J-S67041-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RAYMOND LEON DIAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 662 MDA 2019

Appeal from the Judgment of Sentence Entered February 28, 2019

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

No(s): CP-35-CR-0002329-2017

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED FEBRUARY 24, 2020

Appellant Raymond Leon Diaz appeals from the judgment of sentence 

entered in the Court of Common Pleas of Lackawanna County on February 28, 

2019, following a jury trial. We affirm.

In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court 

thoroughly and accurately detailed the relevant facts and procedural history 

herein as follows: 

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

This case initiated with the filing of the criminal complaint 

on August 17, 2017, and, counseled by a public defender,

Appellant waived his preliminary hearing October 12, 2017 with 

the understanding he would enter a negotiated guilty plea. (See, 

Petition for the Appointment of New Counsel filed 10/23/2017). 

Due to a perceived conflict, the Honorable Judge Michael J. 

Barrasse granted Appellant's petition for new counsel, appointing 

trial counsel to assume his representation. (Order, J. Barrasse, 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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11/3/2017). Counsel filed an omnibus pretrial motion, which 

Judge Barrasse heard and thereafter denied. (See, Order, J. 

Barrasse, 3/29/2018; Order, J. Barrasse, 8/20/2018; 

Memorandum of Law, J. Barrasse, 10/10/2018). Upon discovery 

of a scheduling conflict, Judge Barrasse assigned Appellant's case 

to this [c]ourt for trial. After argument, this [c]ourt denied 

Appellant's motion to dismiss pursuant to Pennsylvania Rule of 

Criminal Procedure 600 filed November 21, 2018 immediately 

before trial commenced. (N.T., 12/3/2018, p. 6).

On December 5, 2018, following a bifurcated criminal trial 

that commenced December 3, 2018, a jury found the Appellant [] 

guilty of all offenses charged in the instant case. (See, Verdict 

Slips, filed 12/5/2018). The amended criminal information filed 

against Appellant included one count of possession of a controlled

substance with intent to deliver a quantity of cocaine, in violation 

of 35 Pa.C.S.A. §780-113(a)(30), two counts of delivery of a 

controlled substance, cocaine, in violation of 35 Pa.C.S.A. §780-

113(a)(30), two counts of criminal use of a communication facility, 

in violation of 18 Pa.C.S.A. §7512(a), one count of possession of 

a firearm prohibited, in violation of 18 Pa.C.S.A. §6105(a)(1), one 

count of possession of marijuana, in violation of 35 Pa.C.S.A. 

§780-113(a)(31), one count of possession of a controlled 

substance, in violation of 35 Pa.C.S.A. §780-113(a)(16), and one 

count of possession of drug paraphernalia, in violation of 35 

Pa.C.S.A. §780-113(a)(32). The Commonwealth charged 

Appellant as set forth above in connection with incidents occurring 

August 15th and 16th of 2017, on which dates Lackawanna County 

narcotics investigators conducted controlled drug purchases 

through the use of a confidential informant (hereinafter “C.I.”) 

then executed a search warrant of Appellant's residence. Due to 

the Commonwealth's need to present certain evidence this [c]ourt 

deemed too prejudicial against Appellant to establish the elements 

of possession of a firearm prohibited, once the jury rendered its 

verdict regarding all above-indicated drug-related offenses, this 

[c]ourt proceeded to a second phase of trial with regard to the 

single firearm charge before the case concluded.

At the time of trial, the Commonwealth first presented the 

testimony of the C.I., Karl Racavitch, a 30 year old male from 

West Scranton, Pennsylvania. (N.T., 12/4/2018, pp. 16-18). He 

discussed his history of drug use, explaining that he used 

marijuana and synthetic marijuana, commonly referred to as spice 

for approximately 11 years. Id. at 17-19. He also explained that 

in August 2017, he was on probation in connection with a felony 

drug conviction for selling marijuana and spice in 2014. Id. at 18.
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At that time, his probation officer having found a small 

amount of marijuana in his possession, Racavitch reached out to 

Detective Harold Zech of the Lackawanna County District 

Attorney's Office, offering to work as a C.I. to avoid a probation 

violation. Id. at 19. He told Detective Zech that he knew his 

neighbor, “T,” identified as Appellant, to be selling cocaine out of 

his home. Id. at 19-20. He understood that if he worked as a C.I., 

he may not incur a probation violation for the small amount of 

marijuana he possessed and Detective Zech would give him 

$200.00 to move from his current residence, as he feared 

Appellant due to having a shared history of drug-crime 

involvement. Id. In fact, he detailed that on a day during the 

summer of 2017, he returned home from work to find Appellant 

on his back porch. Id. at 21. Appellant indicated that he had been 

tied up and robbed of all of his drugs and asked Racavitch where 

he could get a gun. Id. 

Racavitch testified that he had known Appellant for six or 

seven months. Id. at 22. They met through mutual friends, and 

Appellant lived behind him, sharing a backyard area. Id. Racavitch 

indicated he had been inside Appellant's home “[a]t least 20”

times. Id. He described that to enter, he walked up about four 

steps to “a fenced back porch” then walked “through a kitchen 

door,” through the kitchen, to find a bedroom and a room to the 

right. Id. at 23. He saw Appellant at the residence each of the 

"[a]t least 20" times that he went there.

Id.

Turning to August 15, 2017, Racavitch testified that he 

agreed to participate in a controlled drug purchase from Appellant. 

