J-S59037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

    RAY PALESTINI

                                                           No. 297 EDA 2017


                      Appeal from the Order December 20, 2016
      In the Court of Common Pleas of Philadelphia County Criminal Division at
                          No(s): CP-51-CR-0001581-2016

BEFORE: BENDER, P.J.E., OTT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 18, 2017

        The Commonwealth appeals from the order granting the motion of

Appellee, Ray Palestini, to suppress physical evidence arising from the search

of Appellee’s residence on the basis of an anticipatory search warrant. The

Commonwealth argues that probable cause existed to issue the warrant

because     law   enforcement     personnel   repeatedly    observed   Appellee’s

accomplice purchase bags of pills from two pharmacies and transport them to

Appellee’s residence. We reverse and remand for further proceedings.

        On September 15, 2015, police officers obtained an anticipatory search

warrant to search Appellee’s residence for controlled substances, specifically,

methadone, oxycodone and xanax.          On September 17, 2015, the officers



*   Former Justice specially assigned to the Superior Court.
J-S59037-17

executed the warrant at Appellee’s residence and seized 599 methadone pills,

302 oxycodone pills, 70 lorazepam pills, and $17,000.00 in cash. Appellee

was arrested and charged with possession with intent to deliver controlled

substances1 and other drug-related offenses.        Appellee filed a motion to

suppress asserting that the search warrant failed to provide probable cause to

search his residence. Appellee also moved to suppress statements that he

made to police officers following his arrest.

        The affidavit of probable cause underlying the anticipatory search

warrant provides:

          I. Affiant’s Background

          Your affiant is currently a Narcotics Agent with the
          Commonwealth of Pennsylvania, Office of Attorney General,
          Bureau of Narcotics Investigation and Drug Control,
          Philadelphia Office, Region II.    Your Affiant has been
          employed by the Office of Attorney General since September
          1990.

          Your Affiant has prepared and/or assisted in the execution
          of over 400 search and/or arrest warrants as an undercover
          Criminal Investigator. During those assignments, your
          Affiant received extensive narcotics training. Your Affiant
          has attended numerous training sessions and seminars in
          the area of criminal investigations, including but not limited
          to, a one hundred and sixty (160) hour Advanced Criminal
          Investigations School, Pa State Police Academy.           Your
          Affiant has attended the 45-hour “Top Gun” Narcotics
          Investigators School, and the BNIDC Agent’s Academy.

          Your Affiant is empowered by law to conduct investigations
          of, and make arrests for, offenses involving violations of the
          Controlled Substance, Drug Device and Cosmetic Act of April


1   75 P.S. § 780-113(a)(30).


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         14, 1972, and Corrupt Organization and Criminal Conspiracy
         under the Pennsylvania Crimes Code.

         Your Affiant is an “investigative or law enforcement officer”
         within the meaning of Section 5702 of the Pennsylvania
         Wiretapping and Electronic Surveillance Control Act and, in
         such capacity, your Affiant has successfully completed the
         Pennsylvania State Police “A” certification course required
         to monitor and utilize electronic surveillance equipment.
         Your Affiant’s certification number is A-1409.

         Your Affiant’s duties have included arrests, surveillance,
         undercover purchases of controlled substances, the
         interviewing and use of informants and the debriefing and
         interviewing of drug law violators. As a result of your
         Affiant’s training and experience, your Affiant is familiar with
         the manner in which drugs are sold, priced, and the manner
         in which drugs are processed and packaged. Your Affiant is
         also familiar with drug trafficking patterns employed by
         persons involved in the distribution of illegal drugs.

         II. Probable Cause

         On July 15, 2015 your Affiant Narcotics Agent Vincent
         Jackson received information from a confidential source
         [(“C/S”)] that the defendant Rosemary Divincenzo was
         picking up a large amount of controlled substance pills. The
         C/S specifically stated the defendant would be receiving a
         large shipment of methadone pills from a pharmacy in
         Delaware County Pa.         The defendant was previously
         arrested for distributing methadone, oxycodone and Xanax
         pills in 2011 by Philadelphia Pennsylvania police
         department. Based on the defendant’s prior arrest record,
         your Affiant decided to perform a physical surveillance on
         the defendant to determine if she was engaged in the illegal
         distribution of controlled substances.

         On July 20, 2015 surveillance was established at the
         pharmacy the defendant used to fill her prescriptions for
         controlled substances, at approximately 2:30 p.m. the
         defendant was observed arriving at [redacted2] pharmacy.

2 The redactions were in the copy of the affidavit of probable cause contained
in the certified record. It is unclear when the redactions were made.


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       The pharmacy is located at [redacted], Pa. She was
       observed going inside. Your Affiant observed Rosemary
       Divincenzo accept a large white bag with pill bottles inside
       of it, while he was in the pharmacy with her.

       Divincenzo was followed by Law Enforcement personnel as
       she exited the pharmacy at approximately 2:51 p.m. She
       proceeded to get onto I95 North towards Philadelphia.
       Divincenzo was eventually followed to 2502 S. 10th Street,
       where she was observed entering the property. Divincenzo
       had the white bag containing pill bottles in her hand; this
       was at approximately 3:23 p.m.

