J-A29019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS EVANS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 451 WDA 2019

Appeal from the Judgment of Sentence Entered, January 7, 2019,

in the Court of Common Pleas of Washington County, Criminal Division at No(s): CP-63-CR-0000787-2016.

COMMONWEALTH OF PENNSYLVANIA

v.

CARLOS EVANS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 452 WDA 2019

Appeal from the Judgment of Sentence Entered, January 7, 2019,

in the Court of Common Pleas of Washington County, Criminal Division at No(s): CP-63-CR-0000816-2016. BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.* MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 06, 2020

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* Retired Senior Judge assigned to the Superior Court.
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Carlos Evans appeals from the judgment of sentence imposed after the

court found him guilty of one count of possession of a controlled substance

with intent to deliver at two different docket numbers.1 After careful review,

we affirm.

Evans’ convictions arose after he sold drugs to a confidential informant

and police subsequently searched his apartment. The trial court set forth the

facts for the first charge as follows:

Regarding case 816-2016, police officer Nicholas Powell

("Powell") testified that the Washington County Drug

Taskforce (WCDT) was conducting operations to investigate

sales of contraband substances in the City of Washington.

Pursuant to this effort, Powell used a [Confidential

Informant (“CI”)] to engage a controlled purchase of heroin

from [Evans] on January 6, 2016. According to Powell, he

and several other members of the WCDT, including Police

Detective Michael Manfredi (Manfredi), determined that the

CI would contact [Evans] by telephone to arrange a meeting

for the purchase of heroin. Manfredi, a certified officer

under the Wiretap Act who is permitted to engage consented

recording by one party, testified that he filed a written

request with the Washington County District Attorney to

make telephonic and video recordings involving the CI and

[Evans]. Powell explained that prior to the controlled heroin

purchase, he and Manfredi physically searched the CI to

ensure that the CI had no controlled substances on his

person. Further, Powell and Manfredi searched the CI's

entire automobile, including areas that might be hidden

compartments, to ensure that it did not contain any

controlled substances. According to Powell, no one other

than the CI was in the CI's car after the search. After the

completed searches, the CI called [Evans] to arrange the

purchase. [Manfredi recorded this call. He also listened to

____________________________________________

1 35 P.S. § 780-113(a)(30).
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the conversation between the CI and Evans]. Evans did not

answer the CI's first phone call, but did answer the CI's

second call. In this conversation, Evans instructed the CI to

meet at the Exxon gas station at the intersection of Murtland

and Ridge Avenues in the City of Washington. To complete

the expected transaction, the CI was provided $100 in

marked bills in denomination of $20 and $10.

According to Powell, the CI entered his car and drove to

Exxon. Powell testified that he followed the CI in his vehicle

to the Exxon station and stationed himself on Ridge Avenue

approximately 50 yards away from the Exxon station.

Manfredi testified that he too followed the CI from the time

he entered his car until he arrived at the Exxon station. [Manfredi testified that he placed a video recording key fob

on the dashboard of the CI's car and instructed the CI that

it needed to be positioned in such a manner in order to

record Evans’ face. For some unknown reason, the fob

moved and never recorded the face of Evans, nor any hand

movements during the transaction.] Manfredi positioned

himself on Murtland Avenue directly across the street from

the Exxon station, also about 50 yards from the CI's car.

Manfredi testified the CI was always within his sight.

Powell and Manfredi testified that they both observed

Evans walking north on Murtland toward the Exxon station,

entering the gas station parking lot, approaching the CI's

car, and then entering the car from the front passenger

door. Manfredi testified that no other person entered the

CI's car from the time he installed the key fob recorder other

than the CI. Both [officers] testified very soon after [Evans]

entered the car, the CI then drove himself and [Evans]

south on Ridge Avenue from Exxon, turning west (right)

onto Coremont Avenue, turning north onto Kennedy

Avenue, and stopping at the intersection of Kennedy and

Murtland Avenues. [Evans] then exited the CI's car.

The CI proceeded to a designated neutral location.

Powell and Manfredi followed the CI to the neutral location

without the CI leaving his [sic] sight and the CI did not stop

until he reached the designated neutral location. Upon

reaching the location, Powell and Manfredi exited their

respective cars' and went to the CI's car. At that time, the

CI presented Powell with 9 stamp bags of heroin and the
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bags were stamped "MVP" in green lettering. Manfredi

recovered the recording key fob.

Trial Court Opinion, 3/13/19, at 2-4 (citations to the record and footnotes

omitted).