Id. at 23-24. At his home, in the presence of Detective Zech, 

Racavitch placed a call to Appellant seeking “to purchase a ball of 

crack cocaine,” which would weigh approximately 3.5 grams. Id. 

at 24-25. Detectives recorded the phone call, and the 

Commonwealth played if for the jury. Id. at 25. About a minute 

and a half after placing the call, Racavitch went to Appellant's 

home on North Hyde Park Avenue in Scranton. Id. at 30. 

Immediately prior, Detective Zech thoroughly searched him and 

furnished him $220.00 to purchase the crack cocaine. Id. at 31.

Racavitch detailed that when he arrived at Appellant's back 

porch, Appellant had already been waiting for him. Id. at 33. They 

walked into the kitchen, they spoke briefly about drugs and the 

drug business, Racavitch handed Appellant the $220.00, Appellant 

left the kitchen and returned approximately one minute later with 

a quantity of crack cocaine. Id. He did not encounter or hear 

anyone else in the home while there. Id. at 35. Thereafter,
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Racavitch returned to his home, met Detective Zech there, handed 

him the drugs and submitted to another thorough search. Id. at 

37.

On August 16, 2017, the next day, Detective Zech again 

went to Racavitch's home. He again placed a phone call to

Appellant, which law enforcement recorded and played at the time 

of trial. Id. at 39. He requested the same amount of crack cocaine 

purchased the day before. Id. at 41. Detective Zech again 

searched Racavitch and provided him $220.00. Id. at 41-42. 

Within approximately a minute and a half of getting off the phone 

with Appellant, Racavitch went to Appellant's back porch. Id. at 

42-43. Appellant opened “the back door fence” and “kitchen door” 

with “no shirt on.” Id. at 43. Appellant commented that Racavitch 

appeared nervous. Id. Nonetheless, they went into the kitchen, he 

gave Appellant the $220.00 Detective Zech provided, and 

Appellant handed him “[a] little twist tie baggy of crack.” Id. at 

43-44. Again, he did not encounter or hear anyone else in

Appellant's residence. Id. at 44. Upon returning home to Detective 

Zech, Racavitch handed him the crack cocaine and submitted to a 

thorough strip search. Id. at 46.

The Commonwealth next called Detective Harold Zech to 

testify. He detailed his law enforcement background, explained his 

involvement specifically with the narcotics unit at the Lackawanna 

County District Attorney's Office, and shared his knowledge about 

the drug trade as well as criminal investigations into the same. Id. 

at 55-68. He then corroborated that he met the C.I., Racavitch, 

through Lackawanna County Adult Probation as he hoped to avoid 

a probation violation by working with law enforcement. Id. at 68-

69. The C.I. indicated that his neighbor, “T,” later identified as 

Appellant, sold drugs out of his residence, located at 662 North 

Hyde Park Avenue in Scranton. Id. at 69. A law enforcement 

database check of the individuals known to reside at the given 

address confirmed Appellant's association therewith. Id.

Having verified the information provided by the C.I., 

Detective Zech met him to conduct their first controlled purchase 

on August 15, 2017. Id. at 70. Detective Zech noted the unique 

nature of the situation in that the C.I. lived directly behind the 

target drug dealer, Appellant. Id. The C.I. placed a phone call to 

Appellant in the detective's presence, positively identifying the 

Appellant as Raymond Diaz, and they agreed to meet at

Appellant's home. Id. at 70-71. Before sending the C.I. to the 

Appellant's residence, Detective Zech performed a strip search of 

the C.I. and provided him $220.00, having photocopied the bills 

and recorded the serial number thereon. Id. at 71-72. He then
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surveilled and photographed the C.I.'s trip to Appellant's house 

from a second floor window in the C.I.'s home. Significantly, the 

Commonwealth admitted into evidence a photograph taken by the 

detective of the C.I. “being greeted at the doorway by Raymond 

Diaz” and one of the C.I. “being escorted out by Raymond Diaz.”

Id. at 80. Once the C.I. returned home, Detective Zech met him 

in the kitchen, received the quantity of suspected cocaine 

obtained, and performed another strip search of the C.I. Id. at 81. 

The detective explained that he conducted a field test of the 

substance, which yielded a positive result for cocaine, and

packaged the same for further testing by the Pennsylvania State 

Police Crime Lab. Id. at 83.

Detective Zech continued testifying by detailing the events 

of August 16, 2017. On that date, the detective and the C.I. met 

at the C.I.'s residence and again arranged for a controlled 

purchase to take place. Id. at 85. The detective strip searched the 

C.I., provided him prerecorded cash in the amount of $220.00, 

sent him on his way to Appellant's home, and surveilled from the 

second floor vantage point. Id. at 85-86. The Commonwealth

admitted a series of photos depicting the C.I. entering Appellant's 

home then being escorted out by Appellant, shirtless at the time, 

as described by the C.I. Id. at 89. When the C.I. returned to his 

house, Detective Zech again met him in the kitchen, received the 

suspected cocaine, performed a strip search of the C.1., 

conducted a positive field test, and packaged the evidence for 

further testing. Id. at 91-92.