       Rosemary Divincenzo exited 2502 S. 10th Street at
       approximately 3:43 p.m. She did not have the white bag in
       her hand. She got into her vehicle and left the area. A few
       minutes later a white male identified as Raymond Palestini
       was observed by members of the DEA Philadelphia Tactical
       Diversion Squad exit 2502 S. 10th Street. He proceeded to
       engage in what appeared to be drug transactions with
       several individuals.

       On August 18, 2015 your Affiant received information once
       again from the same confidential source that Rosemary
       Divincenzo was receiving a large amount of schedule II
       Controlled Substance pills, specifically methadone,
       oxycodone and xanax.        She was going to the same
       pharmacy as before, [redacted] pharmacy. Your Affiant
       observed Divincenzo go inside of the pharmacy at 2:05
       p.m., [and] she was observed by your Affiant leaving the
       pharmacy at 2:20 p.m., with a large white bag containing
       pill bottles. Rosemary Divincenzo made one stop at a
       Dunkin Doughnut shop, two doors away from the pharmacy.
       She met with no one and left a few minutes later. She was
       observed by your affiant the whole time. She then drove to
       I95 North, towards Philadelphia. Divincenzo was followed by
       your Affiant to 2502 S. 10th Street, once again. She was
       observed by Group Supervisor Minh Nguyen of DEA
       Philadelphia as she entered the property with the white pill
       bag at approximately 2:43 p.m. Prior to Divincenzo arriving
       Raymond Palestini was observed engaging in what appeared
       to be several drug transactions. At approximately 3:08
       p.m., Divincenzo was observed leaving the property without



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J-S59037-17


       the white bag with the pills inside. Surveillance was
       terminated at 4:00 p.m.

       On September 15, 2015 your Affiant received information
       from the same confidential source as previously, that
       Rosemary Divincenzo was once again picking up 1200
       methadone pills from [redacted] pharmacy located at 1154
       Baltimore Ave, Springfield Pennsylvania at approximately
       1:00 p.m.

       On September 15, 2015 it is anticipated that Rosemary
       Divincenzo is going to deliver the 1200 methadone pills to
       Raymond Palestini at 2502 S. 10th Street, as she has
       previously done on July 20, 2015 and August 18, 2015.
       Based on your Affiant’s training and experience, he believes
       the subject Rosemary Divincenzo and Raymond Palestini are
       conspirators in the illegal distribution of narcotics. Your
       Affiant expects to find supporting information and evidence
       of illegal drug distribution at 2502 S. 10th Street,
       Philadelphia Pennsylvania.

       Based on the foregoing, your Affiant has probable cause to
       believe Rosemary Divincenzo will deliver approximately
       1200 methadone pills to 2502 S. 10th Street, Philadelphia
       Pennsylvania on September 15, 2015. Your Affiant is
       submitting an application for an Anticipatory Search and
       Seizure Warrant for 2502 S. 10th Street Philadelphia Pa. If
       approved this Warrant shall be Valid and Lawful for the
       residence listed above. The execution of this warrant shall
       be contingent upon Rosemary Divincenzo obtaining
       prescription drugs then immediately driving to and entering
       2502 S. 10th Street with a large white bag with pills inside
       and exiting without the bag.

       III. Conclusion

       Based on the above facts and circumstances, your affiant
       believe probable cause exists to believe that the residence
       of 2502 S. 10th Street, Philadelphia, PA is used to sell illegal
       narcotics. Your Affiant also knows through his education,
       knowledge and experience that individuals involved in the
       trafficking of controlled substances likely are in possession
       of weapons, drug paraphernalia used for the packing and
       transport of controlled substances, records and sums of U.S.


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        currency.    Your Affiant further knows that individuals
        involved in the trafficking of controlled substances secrete
        or hide controlled substances and these other items within
        a secure place, such as a vehicle or home to deter detection
        by law enforcement and/or other individuals

        In the event that Rosemary Divincenzo does not deliver the
        pills to 2502 S. 10th Street, this warrant will become null
        and void and will not be served.

        Affiant submits this Application for authorization of an
        Anticipatory Search and Seizure Warrant by this Honorable
        Court, for 2502 S. 10th, Philadelphia County, PA.

R.R. 13a-18a.3

     On November 28, 2016, the trial court granted Appellee’s motion to

suppress all evidence arising from the search of his residence without ruling

on Appellee’s motion to suppress his post-arrest statements.             The

Commonwealth filed a motion for reconsideration. On December 8, 2016, the

trial court granted the motion, vacated the suppression order and scheduled

the matter for a hearing. On December 20, 2016, following the hearing, the

trial court reinstated its order granting Appellee’s motion to suppress all

physical evidence.

     The Commonwealth filed a timely appeal under Pa.R.A.P. 311(d)

certifying that the suppression order terminated or substantially handicapped

its prosecution. Both the Commonwealth and the trial court complied with

Pa.R.A.P. 1925.