The facts surrounding the second docket number occurred two days

later; the trial court summarized those facts as follows:

With respect to case number 787-2016, on January 8, 2016,

Powell and several other officers, including [Evans’] state

parole officer, drove to the [Evans’] apartment (375 Locust

Avenue, Apartment 8, Washington, Pennsylvania) to arrest

him for the distribution of heroin to the CI. [Evans]

answered the knock on the door and the officers entered

[Evans’] apartment to make the arrest, which took place in

the apartment entryway. Powell testified that as the arrest

was taking place and [Evans] was being handcuffed, he

conducted a protective sweep of the small apartment that

consisted of a living room, kitchen, bathroom and one

bedroom.

During the protective sweep, Powell noticed a gun holster

inside a nightstand drawer while standing in the hallway

leading to the bedroom. Powell testified that he was able to

see into the bedroom because the bedroom door was open

and that the nightstand drawers had clear panels, thereby

allowing one to see inside. Knowing that the Defendant was

a convicted felon and unable to legally possess a handgun,

Powell determined that he should request a search warrant

from the Court. Powell submitted an affidavit of probable

cause in support of a search warrant request to the Court

on January 8, 2016, which the Court granted. A search of

the apartment was then conducted pursuant to the search

warrant and contraband including controlled substances was

located. [The contraband consisted of 350 stamp bags of

heroin and 25 grams of crack cocaine located under the

pillow on Evans’ bed, a digital scale and 25 bags of heroin

in the Evans’ kitchen, a revolver holster and $1,400 in cash

in the Evans’ bedroom, 8 bricks of heroin and 1 ounce of

crack not under the bed pillow.]
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Trial Court Opinion, 3/13/19, at 4 (citations to record and footnote omitted).

Evans filed an omnibus pretrial motion seeking habeas corpus relief and

the suppression of evidence. The trial court held an evidentiary hearing

November 7, 2016, after which it denied the motion. Following a consolidated

non-jury trial, the court convicted Evans of one count of possession of a

controlled substance at each docket number. On January 7, 2019, the trial

court imposed an aggregate sentence of thirty to sixty months of incarceration

and a consecutive two-year probationary term. This timely appeal followed.

The trial court did not require Pa.R.A.P. 1925 compliance, and instead cited to

its March 13, 2019 opinion, as its Rule 1925(a) opinion.

Evans raises the following nine issues on appeal:

I. Did the trial court err in not granting the oral motion to

reconsider the Motion to Suppress when new evidence,

adduced through trial testimony, revealed that mandatory

discovery disclosure concerning the authority for a wiretap

was not produced to [Evans'] counsel?

II. Did the trial court err in denying [Evans'] pretrial Motion

to Suppress in its Order of Court dated November 14, 2016

in concluding that a search warrant was not necessary to

search Apartment 8 because Evans was a parolee and that

alternatively, sufficient probable cause existed to issue a

search warrant?

III. Did the trial court err in denying the pretrial Motion to

Suppress and undersigned counsel's Motion to Suppress at

the conclusion of trial and thereby permitting introduction

into evidence items illegally seized from Apartment 8?

IV. Did the trial court err in denying the Motion to Suppress

the fruits of the search warrant executed on Apartment 8,

made at the conclusion of trial as Powell included references

to evidence in the affidavit of probable cause that were fruits

of illegal searches and seizures by law enforcement?
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V. Did the trial court err in denying the Motion to Suppress

the fruits of the search warrant executed on Apartment 8,

made at the conclusion of trial, as Powell omitted from the

affidavit of probable cause the fact that the video recording

made within the CI's vehicle does not identify Evans or

reveal a sale of heroin?

VI. Did the trial court err in [case No. 816-2016] in

concluding there was sufficient evidence to convict Evans

beyond a reasonable doubt on the charge of possession with

intent to deliver a controlled substance?

VII. Did the trial court err in [case No. 816-2016] in

rendering a guilty verdict on the charge of possession with

intent to deliver a controlled substance that was against the

weight of the evidence?

VIII. Did the trial court err in [case No. 787-2016] in

concluding there was sufficient evidence to convict Evans

beyond a reasonable doubt on the charge of possession with

intent to deliver a controlled substance?

(IX. Did the trial court err in [case No. 787-2016] in

rendering a guilty verdict on the charge of possession with

intent to deliver that was against the weight of the

evidence?

Evans’ Brief at 7-9.

In his first five issues, Evans challenges the trial court’s denial of his

motion to suppress the evidence obtained from his alleged interaction with the

confidential informant and the subsequent search of his apartment.2 When

we review the ruling of a suppression court:

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2 Evans consolidates his argument with regard to issues three through five.