Detective Zech explained that after completing two 

successful controlled purchases of narcotics, he applied for a 

search warrant for Appellant's residence. Id. at 94. Upon securing 

one, later in the day on August 16, 2017, he led law enforcement 

in executing the search warrant at approximately 8:00 p.m. Id. at 

95-96. Surveillance detectives watched the residence at 662 North 

Hyde Park Avenue in anticipation of the search warrant and

observed Appellant leaving said residence. Id. at 96-97. Following 

him therefrom, detectives initiated a traffic stop of Appellant's 

vehicle. Id. at 97. Detectives detained Appellant, found to have in 

his possession $1,945.00, including some of the money used in

each controlled purchase conducted, an Apple iPhone, and a 

Samsung flip phone, identified as the target phone bearing the 

number called by the C.I. on both occasions that he purchases 

narcotics from Appellant. Id. at 98. Appellant reportedly 

immediately denied living at the 662 North Hyde Park Avenue. Id. 

at 99.
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Detective Zech indicated that upon executing the search 

warrant at Appellant's residence, law enforcement encountered 

Joisey Blake, who[] was Mirandized and who[] became “extremely 

irate” with the detective. Id. at 99-100. Nonetheless, the search

continued, and after a canine indicated the presence of narcotics, 

police found a black duffel bag containing in excess of 20 grams 

of cocaine and a Taurus 38 Special Revolver in a room off of the 

bedroom. Id. at 101-103. Additional items located included 

sandwich baggies, generally used to package controlled 

substances, a safe containing sandwich baggies and other drug 

paraphernalia, men's clothing and shoes, a prescription bill bottle 

bearing Appellant's name and filled August 4, 2017, and a small 

amount of marijuana in the dresser within the same area where 

law enforcement recovered all other items. Id. at 110-115.

Detective Zech concluded his direct testimony with some 

discussion of the relevance of the items seized from Appellant's 

residence, based on his training within the field of narcotics

investigations, and in reference to establishing that Appellant 

indeed resided at the property searched. Id. at 115-128.

The Commonwealth next presented the testimony of 

Jennifer Libus, forensic scientist for the Pennsylvania State Police 

at their Wyoming Regional Laboratory in Pittston, Pennsylvania. 

Id. at 130. She confirmed that the evidence submitted for testing,

obtained from Appellant by the C.I. on August 15 and 16, 2017, 

contained approximately three and 3.13 grams of cocaine, 

respectively. Id. at 136-138. She further indicated that evidence 

seized from the black gym bag located in Appellant's residence 

and submitted for testing contained various quantities of cocaine. 

Id. at 138-141. Finally, she testified that the vegetable matter 

found in Appellant's dresser drawer and submitted for testing 

constituted approximately 1.24 grams of marijuana. Id. at 142.

The Commonwealth next called Detective Vincent 

Butkiewicz of the Lackawanna County District Attorney's Office. 

Id. at 172. He testified as to his role as a canine handler in the 

narcotics unit. Id. at 173. Appellant stipulated that Detective 

Butkiewicz's canine alerted him to the presence of narcotics in the 

residence searched. Id. at 174-175. The detective further 

confirmed that he did not encounter any other male or items 

belonging to any other male within the residence. Id. at 177.

Finally, prosecutors presented the testimony of Detective 

Tom Davis, another member of the Lackawanna County District 

Attorney's Office narcotic unit. Id. at 180-181. He indicated that 

he participated in the investigation regarding Appellant's drug 

activity by assisting with surveillance and in executing the search 
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warrant on August 16, 2017. Id. at 182-183. When Appellant left 

his residence prior to law enforcement's execution of the search 

warrant, Detective Davis followed him in his vehicle and initiated 

a traffic stop. Id. at 183-184. Detective Davis explained that at 

the time of the traffic stop, he and assisting detectives took 

Appellant into custody without incident, read him his Miranda 

Rights, and informed him of the search warrant being executed at 

662 North Hyde Park Avenue. Id. at 184. Appellant indicated that 

he did not live on the first floor but lived on the second floor at 

said address. Id. A search of his person yielded a total of 

$1,945.00 and a smart phone, and a search of his vehicle resulted 

in recovering a Samsung flip phone. Id. at 185. Detective Davis 

transported Appellant back to 662 North Hyde Park Avenue and 

learned that following the search performed, investigators found 

over 20 grams of cocaine, a silver Taurus 38 caliber handgun, drug 

packaging materials, and a pill bottle bearing Appellant's name. 

Id. at 186-187.

Thereafter, the Commonwealth rested with respect to the 

drug related charges, and Appellant commenced his case-in-chief 

calling witness Joisey Blake, his mother. Id. at 190. She indicated 

that her daughter lived in the second floor apartment at 662 North 

Hyde Park Avenue and her sister lived in the first floor apartment 

at the same address. Id. at 191. She testified that her sister's 

friend Josh and his two-year-old child lived at the apartment with

her. Id. at 192. On the day of the search warrant, she went to the 

first floor apartment to retrieve her phone charger. Id. at 191-

192. Her sister was not home as she had been visiting their 

mother in Philadelphia at the time. Id. at 192-193. Josh had 

apparently stopped living in the first floor apartment as her sister 

no longer wanted him there. Id. at 193. Blake indicated she saw 

him collecting his belongings approximately two weeks after the

execution of the search warrant in this case. Id. at 193.

Appellant next testified on his own behalf. He stated that on 

August 15 and 16, 2017, he and his aunt's boyfriend Josh had 

been playing a video game when Josh asked him to let the C.I. in 

and out of the apartment. Id. at 202-203. Appellant explained that 

the C.I. would occasionally come over to buy things from Josh. Id. 

