met Detective Di Battista at a pre

- determined location. The CI provided two small plastic bags containing a white rock like substance sus pected 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 cocain e . Between March 9, 2016 and March 11, 2016, Detective Di Battista agai n met with the CI for a controlled buy. Detective Di Battista 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 exi ted, the CI met
Detective Di Battista at a pre determined 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 Di Battista again met with the CI to conduct a controlled buy. Detec tive Di Battista provided the CI with $20.00 in
pre - record ed money. While under surveillance, the CI went to the Union Street house and entered. After exiting, the CI met Detective Di Battista 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 Di Battista that he or she purchased the controlled substances from a different person for each controlled buy.J

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Based on the information provided in the Affid avit, the magistrate district judge granted the application for a search warrant. The police executed the warrant on March 18, 2016. In the front third

floor 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 r azor blade and cocaine residue

. N.T., 8/23/17 , at 56 , 64, 66, 97 , 117, 130

. The police also recovered p rescription medication bottles with Richardson’s name and his leather jacket from the front bedroom, i

d. at 62, 95 , and found Richardson’s wife sleeping in the bedroom. I

d . at 184

. The police found Richardson and his father sleeping in the rear third

- floor bedroom. Id. at 53

. Richardson clai med that he only sometimes stayed at the house. Id. at 155

- 56

. The police arrested Richardson and charged him with the above

reference d offenses. The charges were based on the narcotics, paraphernalia, and firearm found while execut ing 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 Detecti ve Di Battista , including his testimony as to the execution of the search warrant.
A jury convicted Richardson of PWID, possessi on of a controlled substance , and possession of a drug paraphernalia and the trial court found RichardsonJ

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guilty of possession of firearm by prohibited person . The trial court sentence d 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 co urt’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 discr etion 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 Comm onwealth to allow the defendant’ s attorney to inspect and copy or photograph anyJ

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- of the following requested i tems, 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 c ourt’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 justifi ed , noting:

The problem is one that calls for balanci ng 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. B elenky , 777 A.2d 483, 488 (Pa.Super. 2001) ). Further, “r egardless 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. “T o 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] h e defendant need not predict exactly what the informant will say, ” but “m ust demonstrate at least a reaso nable possibility the informant’s testimony would exonerate him

. ” Id. Only if the defendant shows the information is material and theJ

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request reasonable will the trial court be “ called upon to determine whether the information is to be rev ealed.” 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 misident ification 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 searc h warrant, and not based on a drug transaction, court s have found the defendant failed to establish the materiality prong. For example, i n 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 w hile 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 fr om 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.2 d at 489).J

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Further , courts have noted that C I s 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 Belenk

y , 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
witness es 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 contr aband 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 discovere d 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, arguin g the CI’s reliability is suspect, as the affidavit does not
contain details as to how the CI had been deemed reliable.J

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Here, the judge who presided over the trial had re tired prior to the filing of Richardson’s concise statement of issues on appeal and t herefore 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 d ocket 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, w e conclude this issue is waived. Commonwealth v. Martz , 926
A .2d 514, 525 (Pa.Super. 200 7 ) ( 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 e vidence 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. A rt. I, § 8. “Probable cause exi sts where the facts andJ

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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 determina tions 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, common

sense 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, th ere 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 issu ing 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 manne r.

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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, e ven 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 inde pendent police investigation. ” Id. There, “ t he police observed Appellee depart his residence, go directly to the site of a pre

- arranged controlled buy, exchange cocaine for money, and r eturn directly to his residence,” and the court concluded “[a] common s ense, non technical reading of these facts properly established a fair probability that contraband or evidence of a crime would be found in the resi dence.” Id.J

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Here, the trial court did not abuse its discretion in denying the motion to suppress. 2 T he Affi davit contained information supporting the probabl e cause determination. In the Affidavit, Detective Di Battista described controlled buys in general and the three controlled buys conducted in this case, during which the CI purchased controlled substances f rom the Union Street House. The A ffidavit 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

c ontrolled 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 wil l be found in” the Union Street house. Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 3/26/19

_________________ __________ ______ ____ _______ 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 J acobs , 15 A.3d 509, 509 n.1 (Pa. Super. 2011) (“[This Court is] not bound by the ration ale of the trial court, and may affirm on any basis .”).