The pertinent procedural rules do not permit him to do so. See generally,

Pa.R.A.P. 2119(a). Notwithstanding this procedural error, we will not find

waiver and address Evans’ second through fifth issues together.
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we must determine whether the factual findings are

supported by the record. When it is a defendant who has

appealed, we must consider only the evidence of the

prosecution and so much of the evidence for the defense as,

fairly read in the context of the record as a whole, remains

uncontradicted. Assuming that there is support in the

record, we are bound by the facts as are found and we may

reverse the suppression court only if the legal conclusions

drawn from those facts are in error.

Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019). “[A]ppellate courts

are limited to reviewing only the evidence presented at the suppression

hearing when examining a ruling on a pretrial motion to suppress.” Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017)

(citation omitted).3

In his first issue, Evans claims that the trial court erred in not granting

his oral motion at trial to reconsider his previously denied suppression motion

based upon the revelation of new evidence. Specifically, based on Manfredi’s

testimony on cross-examination, Evans believes the district attorney’s office

generated a written approval of Manfredi’s request to conduct an audio and

visual recording of the drug transaction. See N.T., 10/15/18, at 173.

According to Evans, Manfredi had no explanation why this document was not ____________________________________________

3 We note that at the conclusion of the suppression hearing, the court did not

enter “on the record a statement of findings of fact and conclusions of law” as

required by Pa.R.Crim.P 581(I). In such a case, we “are constrained to focus

our review” on the trial court’s Pa.R.A.P. 1925(a) opinion. Commonwealth

v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002 (en banc). Thus, we

consider trial court’s factual summaries reproduced infra when addressing

Evans’ suppression issues.
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produced in discovery. Evans contends that, by not producing it, the

Commonwealth failed to prove the recording of the telephone calls placed by

the CI were consensual under the Wiretap Act, 18 Pa.C.S.A. §§ 5701-5782,

and thus, the recordings were not admissible at trial.

As this Court has recently summarized:

[T]he Wiretap Act is to be strictly construed to protect

individual privacy rights because it derogates a fundamental

Pennsylvania constitutional right—the right to privacy.

Given that private conversations are [being] overheard by

government authorities, courts should closely scrutinize law

enforcement authorities for strict compliance with the Act’s

requirements. In establishing a violation of the Wiretap Act,

a defendant is not required to establish actual prejudice.

Commonwealth v. Shreffler, 201 A.3d 757, 764 (Pa. Super. 2018)(citations

and footnote omitted).

Section 5704 of the Wiretap provides exceptions when law enforcement

has complied with certain procedural safeguards. Section 5704 reads, in

pertinent part:

§ 5704. Exceptions to prohibition of interception and

disclosure of communications

It shall not be unlawful and no prior court approval shall

be required under this chapter for: ***

(2) Any investigative or law enforcement officer or any

person, acting at the direction or request of an investigative

or law enforcement officer to intercept a wire, electronic or

oral communication involving suspected criminal activities,

including, but not limited to, the crimes enumerated in

section 5708 (relating to order authorizing interception of

wire, electronic or oral communications), where:
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***

(ii) one of the parties to the communication has given

prior consent to such interception. However, no interception

under this paragraph shall be made unless the Attorney

General or a deputy attorney general designated in writing

by the Attorney General, or the district attorney, or an

assistant district attorney designated in writing by the

district attorney, of the county wherein the interception is

to be initiated, has reviewed the facts and is satisfied that

the consent is voluntary and has given prior approval for the

interception; however, such interception shall be subject to

the recording and record keeping requirements of section

5714(a) (relating to recording of intercepted

communications) and that the Attorney General, deputy

attorney general, district attorney or assistant district

attorney authorizing the interception shall be the custodian

of recorded evidence obtained therefrom;

18 Pa.C.S.A. § 5704(2)(ii). In addressing this issue, the trial court first acknowledged that a trial

court may revisit a suppression issue at trial. See Trial Court Opinion at 5

(citing In re L.J., 79 A.3d 1079 (Pa. 2013), and Commonwealth v.

DeMichel, 277 A.2d 159 (Pa. 1971)).4 However, the trial court found Evans’

renewed suppression claim lacked merit because section 5704(2)(ii) did not

require that the district attorney’s approval of the interception to be in writing.

After citing Section 5704(2)(ii), the trial court stated:

Herein, Manfredi testified that he drafted a written request

to make the recordings aforementioned. At trial, Manfredi

produced said written request and provide it to Defense

counsel during cross-examination. [Neither party asked

that Manfredi’s written request be moved into evidence.]