He claimed to live at 3027 North Taney Street in North 

Philadelphia, not at 662 North Hyde Park Avenue. Id. at 203. He 

maintained that Josh lived at the apartment. Id. He denied ever 

having a phone call with the C.I.; he denied any knowledge 

regarding the Samsung flip phone located in his vehicle when 

stopped by law enforcement; and he denied having any “buy 

money” comingled with the $1,945.00 recovered from his person. 
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Id. at 205-207. Appellant did, however, ultimately acknowledge 

ties to the residence located at 662 North Hyde Park Avenue

through family members. Id. at 210.

Once Appellant rested his case, the Commonwealth recalled Detective Zech in rebuttal. He indicated that no evidence 

suggested that a minor child resided in the apartment at issue. Id. 

at 215. Detectives did not find any baby clothes or toys, and they 

did not find any mailings to a Josh or other evidence of another 

male living in the home. Id. at 215-216.

After closing arguments relative to the first phase of trial, 

the jury returned a verdict of guilty as to all crimes charged: 

possession with intent to deliver cocaine, two counts of delivery 

of cocaine, two counts of criminal use of a communication facility, 

possession of marijuana, possession of cocaine, and possession of 

drug paraphernalia. The Court proceeded to the second phase of 

trial, specifically regarding the charge of possession of a firearm 

prohibited.

The Commonwealth called Lackawanna County Clerk of 

Judicial Records Mauri Kelly to testify. (N.T., 12/5/2018, p. 63). 

She detailed that in a Lackawanna County criminal case docketed 

at 2012 CR 756, Appellant [ ] entered a guilty plea July 2, 2013 

to felony charges of delivery of a controlled substance and 

possession with intent to deliver a controlled substance. Id. at 65-

66. She further indicated that Appellant received a sentence of 

incarceration of 27 to 60 months with a period of probation to 

follow. Id. at 66.

Finally, the Commonwealth called Lackawanna County 

Detective Chris Kolcharno to testify as to his limited involvement 

in Appellant's case. Id. at 67-68. Specifically, on September 7, 

2018, Detective Zech requested that Detective Kolcharno test fire 

the weapon seized at the time of the search warrant executed at 

662 North Hyde Park Avenue. Id. at 68-69. He indicated that the 

Taurus 38 caliber revolver recovered from Appellant fired as

expected and was indeed operational. Id. at 69-71.

After the close of evidence and following this [c]ourt's 

instruction, the jury returned a guilty verdict as to the possession 

of a firearm prohibited charge. On February 28, 2019, this [c]ourt 

sentenced Appellant with respect to all charges to an aggregate 

term of incarceration of 138 months to 280 months in a state 

correctional institution. (N.T., 2/28/2019, p. 11).

Trial Court Opinion, filed 8/22/19, at 3-12. 
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On March 8, 2019, Appellant filed his Motion for Reconsideration of 

Sentence, and the trial court denied the same on April 16, 2019. On April 

24, 2019, Appellant filed a timely notice of appeal with this Court, and both 

the trial court and Appellant have complied with Pennsylvania Rule of 

Appellate Procedure 1925. 

In his Concise Statement of Errors Complained of on Appeal pursuant to 

Pa.R.A.P. 1925(b) Appellant raises nine claims for relief. In his appellate brief, 

Appellant presents two issues for our review:1 

1. Did the trial court err in failing to grant Appellant’s motion for 

suppression of evidence based upon deficiencies in the affidavit 

of probable cause supporting the issuance of a search warrant 

for the premises located at 622 North Hyde Park Avenue, 

Scranton, Pennsylvania where said affidavit relies almost 

exclusively upon statements made by a confidential informant 

whose veracity was not established?

2. Was the evidence presented at the time of trial sufficient to 

establish constructive possession of the contraband identified 

in Counts 1 (possession of a controlled substance with the 

intent to deliver), Count 6 (possession of a firearm prohibited); 

Count 7 (possession of marijuana) and Count 8 (possession of 

a controlled substance [cocaine]) in the amended criminal 

information where the uncontroverted evidence established 

____________________________________________

1

In his concise statement, Appellant presented the trial court with additional 

challenges to the sufficiency of the evidence and to the weight of the evidence. 

Appellant also argued the trial court had erred in failing to strike certain jurors 

for cause. He has abandoned these claims on appeal; therefore, we find them 

waived. Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super. 2011) 

(issues raised in Pa.R.A.P. 1925 concise statement that are not developed in 

appellate brief are abandoned); see also Commonwealth v. Woodward, 

129 A.3d 480, 509 (Pa. 2015) (holding that “where an appellate brief fails to 

. . . develop an issue in any [] meaningful fashion capable of review, that claim 

is waived[]”). 
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that multiple individuals had access to the area where said 

contraband was located?

Brief for Appellant at 5 (unnecessary capitalization omitted).

When considering the suppression court’s denial of Appellant’s motion 

to suppress evidence, we employ a well-settled standard of review:

An appellate court's standard of review in addressing a 

challenge to the denial of a suppression motion is limited to 

determining whether the suppression court's factual findings are 

supported by the record and whether the legal conclusions drawn 

from those facts are correct. Because the Commonwealth 

prevailed before the suppression court, we may consider only the 

evidence of the Commonwealth and so much of the evidence for 

the defense as remains uncontradicted when read in the context 

of the record as a whole. Where the suppression court's factual 

findings are supported by the record, the appellate court is bound 

by those findings and may reverse only if the court's legal 

conclusions are erroneous. Where ... the appeal of the 

determination of the suppression court turns on allegations of 

legal error, the suppression court's legal conclusions are not

binding on an appellate court, whose duty it is to determine if the 

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

conclusions of law of the courts below are subject to plenary 

review.

