J-S78028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAVID EUGENE RICHARDSON                    :
                                               :
                       Appellant               :   No. 294 EDA 2018

           Appeal from the Judgment of Sentence December 5, 2017
     In the Court of Common Pleas of Chester County Criminal Division at
                       No(s): CP-15-CR-0002065-2016


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

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

       David Richardson appeals from the judgment of sentence entered

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

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

possession of a controlled substance, and possession of drug paraphernalia.1

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

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

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

probable cause. We affirm.

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

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


*    Former Justice specially assigned to the Superior Court.

118 Pa.C.S.A. § 6105(a)(1) and 35 P.S. §§ 780-113(a)(30), 780-113(a)(16),
and 780-113(a)(32), respectively.
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(“Union Street house”). The affidavit of probable cause detailed his experience

as a police officer and detective and contained information about individuals

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

         [A] purchase of illegal drugs that is characterized as follows:
         police give specific directions to the CI; police search the CI
         prior to him/her meeting with the suspect(s) to obtain a
         controlled substance to ensure that the CI does not possess
         any controlled substances or other contraband; pre-
         recorded currency is provided to the CI to purchase the
         controlled substance; visual surveillance of the CI is
         maintained preceding and following the meeting with the
         suspect(s) to obtained the controlled substance to the
         extent possible; arrangements are made by police to meet
         the CI at a specified location following the meeting with the
         suspect(s); police retrieve any suspected controlled
         substance from the CI that was obtained from the
         suspect(s); police search the CI to ensure that he/she did
         not possess any additional controlled substances or other
         contraband; and a field-test of the suspected controlled
         substance is performed.

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

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

case. Id.

      The Affidavit then outlined the investigation conducted prior to applying

for the search warrant.

      Detective DiBattista met with a CI who advised Detective DiBattista that

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

house over a period of several years.

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

DiBattista met with the CI to conduct a controlled buy at the Union Street



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house. Detective DiBattista provided $40 in pre-recorded currency. While

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

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

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

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

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

positive for crack cocaine.

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

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

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

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

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

sealed plastic bag containing suspected crack cocaine. The substance field

tested positive for crack cocaine.

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

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

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

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

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

cocaine. The substance field tested positive for cocaine.

      The CI informed Detective DiBattista that he or she purchased the

controlled substances from a different person for each controlled buy.




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      Based on the information provided in the Affidavit, the magistrate

district judge granted the application for a search warrant.

      The police executed the warrant on March 18, 2016. In the front third-

floor bedroom, the police recovered a 9 mm handgun with an obliterated serial

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

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

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

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

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

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

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

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

      The police arrested Richardson and charged him with the above-

referenced offenses. The charges were based on the narcotics, paraphernalia,

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

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

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

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

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

presented multiple exhibits and presented the testimony of Detective

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

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

and possession of a drug paraphernalia and the trial court found Richardson

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guilty of possession of firearm by prohibited person. The trial court sentenced

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

Richardson filed a timely notice of appeal.

      Richardson raises the following issues:

         I. Whether the trial court erred by denying [Richardson’s]
         motion to compel identity of the Commonwealth’s
         confidential informant?

         II. Whether the trial court erred by denying [Richardson’s]
         motion to suppress the search warrant and all evidence
         gained as a result of such search warrant?

Richardson’s Br. at 4.

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

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

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

to the CI.

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

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

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

      Pennsylvania Rule of Criminal Procedure 573 provides the trial court with

the discretion to require the Commonwealth to reveal the names and

addresses of all eyewitnesses, including confidential informants, where a

defendant makes a showing of material need and reasonableness:

         (a) In all court cases, except as otherwise provided in Rule
         230 (Disclosure of Testimony Before Investigating Grand
         Jury), if the defendant files a motion for pretrial discovery,
         the court may order the Commonwealth to allow the
         defendant’s attorney to inspect and copy or photograph any

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          of the following requested items, upon a showing that they
          are material to the preparation of the defense, and that the
          request is reasonable:

          (i) the names and addresses of eyewitnesses....

Pa.R.Crim.P. 573(B)(2)(a)(i).

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

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

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

confidential informant’s identity is justified, noting:

          The problem is one that calls for balancing the public
          interest in protecting the flow of information against the
          individual’s right to prepare his defense. Whether a proper
          balance renders nondisclosure erroneous must depend on
          the particular circumstances of each case, taking into
          consideration the crime charged, the possible defenses, the
          possible significance of the informer’s testimony, and other
          relevant factors.

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

2001)).

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

transaction for which the defendant was charged, the Commonwealth retains

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

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

disclosure is reasonable and that the information sought to be obtained

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

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

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

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

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request reasonable will the trial court be “called upon to determine whether

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

      The Pennsylvania Supreme Court has found that where the charges are

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

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

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

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

1996).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

residence would have occurred. Id. (quoting Belenky, 777 A.2d at 489).

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Further, courts have noted that CIs are not present at the time a warrant is

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

      Richardson next claims the search warrant was not supported by

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

contain details as to how the CI had been deemed reliable.

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      Here, the judge who presided over the trial had retired prior to the filing

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

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

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

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

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

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

basis of the prior court’s decision. Id.

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

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

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

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

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

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

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

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

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

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

sufficiency of the evidence will be deemed waived”).

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

was supported by probable cause.

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

amend. IV; Pa.Const. Art. I, § 8. “Probable cause exists where the facts and

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circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

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

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

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

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

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

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

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

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

of making and reviewing probable cause determinations under Article I,

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

     The Pennsylvania Supreme Court has described this test as follows:

        Pursuant to the “totality of the circumstances” test set forth
        by the United States Supreme Court in Gates, the task of
        an issuing authority is simply to make a practical, common-
        sense decision whether, given all of the circumstances set
        forth in the affidavit before him, including the veracity and
        basis of knowledge of persons supplying hearsay
        information, there is a fair probability that contraband or
        evidence of a crime will be found in a particular place . . . .

        It is the duty of a court reviewing an issuing authority’s
        probable cause determination to ensure that the magistrate
        had a substantial basis for concluding that probable cause
        existed. In so doing, the reviewing court must accord
        deference to the issuing authority's probable cause
        determination, and must view the information offered to
        establish probable cause in a common-sense, non-technical
        manner.

                                     ...

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         [Further,] a reviewing court [is] not to conduct a de novo
         review of the issuing authority's probable cause
         determination, but [is] simply to determine whether or not
         there is substantial evidence in the record supporting the
         decision to issue the warrant.

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

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

      In Commonwealth v. Clark, the Pennsylvania Supreme Court found

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

affidavit contained no explicit recitation whether the CI had previously

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

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

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

concluded probable cause existed “because the information provided by the

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

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

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

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

directly to his residence,” and the court concluded “[a] common sense, non-

technical reading of these facts properly established a fair probability that

contraband or evidence of a crime would be found in the residence.” Id.




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       Here, the trial court did not abuse its discretion in denying the motion

to suppress.2 The Affidavit contained information supporting the probable

cause determination. In the Affidavit, Detective DiBattista described controlled

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

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

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

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

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

controlled substances purchased from the Union Street house. Such

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

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

Street house.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/26/19


____________________________________________


2As the evidence obtained from execution of the search warrant was admitted
at trial, it is clear the court denied the motion. Further, although we do not
know the basis of the trial court’s decision, we may affirm the trial court on
any basis. See In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011) (“[This
Court is] not bound by the rationale of the trial court, and may affirm on any
basis.”).

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