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4

In light of these decisions, we reject the Commonwealth’s claim that Evans

waived this issue. See Commonwealth’s Brief at 14; Pa.R.Crim.P. 581(J).
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Further, Manfredi testified that he met with the District

Attorney’s office to get the approval and was approved to

conduct the recordings. The Court found Manfredi’s

testimony to be credible. Moreover, the aforementioned

statute does not require that the District Attorney’s approval

be in writing. The only written requirement in 18 Pa.C.S.A.

§ 5704(2)(ii) is that an assistant district attorney may

approve a law enforcement officer’s request if [the assistant

district attorney is] “designated in writing by the district

attorney.”

Trial Court Opinion, 3/13/19, at 6 (footnote omitted).

In arguing to the contrary, Evans does not challenge the trial court’s

conclusion that the district attorney’s approval need not be in writing; instead

he claims Manfredi testified, on cross-examination, that he believed the

Commonwealth had generated written approval in this case and Evans was

not provided with a copy of the writing. Relying on this Court’s recent decision

in Shreffler, supra, Evans claims that the mandatory rules of discovery

require disclosure of the written authority during the discovery process. In

that case, Shreffler contended that the trial court erred in failing to suppress

the Commonwealth’s wiretap recordings of his conversations with a

confidential informant, which occurred inside his home, because the

Commonwealth failed to comply with the disclosure provisions regarding

mandatory discovery, Pa.R.Crim.P. 573(B)(1)(g), and the Wiretap Act. The

trial court denied the suppression motion, and Shreffler appealed.

In support of his claim, Shreffler asserted that the order authorizing the

in-home wiretap was subject to mandatory discovery under Pa.R.Crim.P.

573(B)(1)(g). Shreffler claimed he needed that document in order to properly
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challenge the validity of the wiretap application. Without that document,

Shreffler believed his cross-examination of the affiant at the suppression

hearing “was unduly limited.” Shreffler, 201 A.3d at 762.

In addressing Shreffler’s claims, this Court initially set forth both the

principles of statutory construction, and Section 5715 of the Crimes Code

which provides, inter alia, that “sealed wiretap applications, final reports, and

orders authorizing wiretaps may be disclosed only upon a showing of good

cause[.]” We noted that the disclosure requirements of Section 5720 were

inconsistent with the rules of criminal procedure because Rule 573(B)(1)(g)

“mandates the disclosure of the ‘authority’, i.e., the application and order for

the one-party consent wiretap as part of the Commonwealth’s mandatory

discovery requirements.” Id. at 766. Therefore, we concluded that the

Commonwealth violated the mandatory discovery rules by failing to disclose

“the authority” for the wiretap of Shreffler’s home.

To remedy this violation, we vacated Shreffler’s judgment of sentence

and remanded for a new suppression hearing. We stated:

Given our Supreme Court’s admonition that the Wiretap

Act must be strictly construed to preserve the fundamental

Pennsylvania constitutional right of privacy, [Shreffler] need

not establish any prejudice from the Commonwealth’s

procedural violations. Accordingly, having discerned an

error of law, we are reluctantly compelled to vacate

[Shreffler’s] judgment of sentence, vacate the order

denying [Shreffler’s] post-sentence motion, vacate the []

order denying [Shreffler’s suppression] motion, and remand

for a new suppression hearing. The Commonwealth must

file a motion to unseal the affidavit of probable cause, order

authorizing the wiretap, and documentation evidence
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consent, and also provide them to [Shreffler’s] counsel.

[Shreffler’s] counsel may file an amended motion to

suppress based upon the unsealed documents and the trial

court has the discretion to hold a new suppression hearing.

Shreffler, 201 A.3d at 767 (citation omitted).

In this case, Evans seeks the same relief because the Commonwealth

did not provide him with the authority for the wiretap, despite repeated

requests for discovery. He argues: “In the absence of such documentation,

counsel cannot explore the voluntariness of the wiretap especially since the

CI never testified.” Evans’ Brief at 28. He further claims:

While the Commonwealth might be right that the rules of

evidence may not require such production, the rules of

discovery do require such production and [the Superior]

Court in Shreffler solidified that requirement under

Pa.R.Crim.P. 573(B)(1)(g). Manfredi testified that

documentation of the authorization was created, but the

record reveals it was never produced.

Id. at 29 (citation omitted). Based on Shreffler, Evans maintains that his

judgment of sentence at Case No. 816-2016 should be vacated and this matter

remanded for a new suppression hearing. The Commonwealth contends that the facts of this case are

distinguishable from Shreffler. We agree. Unlike the in-home wiretap, and

the required written court approval pursuant to Section 5704(2)(iv), the audio

and video recordings in this case, pursuant to Section 5704(2)(ii) did not

require “prior court approval.” Moreover, although the trial court stated that

it found Manfredi’s testimony regarding the approval of the wiretap credible, the court did not expressly accept the detective’s response, upon cross-
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examination by trial counsel, that the Commonwealth gave written approval.