Commonwealth v. Bernard, 2019 WL 4180655, at * 3 (Pa.Super. Sept. 4, 

2019) (citation omitted). 

Appellant posits “the failure of law enforcement to corroborate the 

information provided by the Confidential Informant renders the Affidavit of 

Probable Cause defective.” Brief of Appellant at 23. Appellant submits the 

Affidavit of Probable Cause does not contain facts bolstering the then 

confidential informant’s veracity. Id. Appellant contends officers did not 

attempt to verify the phone number the confidential informant had provided 
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to them belonged to Appellant, and he further avers that police did not witness 

the drug transaction. Appellant also stresses officers admitted that other 

individuals lived at that location. Id. 

With regard to law enforcement’s reliance upon a confidential informant, 

the Bernard Court has stated:

An arrest or ‘custodial detention’ must be supported by probable 

cause:

Probable cause is made out when the facts and 

circumstances which are within the knowledge of the 

officer at the time of the arrest, and of which he has 

reasonably trustworthy information, are sufficient to 

warrant a [person] of reasonable caution in the belief 

that the suspect has committed or is committing a crime. 

 The question we ask is not whether the officer's belief 

was correct or more likely true than false. Rather, we 

require only a probability, and not a prima facie showing, 

of criminal activity. In determining whether probable 

cause exists, we apply a totality of the circumstances 

test.

 Information received from confidential informants 

may properly form the basis of a probable cause 

determination. Where the officers' actions resulted from 

information gleaned from an informant, in determining 

whether there was probable cause, the informant's 

veracity, reliability and basis of knowledge must be 

assessed.

 An informant's tip may constitute probable cause 

where police independently corroborate the tip, or where 

the informant has provided accurate information of 

criminal activity in the past, or where the informant 

himself participated in the criminal activity.

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa. 

Super. 2011) (cleaned up). Our Supreme Court “held that a 

determination of probable cause based upon information received 

from a confidential informant depends upon the informant's 

reliability and basis of knowledge viewed in a common sense, nontechnical manner.” Commonwealth v. Clark, 611 Pa. 601, 28 
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A.3d 1284, 1288 (2011) (citation omitted); see also

Commonwealth v. Sanchez, 589 Pa. 43, 907 A.2d 477, 488 

(2006), quoting United States v. Tuttle, 200 F.3d 892, 894 (6th 

Cir. 2000) (“[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.”); see also Commonwealth v. 

Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (citation omitted) 

(same).

Id. 

Herein, the suppression court discussed relevant caselaw and 

concluded, inter alia, that law enforcement independently had corroborated 

the confidential informant’s tip based upon the following evidence: 

Furthermore, an informant's tip may constitute probable 

cause to arrest or search where police independently corroborate 

tip, or where the informant has provided accurate information of

criminal activity in past, or where the informant participated in 

criminal activity. Commonwealth v. Luv, 735 A,2d 87 (Pa. 

Super. 1999); See also, Commonwealth v. Gray, 503 A.2d 

921, 926 (Pa. 1985) (the court can take into consideration the 

reliability of the tip along with the corroborative efforts of the 

officers when determining if probable cause has been 

established).

The United States Supreme Court in [Illinois v.]Gates [462 

U.S. 213 (1983)] recognized that, in instances where the affidavit 

is deficient in establishing the informant's veracity, reliability, or 

basis of knowledge, a strong showing with respect to the other 

elements-or the existence of some other indicia of reliability may 

compensate. Illinois v. Gates, 462 U.S. 213 (1983). "A 

determination of probable cause based upon information received

from a confidential informant depends upon the informant's 

reliability and basis of knowledge viewed in a common sense, non 

-technical manner." Commonwealth v. Luv, 735 A.2d 87, 90 

(Pa. 1999)

In Commonwealth v. Luton, the Pennsylvania Superior 

Court found a police-conducted “controlled buy” sufficiently 

corroborated neighbors’ complaints about illegal sales of narcotics 

at defendant's home and provided probable cause for issuance of 

warrant to search defendant's home. Commonwealth v. Luton, 

672 A.2d 819 (Pa. Super, 1996),
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Finally, in Commonwealth v. Baker, the Pennsylvania 

Superior Court found the informant's allegations that the 

defendant was selling drugs, corroborated by police officer’s first 

hand observations, where the informant entered the residence, 

and returned with cocaine, were sufficient factors to establish 

probable cause to sustain a search warrant. Commonwealth v. 

Baker, 615 A.2d 23 (Pa.Super. 1992).

In the present case, this [c]ourt finds sufficient probable 

cause to support the issuance of a search warrant. The CI provided 

Det. Zech with a physical description of [Appellant], the 

[Appellant’s] cell phone number, as well as [Appellant’s] home 

address, (N.T., p. 5). The CI identified [Appellant] via photograph. 

(N.T., p. 6). The CI then provided consent to have his or her 

communications with [Appellant] intercepted and recorded. (N.T., 

p. 7). As such, Det. Zech listened to the CI call [Appellant] and 

arrange a purchase of cocaine at [Appellant’s] residence. (N.T., p. 

7). While additional officers established surveillance around the

[Appellant’s] residence, Det. Zech searched the CI and provided 

a sum of prerecorded serialized money to use in the drug 

transaction. (N.T., p. 7). Meanwhile, Det. Condrad observed 

[Appellant] enter his residence at 662 North Hyde Park Avenue. 