See Commonwealth v. Krisko, 884 A.2d 296, 299 (Pa. Super. 2005)

(citation omitted) (explaining “it is exclusively the province of the suppression

court to determine the credibility of the witnesses and the weight to be

accorded their testimony”). This is understandable, since the trial court

concluded that written approval was not required under the Wiretap Act.

We further agree with the Commonwealth that, unlike the wiretap

approved in Shreffler, here the Commonwealth fully complied with Section

5720 of the Wiretap by providing to Evans in discovery “‘notice of the fact and

nature of the interception.’” Commonwealth’s Brief at 15. In his reply brief,

Evans insists that a discovery violation was the basis for the remand in

Shreffler rather than a failure to disclose under Section 5720. See Evans

Reply Brief at 7-9. Although this may be true, the instant matter did not

involve sealed documents like in Shreffler did. As noted infra, relevant

provision of the Wiretap Act in this case does not require documentation of

the “authority” for the consensualized recording. Thus, Evans’ first issue fails.

In his second issue, Evans challenges the search of his apartment.

Initially, we note that the officers in this case conducted two searches. First,

a cursory protective sweep incident to Evans’ arrest and, second, a more

detailed search pursuant to a warrant. Evans contends that the protective

sweep was not necessary because the officers could have secured the
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premises and later obtained a search warrant.5 He further argues that, although the officers claim they conducted a protective sweep, they exceeded

the cursory nature the law permits in this type of search and, in doing so, they

impermissibly observed items, which they then used as probable cause to

obtain a search warrant.

Both the United States and the Pennsylvania Constitution guarantee that

individuals shall not be subject to unreasonable searches or seizures. See

U.S. Const. Amend. IV; Pa. Const. Art. I, § 8. A search or seizure conducted

without a warrant is presumed to be unreasonable. Commonwealth v.

McCree, 924 A.2d 621, 627 (Pa. 2007) (citations omitted). However, the

United States Supreme Court has recognized exceptions to the warrant

requirement, including a search conduct incident to a lawful arrest, also known

as a “protective sweep.” Maryland v. Buie, 494 U.S. 325 (1990).

In Buie, the Supreme Court held that, “the Fourth Amendment would

permit [a protective sweep] if the searching officer ‘possesse[d] a reasonable

belief based on “specific and articulable facts which, taken together with the

rational inferences of those facts, reasonably warrante[d]” the officer in

believing,’ that the area swept harbored an individual posing a danger to the

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5 Evans challenges the trial court’s conclusion that, as a state parolee, he had

a diminished expectation of privacy in Apartment 8. We agree that the

suppression record does not support this conclusion. Nevertheless, we note

this Court may affirm on any basis supported by the record. Se In re T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013) (citing cases).
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officer or others. Id. at 327 (quoting Michigan v. Long, 463 U.S. 1032,

1049-50 (1983) (citations omitted).

In Commonwealth v. Potts, 73 A.3d 1275 (Pa. Super. 2013), we

noted that this Court has interpreted Buie as approving two levels of

protection:

Pursuant to the first level of a protective sweep, without a

showing of even reasonable suspicion, police officers may

make cursory visual inspections of spaces immediately

adjacent to the arrest scene, which could conceal an

assailant. The scope of the second level permits a search

for attackers further away from the place of arrest, provided

that the officer who conducted the sweep can articulate

specific facts to justify a reasonable fear for the safety of

himself and others.

Potts, 73 A.3d at 1281-82 (citation omitted). As our Supreme Court made

clear in Commonwealth v. Taylor, 771 A.2d 1261, 1268 (Pa. 2007), at the

first level, “the scope of a protective sweep extends only to a visual inspection

of those places in which a person might be hiding and lasts no longer than is

necessary to dispel the fear of danger”); see also Commonwealth v.

Crouse, 729 A.2d 588, 598 (Pa. Super. 1999) (protective sweeps “cannot be

used as a pretext for an evidentiary search” and can only target “areas where

a person could reasonably be expected to hide”).

Evans argues that Detective Powell and the other officers went beyond

the first level of a protective sweep and conducted an invalid second level

search without reasonable fear for their safety. He argues that: “The actions

of [Detective] Powell, [the WCDT] and the police officers assisting them went
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beyond the first level of protective sweep recognized in Buie without having

any articulable facts to justify further search for individuals based up a concern

for officers [sic] safety.” Evans’ Brief at 41. According to Evans:

When the arrest was completed, the entryway was clear,

and there was no indication that anyone was inside the

apartment. At the time of the arrest, there was no basis to

conclude anything, except that the entry way was clear of

danger. [Officer] Powell had no reason to believe that

anyone may be inside of the apartment. Therefore, in

walking down the 10-12 foot entryway and into the living

room, [Officer] Powell and the other law enforcement

officers extended the sweep further than where Evans was

found in the doorway of his apartment without the

necessary articulable facts justifying an extended sweep.

Moreover, [Officer] Powell admits that the sweep began

while Evans was arrested and patted down and continued

for the one to two minutes it took to take Evans to the police

car, meaning that the sweep was ongoing when the arrest

had already been made and Evans had already departed

from the premises. Such a sweep is to lengthy for an

apartment that included an entryway, “small kitchen”,

bathroom, living room and one bedroom and was conducted

by four [WCDT] detectives, one parole officer and at least

two police officers.

Evans’ Brief at 41-42 (citations to record omitted).

Here, at the suppression hearing, Detective Powell testified that, after

arresting Evans inside his small apartment, the officers conducted a protective

sweep because they “could possibly be attacked by unknown persons.” N.T.,

11/7/16, at 29. Although defense counsel questioned the reasonableness of

this belief, the trial court credited Detective Powell’s testimony. See infra. As noted above, when we review the denial of a suppression motion, we review

the evidence presented by the prosecution and so much of the evidence for
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the defense as, fairly read in the context of the record as a whole, remains

uncontradicted. Hicks, supra. Here, the facts accepted by the trial court, as

restated infra, support the conclusion that the law enforcement officials did

not exceed the first level of a protective sweep.6

Regarding the subsequent search of his apartment, Evans further

challenges the trial court’s conclusion that adequate probable cause supported

the issuance of the warrant.7 Detective Powell testified that while he and the

other officers performed the protective sweep, he observed from the hallway

a gun holster located in a transparent drawer in a stand next to the bed in the

bedroom. Knowing that Evans was not permitted to possess a firearm,

Detective Powell secured the apartment and sought a search warrant based

upon his observation of the gun holster as well as other indicia of drug dealing.

Because Detective Powell legally observed these items, Evans’ claim that the

officers had insufficient probable cause to support the search warrant fails.

____________________________________________

6 Given this conclusion, Evans’ argument that the trial court relied on the “plain

view” exception to the warrant requirement is inapt. See Evans’ Brief at 38- 40. Nevertheless, we read the trial court’s statement that the holster was

seen “in plain view” as no more than its finding that the officers saw it during

the protective sweep and included this observation as part of its affidavit of

probable cause when securing the search warrant.

7 Although Evans states that “issues surrounding the issuance of the search

warrant will be explored in Issues III, IV, and V,” Evans Brief at 32, we choose

to address the claim regarding probable cause as part of our disposition of this

issue.
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In his third and fourth issues, Evans reiterates his claims that items

seized during the “illegal” searches of the apartment should have been

suppressed. Because both searches were valid, as indicated above, these two

issues warrant no relief.

In his fifth issue, Evans claims that Detective Powell intentionally

omitted pertinent information from the affidavit of probable cause, which

misled the court to issue the warrant. He claims that Detective Powell referred

to a video recording to corroborate one of the drug transactions made by the

confidential informant, but neglected to inform the court that the actual handto-hand transaction was not recorded. Evans also claims that “the CI’s

effectiveness in supplying information leading to the arrest or conviction of

others or prior reliability is noticeably absent from the affidavit of probable

cause as well.” Evans’ Brief at 50 (citing Commonwealth v. Gindelsperger, 706 A.2d 1216, 1226 (Pa. Super. 1997)).

The Commonwealth argues Evans waived any issue regarding the

sufficiency of the affidavit of probable cause because he failed to raise it in his

omnibus pretrial motion to suppress. We agree. The filing of a motion to

suppress, generally, is insufficient to preserve any and all challenges to the

validity of a search warrant. Instead, each specific challenge to a search

warrant must be presented to the suppression court in order to preserve it for

our review. See Commonwealth v. Glass, 718 A.2d 804, 807 (Pa. Super.

1998) (finding appellant failed to preserve his claim that the warrant’s affidavit
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of probable cause was defective because his motion to suppress was limited

to arguing the constitutionality of anticipatory search warrants). In reviewing

Evans’ suppression motion, we conclude that Evans made no mention that

Detective Powell intentionally omitted information from the affidavit of

probable cause. Thus, because Evans raised these claims for the first time on

appeal, they are waived. See generally, Pa.R.A.P. 302(a).