(N.T., p. 7-8). Simultaneously, [Appellant] called the CI and 

directed the CI to his residence. (N.T., 7-8). Det. Zech through 

surveillance, he observed the CI walk to the rear north end of 662 

North Hyde Park Avenue. (N.T., p. 8). Thereafter, he viewed the 

CI exit the residence, and surrender a quantity of cocaine. (N.T., 

p. 10).

The next day, following the same protocol with Det. Zech, 

the CI conducted another controlled buy at [Appellant’s] residence 

and surrendered a quantity of cocaine. After completing two 

controlled buys, as well as the CI's identification of [Appellant], 

Det Zech applied for and obtained a search warrant of 662 North

Hyde Park Avenue. (N.T., p. 9, 10-11, 12-13). Officers entered 

the residence, they located a pill bottle bearing [Appellant’s] name 

on a bedroom dresser, a small amount of marijuana, as well as 

men's clothing and sneakers throughout in the apartment. (N.T., 

p. 15). A K-9 search resulted in a positive identification for

narcotics in a black gym bag. (Affidavit of Probable Cause, p, 1). 

Inside the gym bag, officers located a large twist bag containing 

twenty-three (23) grams of powder cocaine, one twist bag 

containing two (2) grams of powder cocaine, two twist bags

containing two (2) grams of crack cocaine, and men's apparel. 

(Affidavit of Probable Cause, p. 1). Near the gym bag, officers 

discovered an unloaded Taurus .38 revolver. (Affidavit of Probable 
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Cause, p. 1). Subsequently, officers checked [Appellant’s] criminal 

record and learned of his status as a convicted felon prohibited

from owning a firearm. (Affidavit of Probable Cause, p. 1-2). In 

addition, officers located a safe in the living room, which contained 

small plastic zip lock bags and plastic sandwich bags. (Affidavit of 

Probable Cause, p. 2).

Therefore, this [c]ourt finds sufficient probable cause to 

support the issuance of a search warrant regarding [Appellant’s]

residence. 

Suppression Court Opinion, filed 10/10/18, at 7-8. 

Based upon our standard of review and the evidence presented at the 

suppression hearing, we find no abuse of discretion or error of law in the 

suppression court’s denial of Appellant’s suppression motion. The confidential 

informant provided Detective Zech with a detailed physical description of 

Appellant and an address at which he was residing and from which he was 

selling cocaine. N.T. 8/8/18, at 6. Detective Zech also obtained a cellular 

phone number for Appellant and learned a controlled purchase could be made 

by contacting Appellant at that number. Id. at 6-7. The confidential 

informant contacted Appellant and arranged to purchase cocaine from him in 

Detective Zech’s presence. Id. at 7. 

Surveillance was established, and Detective Zech accompanied the 

confidential informant to an area near the residence. The confidential 

informant was subjected to a strip search and provided with a quantity of 

marked currency to make the purchase. Detective Zech intercepted a second 

phone call directing the confidential informant to come to the residence, and 

Detective Condrad witnessed Appellant enter the same. Id. at 7-8. Within 
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minutes, Detective Zech confirmed a narcotic transaction had occurred. Id. 

at 8. This routine was repeated for a second purchase. Id. at 9-10. 

Viewing the totality of the evidence in a common sense, non-technical 

manner, we conclude that law enforcement had probable cause to believe that 

criminal activity likely was afoot. Police were able to corroborate twice that 

Appellant acted in conformity with communications in which he and the 

confidential informant had engaged. Moreover, the confidential informant

confirmed that he had prior drug dealings with Appellant. See

Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1288 (2011) 

(informant's tip may constitute probable cause where the informant himself 

participated in the criminal activity). Therefore, suppression was not

warranted, and Appellant's first issue lacks merit. See Bernard, supra. 

Appellant next challenges the sufficiency of the evidence to support the 

guilty verdicts on Count 1 (PWID); Count 6 (Possession of a Firearm 

Prohibited); Count 7 (Possession of Marijuana); and Count 8 (Possession of a 

Controlled Substance) of the Amended Information. Specifically, Appellant 

maintains that Appellant had neither actual nor constructive possession of the 

contraband, a necessary element of each crime, because it was not found on 

his person. Brief of Appellant at 25. Appellant maintains that the record is 

“totally devoid” of any evidence suggesting he had dominion and control over

the gun and drugs inside the duffel bag and that it contains nothing even to 

suggest that Appellant knew illegal narcotics and a firearm were located in an 

adjacent room. Id. at 26-27. 
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This Court’s standard of review of a challenge to the sufficiency of the 

evidence is as follows: 

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 the factfinder. 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 actually received must be 

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

credibility of witnesses and the weight of the evidence produced, 

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

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) (citation 

omitted), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011). 

When reviewing Appellant’s challenge to the sufficiency of the evidence 

with regard to a PWID conviction, we are mindful that

[t]he Commonwealth must prove both the possession of 

the controlled substance and the intent to deliver the controlled 

substance. It is well settled that all the facts and circumstances 

surrounding possession are relevant in making a determination 

of whether contraband was possessed with intent to deliver.

In Pennsylvania, the intent to deliver may be inferred from 

possession of a large quantity of controlled substance. It follows 

that possession of a small amount of a controlled substance 

supports the conclusion that there is an absence of intent to 

deliver.
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Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008), appeal 

denied, 600 Pa. 744, 964 A.2d 894 (2009). 