In his final four remaining claims, Evans challenges the sufficiency

and/or weight supporting his conviction at each case number. Again, although

Evans presents each claim as a separate issue, and these challenges are

discrete inquires, at each case number he combines his argument on both

claims. Despite this procedural violation, we will address each issue

separately.

Regarding his sufficiency claims, this Court has reiterated the standards

employed when reviewing these claims as follows: A challenge to the

sufficiency of the evidence presents a pure question of law and, as such, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017). When

analyzing whether the evidence was sufficient to support a conviction, this

Court must “view the evidence in the light most favorable to the

Commonwealth as the verdict winner in order to determine whether the jury

could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019). “The
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Commonwealth may sustain its burden by means of wholly circumstantial

evidence, and we must evaluate the entire trial record and consider all

evidence received against the defendant.” Commonwealth v. Hopkins, 67

A.3d 817, 820 (Pa. Super. 2013). “The evidence established at trial need not

preclude every possibility of innocence and the fact-finder is free to believe

all, part, or none of the evidence presented.” Commonwealth v. Brown, 52

A.3d 320, 323 (Pa. Super. 2012). “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.” Commonwealth v. Vargas, 108 A.3d 858,

867 (Pa. Super. 2014) (en banc). Additionally, this Court cannot “re-weigh

the evidence and substitute our judgment for that of the fact-finder.” Id. Our standard of review regarding a challenge to the weight of the

evidence is also well settled:

Appellate review of a weight claim is a review of the exercise

of discretion, not the underlying question of whether the

verdict is against the weight of the evidence. Because the

trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give gravest

consideration to the findings and reasons advanced by the

trial judge when reviewing a trial court’s determination [of

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

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted).

Stated differently, “one of the least assailable reasons for granting or denying

a new trial is the trial court’s conviction that the verdict was or was not against
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the weight of the evidence.” Commonwealth v. Furness, 153 A.3d 397, 404

(Pa. Super. 2016) (citation omitted).

In his sixth issue, Evans claims that the evidence was insufficient to

convict him of possession with intent to deliver at Case No. 816-2016—the

sale to the confidential informant.8

Pennsylvania prohibits “the manufacture, deliver, or possession with

intent to deliver, a controlled substance by a person not registered under this

act. 35 P.S. § 780-113(a)(30). Delivery means “the actual, constructive, or

attempted transfer from one person to another of a controlled substance,

other drug, device or cosmetic whether or not there is an agency relationship.”

35 P.S. § 780-102. In Commonwealth v. Ellison, 213 A.3d 312 (Pa. Super.

2019), this Court recently reiterated the evidence necessary to convict a

defendant of this charge:

Thus, for a defendant to be liable for the delivery of a

controlled substance there must be evidence that he

knowingly made an actual, constructive, or attempted

transfer of a controlled substance to another person without

the legal authority to do so. A defendant actually transfers

drugs whenever he physically conveys drugs to another

person. However, Section 780-113(a)(30) does not require

the Commonwealth to establish that an exchange of money

took place, nor does it require that the defendant transfer

____________________________________________

8 Although Evans did not raise his sufficiency challenge in the trial court,

Pa.R.Crim.P. 606(A)(7) “expressly provides that a challenge to the sufficiency

of evidence can be raised for the first time on appeal.” Commonwealth v.

McCurdy, 943 A.2d 299, 301 (Pa. Super. 2008).
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the drugs to a law enforcement officer; all that is necessary

is that the transfer be between two people.

Id. at 319 (Pa. Super. 2019 (citations omitted).

In support of his sufficiency challenge Evans alleges several

shortcomings in the Commonwealth’s evidence, including 1) the

Commonwealth’s failure to establish the telephone number the CI called was

for an account held by him;9 2) the police admitted that they did not

thoroughly search the CI’s vehicle before arranging the drug transaction; 3)

the CI moved the body recorder although the CI was told not to; 4) the video

recording did not disclose the identity of the purchaser or the actual hand-to- hand exchange; and that the time and date stamp on the video did not match

the information set forth in the criminal information. See Evans’ Brief at 53- 57.10 Finally, Evans contends that because CI did not testify at trial, “the

____________________________________________

9 Evans refers to these calls as being “illegally recorded.” Evans Brief at 53.

As discussed infra, we have determined otherwise. Notwithstanding this

conclusion, even if we had agreed that the calls were illegally intercepted we

do not review a sufficiency challenge on a diminished record. See

Commonwealth v. Gray, 867 A.2d 560, 567 (Pa. Super. 2005) (explaining

when reviewing a sufficiency challenge, “we do not review a diminished

record. Rather, the law is clear that we are required to consider all the

evidence that was actually received, without consideration as to the

admissibility of that evidence or whether the trial court’s evidentiary rulings

are correct”).

10 Evans also claims that Detective Powell “lied in the Affidavit of Probable

Cause attached to the Criminal Complaint in this matter when he swore to the

fact that the video in the CI’s vehicle recorded the entire transaction between

the CI and allegedly Evans, when in fact, it did neither.” Evans Brief at 55.
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video provides the only direct evidence of the occurrences within the CI’s

vehicle, but because of the placement by the CI, the video fails to provide any

evidence of [Evans’] presence in the vehicle let alone any drug transaction

occurring within the vehicle.” Evans’ Brief at 57.

When viewed in the light most favorable to the Commonwealth as

verdict winner, our review of the record supports the conclusion that sufficient

evidence was presented to convict Evans of possession with intent to deliver.

Thomas, supra. Although the drug transaction was not recorded, both Powell

and Manfredi personally witnessed Evans, with whom they were familiar, enter

the CI’s vehicle and never lost sight of the vehicle until they saw Evans later

exit the vehicle. The trial court, as fact-finder, credited their testimony.

Moreover, as noted above, the hand-to-hand transaction may be supported

by wholly circumstantial evidence. Ellison, supra. Instead of challenging sufficiency, Evans’ argument actually goes to the

weight and credibility of the evidence presented. See Commonwealth v.

Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011) (concluding that the appellant

attacks the weight rather than the sufficiency of the evidence when his

____________________________________________ Evans relies on Detective Powell’s trial testimony to support this fact not the

actual affidavit of probable cause. The affidavit of probable cause only

generally states that: “Said purchase was captured on a pre-authorized video

and audio recording.”
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argument is directed entirely to the credibility of the Commonwealth’s chief

witness). As such, his sixth issue warrants no relief. In his seventh issue, Evans challenges the weight of the evidence

supporting his conviction at Case Number 816-2016. The trial court found no

merit to Evans’ weight claim. It concluded that the facts presented by the

Commonwealth “have sufficient weight to sustain a Possession with Intent to

Deliver a Controlled Substance conviction and that the conviction did not

shock the Court’s conscience.” Trial Court Opinion, 3/13/19, at 10. “On

appeal, [an appellate court] cannot substitute its judgment for that of the

[fact-finder] on issues of credibility, of that of the trial judge respecting

weight.” Commonwealth v. Sanchez, 36 A.3d 24, 39 (2011). Here the trial

court, as the fact-finder, rejected Evans’ weight claim. As we discern no abuse

of discretion, Evans’ seventh claim fails.

In his eighth issue, Evans contends that the evidence was insufficient to

convict him of possession with intent to deliver at Case Number 787-2016—

the subsequent search of his apartment. In support, he claims “[there was]

no evidence introduced at trial that [Evans’] name was on the lease for

Apartment 8 and the presence of the power bill in [his] name does not confirm

that he resided [there].” Evans’ Brief at 60. Evans further contends that in
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the bedroom the “bed could sleep two people.” Id.11 He then argues that

since the evidence of drug dealing found in the apartment did not include other

paraphernalia, the items found could indicate that the drugs were possessed

for personal use by someone other than him. See Evans’ Brief at 61-62. Pennsylvania allows expert opinion testimony 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.”

Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa. Super. 2016) (citation

omitted). Here, the Commonwealth’s expert testified about why he believed

that the drugs found were possessed with an intent to deliver, rather than for

personal use. See N.T., 10/15/18, 51-60. The trial court credited this

testimony. Additionally, circumstantial evidence indicated that Evans was the

person who possessed the drugs. Once again, Evans’ arguments challenge

the weight of the evidence presented by the Commonwealth rather than its

sufficiency. When viewing the evidence presented in the light most favorable

to the Commonwealth, Evans’ eighth issue fails.

____________________________________________

11 Yet, in arguing against the extent of the protective sweep of the apartment,

he asserted that the law enforcement officers had no reason to believe anyone

else would be present. See infra.
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In his ninth and final issue, Evans summarily raises a weight claim

regarding the evidence the Commonwealth presented against him at Case

Number 787-2016. The trial court found no merit to his claim:

[the] Court herein found [the expert’s] testimony to be

credible and the lack of wrapping paper, [tally] sheets, and

a money counter was not significant to weigh against its

conclusion that [Evans] possessed the intent to deliver a

controlled substance. This conclusion does not shock the

conscience.

Trial Court Opinion, 3/1319, at 16-17. Upon review of the record, we discern

no abuse of discretion. Clay, supra. Thus, Evans’ ninth issue fails.

In sum, because all of Evans’ issues lack merit, we affirm his judgment

of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/6/2020