Counts 7 and 8, concern Section 780–113 of The Controlled Substance, 

Drug, Device and Cosmetic Act, which states in relevant part:

(a) The following acts and the causing thereof within the 

Commonwealth are hereby prohibited:

(16) Knowingly or intentionally possessing a controlled or 

counterfeit substance by a person not registered under this act, 

or a practitioner not registered or licensed by the appropriate 

State board, unless the substance was obtained directly from, or 

pursuant to, a valid prescription order or order of a practitioner, 

or except as otherwise authorized by this act.

* * *

(30) Except as authorized by this act, the manufacture, delivery, 

or possession with intent to manufacture or deliver, a controlled 

substance by a person not registered under this act, or a 

practitioner not registered or licensed by the appropriate State 

board, or knowingly creating, delivering or possessing with intent 

to deliver, a counterfeit controlled substance.

35 P.S. §§ 780–113(a)(16), (30).

Finally, Appellant challenges his convictions of persons not to possess a 

firearm under 18 Pa.C.S.A. § 6105, which, in relevant part, provides the 

following:

§ 6105. Persons not to possess, use, manufacture, 

control, sell or transfer firearms

(a) Offense defined.—

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or 

whose conduct meets the criteria in subsection (c) shall not 
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possess, use, control, sell, transfer or manufacture or obtain 

a license to possess, use, control, sell, transfer or 

manufacture a firearm in this Commonwealth.

***

(c) Other persons.--In addition to any person who has 

been convicted of any offense listed under subsection (b), 

the following persons shall be subject to the prohibition of 

subsection (a):

***

(2) A person who has been convicted of an offense 

under the act of April 14, 1972 (P.L. 233, No. 64), known as 

The Controlled Substance, Drug, Device and Cosmetic Act, 

or any equivalent Federal statute or equivalent statute of 

any other state, that may be punishable by a term of 

imprisonment exceeding two years.

18 Pa.C.S.A. § 6105(a), (c).

Appellant does not dispute that he is prohibited from possessing a 

firearm; however, he contends the Commonwealth failed to prove that he 

actually possessed the firearm. We agree with Appellant that possession is 

an element of the firearms offense and that the firearm was not discovered 

on Appellant’s person so as to establish actual possession. See 

Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132, 134 (1983) 

(holding that actual possession is shown by proving the contraband was found 

on the defendant’s person). However, we disagree with Appellant’s claim that 

there is “no evidence to even suggest that [ ] Appellant knew the gun and 

duffle bag were present in the adjacent room.” Brief for Appellant at 27. 

Rather, to establish the element of possession, this Court has held that 

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish, 
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191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted), appeal denied, 202 A.3d 

42 (2019). We previously have determined:

Where a defendant is not in actual possession of the prohibited 

items, the Commonwealth must establish that the defendant had 

constructive possession to support the conviction. Constructive

possession is a legal fiction, a pragmatic construct to deal with the 

realities of criminal law enforcement. We have defined 

constructive possession as conscious dominion, meaning that the 

defendant has the power to control the contraband and the intent 

to exercise that control. To aid application, we have held that 

constructive possession may be established by the totality of the 

circumstances.

It is well established that, as with any other element of a 

crime, constructive possession may be proven by circumstantial 

evidence. In other words, the Commonwealth must establish facts 

from which the trier of fact can reasonably infer that the defendant 

exercised dominion and control over the contraband at issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted). 

Illegal possession of a firearm may be established by one’s constructive 

possession thereof. Commonwealth v. McClellan, 178 A.3d 874, 879 

(Pa.Super. 2018). In addition, the power and intent to control contraband 

does not need to be exclusive to an appellant in order to find constructive 

possession. Our Supreme Court has recognized that “constructive possession

may be found in one or more actors where the item in issue is in an area of 

joint control and equal access.” Commonwealth v. Johnson, 611 Pa. 381, 

26 A.3d 1078, 1094 (2011) (citation omitted). Further, contrary to Appellant’s 

suggestion, the Commonwealth was permitted to establish Appellant’s 

constructive possession via circumstantial evidence and the reasonable 

inferences that arise therefrom. Parrish, supra.
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Herein, Appellant’s argument with respect to the possession element of 

the charged crimes suffers from a fatal flaw- he views the evidence presented 

at trial in the light most favorable to him. For example, he stresses that others 

had access to the apartment. Brief of Appellant at 25-27. This position 

ignores the fact that constructive possession is not necessarily exclusive. 

Johnson, supra. Moreover, to the extent Appellant suggests the 

Commonwealth was required to prove Appellant actually possessed the

contraband, he is in error. Parrish, supra. 

Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we agree with the trial court that the evidence 

sufficiently establishes his constructive possession of the firearm and drugs 

the detectives seized as Appellant had the ability and intent to exercise control 

over the contraband. As the trial court relevantly indicated:

At the time of trial in Appellant's case, the C.I. testified that 

he informed Detective Zech that his neighbor, "T," identified as 

Raymond Diaz, Appellant, sold cocaine. out of his home. (N.T., 

12/4/2018, pp. 19-20). The C.I. testified that he had known 

Appellant for six or seven months. Id. at 22. They met through 

mutual friends, had a history of being involved in drug related 

crime together, and Appellant lived behind him, sharing a 

backyard area. Id. In fact, he detailed that on a day during the 

summer of 2017; he returned home from work to find Appellant 

on his back porch to ask C.I. where he could get a gun, explaining 

that he had recently been tied up and robbed of his drugs. Id. at 

21.

C.I. indicated he had been inside Appellant's home "[a]t 

least 20" times, and he saw Appellant at the residence each time 

he went there. Id. at 22-23. He described that entering from the 

back, he would walk up approximately four steps to a “fenced back 

porch,” walk through the kitchen to a bedroom with a room “like 

a closet” to the right. Id. at 23. He explained that on both August 
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15 and August 16, 2017, having spoken to him on the phone, C.I. 

went to Appellant's apartment to complete the two controlled 

purchases in this case. Id. at 32-34, 42-44. With respect to the 

purchase on August 15th, C.I. waited in the kitchen while Appellant 

went into another room, reappearing “not even a minute later” 

with a quantity of crack cocaine. Id. at 33-34. He further indicated 

that Appellant went into the room to the right to retrieve the 

cocaine on that occasion. Id. He did not encounter or hear anyone 

else in the home while there. Id. at 35, 44.

Detective Zech testified that a law enforcement database 

check of the individuals known to reside at 662 North Hyde Park 

Avenue confirmed Appellant's association with the address. Id. at 

69. In fact, photographs of Appellant meeting C.I. at the back door 

on the dates of the controlled purchases were admitted into 

evidence. Detective Zech also explained that prior to executing 

the search warrant in this case, surveillance detectives watched 

the residence at 662 North Hyde Park Avenue and observed 

Appellant leaving said residence. Id. at 96-97. Following him 

therefrom, detectives initiated a traffic stop of Appellant's vehicle, 

detained him, and seized from him $1,945.00, including some of 

the money used in each controlled purchase conducted, an Apple 

iPhone, and a Samsung flip phone, identified as the target phone 

bearing the number called by the C.I. on both occasions that he 

purchases narcotics from Appellant. Id. at 97-98; see also, 182-

187. Finally, Detective Zech indicated that the search of the 

residence yielded a black duffel bag containing in excess of 20 

grams of cocaine and a Taurus 38 Special Revolver in the room

off of the bedroom, “the makeshift walk-in closet.” Id. at 101-103, 

117. Additional items located included sandwich baggies, 

generally used to package controlled substances, a safe containing 

sandwich baggies and other drug paraphernalia, men's clothing 

and shoes, a prescription bill bottle bearing Appellant's name and 

filled August 4, 2017, and a small amount of marijuana in the 

dresser within the same area where law enforcement recovered

all other items. Id at 110-115. Detectives did not find evidence of 

any other male residing within the premises searched. Id. at 177; 

215-216. No evidence suggested any other alleged or verified 

member of the household sold or possessed any of the contraband 

recovered.

Viewing it in the light most favorable to the Commonwealth, 

this [c]ourt finds that the Commonwealth presented more than 

sufficient evidence to establish that Appellant possessed a 

quantity of cocaine, possessed a quantity of cocaine with intent to 

deliver, possessed a quantity of marijuana, and possessed a 
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firearm. The C.I. testified that Appellant resided in the 662 North 

Hyde Park apartment, having been there for the purpose of 

conducting drug transactions on numerous occasions. Detectives 

verified Appellant’s connection to the address and corroborated 

his drug trafficking activity with photographic evidence and having 

seized a sum of cash which included some of the buy money used 

in the controlled purchases conducted in this case as well as the 

cell phone bearing the number the C.I. used to contact Appellant 

to establish the drug transactions. Detectives found no evidence 

of any other individual's involvement in the sale of illegal drugs 

from the residence and recovered a substantial amount of cocaine, 

the marijuana and the gun from a room that appeared to be 

inhabited by Appellant, there being men's clothing and a 

prescription bill bottle of his therein. Though the evidence did not 

suggest anyone else had access to the drugs or the gun at the 

relevant time, pursuant to the doctrine of constructive possession, 

accessibility of others does not preclude possession by one. This 

[c]ourt, therefore, submits that Appellant's convictions on the 

instantly challenged offenses should be affirmed.

Trial Court Opinion, filed 8/22/19, at 19-22. 

We agree with the trial court that when viewed in its totality, the 

aforesaid direct and circumstantial evidence presented at trial along, with the 

reasonable inferences that arise therefrom, reveals that Appellant had the 

power and intent to control the cocaine, marijuana and revolver. The 

confidential informant testified he watched Appellant enter a room and emerge 

therefrom with a quantity of crack cocaine which he then sold to Appellant. 

Detective Zech’s strip search of the confidential informant within minutes 

thereafter revealed the cocaine. Clearly, this evidence demonstrated that 

Appellant participated in drug-related criminal activity, the sale of cocaine to 

the confidential informant, and established Appellant possessed the cocaine 

with the intent to deliver the same to the confidential informant. 
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In addition, Detective Zech testified he discovered a prescription bottle 

bearing Appellant’s name along with men’s clothing and shoes in the same 

area where the marijuana, revolver, and other drug paraphernalia were found. 

Officers found no evidence that may have linked another male residence to 

that room. It was reasonable for a jury to infer from this evidence that 

Appellant was connected to, and therefore had constructive possession of, the 

area of the home wherein marijuana and a firearm was kept. Thus, we 

conclude the court provided a well-reasoned basis for its determination that 

the Commonwealth presented sufficient evidence to support the possession 

element and convictions of counts one, six, seven and eight. Accordingly, we 

conclude Appellant is not entitled to relief on any of his challenges to the 

sufficiency of the evidence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/24/2020