3 For the parties’ convenience, we cite to the Commonwealth’s reproduced
record whenever possible.


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J-S59037-17

      The Commonwealth raises a single issue in this appeal:

           Did the [trial] court err by suppressing almost one thousand
           narcotics pills and seventeen thousand dollars in cash seized
           pursuant to a search warrant where an experienced
           investigator repeatedly observed a suspect receive bags of
           pill bottles which were transported to a drug sales location?

Commonwealth’s Brief at 3.

      The Commonwealth claims that the trial court erred in failing to afford

adequate deference to the magistrate’s determination that probable cause

existed.    Id. at 8-9.    According to the Commonwealth, the affiant, an

experienced officer in drug trafficking, received information from a C/S that

that Divincenzo was picking up large quantities of controlled substances from

a pharmacy on two occasions. Id. The affiant then corroborated the C/S’s

information by observing Divincenzo picking up large bags of pills from the

pharmacies. Id. Further, investigators followed Divincenzo to the residence

to be searched, and on both occasions, Divincenzo entered the residence with

a white pharmacy bag and left the residence without the bag. Id. Appellee

was seen exiting the residence and conducting what appeared to be narcotics

transactions. Id. The Commonwealth thus asserts that the trial court’s focus

on the reliability of the C/S was misplaced, because the affiant corroborated

the C/S’s report, and the affiant’s own observations provided a substantial

basis for finding probable cause.          Id. at 12-13.       Additionally, the

Commonwealth claims that the trial court erred in suggesting that Appellee’s

oral statements should also be suppressed because that issue was not



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J-S59037-17

encompassed in its order suppressing the physical evidence.           Id. at 13.

Although the affidavit of probable cause fails to establish the C/S’s reliability,

we conclude that there was sufficient independent corroboration of the C/S’s

tips by the investigating officers to justify the issuance of the warrant.

      Our standard of review is well settled.

         When the Commonwealth appeals from a suppression order,
         we follow a clearly defined standard of review and consider
         only the evidence from the defendant’s witnesses together
         with the evidence of the prosecution that, when read in the
         context of the entire record, remains uncontradicted. The
         suppression court’s findings of fact bind an appellate court
         if the record supports those findings. The suppression
         court’s conclusions of law, however, are not binding on an
         appellate court, whose duty is to determine if the
         suppression court properly applied the law to the facts. Our
         standard of review is restricted to establishing whether the
         record supports the suppression court’s factual findings;
         however, we maintain de novo review over the suppression
         court’s legal conclusions.

Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016) (citations

and quotation marks omitted).

      In Illinois v. Gates, 462 U.S. 213 (1983), the United States Supreme

Court adopted a “totality-of-the-circumstances” standard for evaluating

search warrants, which “permits a balanced assessment of the relative

weights of all the various indicia of reliability and unreliability attending an

informant’s tip.” Commonwealth v. Clark, 28 A.3d 1284, 1288 (Pa. 2011)

(discussing Gates). Our Supreme Court adopted Gates as the applicable law

under the Pennsylvania Constitution in Commonwealth v. Gray, 503 A.2d

921 (Pa. 1985).        Under the totality-of-the-circumstances test, facts


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insufficient to support probable cause if considered separately may add up to

probable cause in combination, see Commonwealth v. Dennis, 612 A.2d

1014, 1016-17 (Pa. Super. 1992) (citations omitted), particularly when

“viewed through the eyes of a prudent, reasonable, cautious police officer

guided by experience and training.”      Commonwealth v. Wells, 916 A.2d

1192, 1195 (Pa. Super. 2007) (citations omitted).

     The standard for assessing search warrants that rest 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). Thus, 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. Id. The corroboration
        by police of significant details disclosed by the informant in
        the affidavit of probable cause meets the Gates threshold.
        Commonwealth v. Sanchez, 907 A.2d 477, 488 ([Pa.]
        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.”).

Clark, 28 A.3d at 1288.

     An anticipatory warrant is “a warrant based upon an affidavit showing

probable cause that at some future time (but not presently) certain evidence

of crime will be located at a specified place.” United States v. Grubbs, 547

U.S. 90, 94 (2006) (citation omitted). “Most anticipatory warrants subject



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their execution to some condition precedent other than the mere passage of

time—a so-called ‘triggering condition.’” Id.

            When considering whether an anticipatory search warrant
            was supported by probable cause under the Fourth
            Amendment of the United States Constitution and Article I,
            Section 8 of the Pennsylvania Constitution, judicial review is
            confined to the averments contained within the four corners
            of the affidavit of probable cause. Further, “[w]hether a
            particular anticipatory warrant should or should not be
            approved . . . will depend upon the sufficiency of the
            averments in the individual case.”

            In judging whether particular averments establish probable
            cause, we are mindful of the principle that:

               Probable cause . . . is a practical, non-technical
               conception requiring a consideration of the totality of the
               circumstances . . . The task of the issuing magistrate is
               simply to make a practical, commonsense decision
               whether, given all 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.

Commonwealth v. Wallace, 42 A.3d 1040, 1048 (Pa. 2012) (citations and

footnotes omitted). “[T]he duty of a reviewing court is simply to ensure that

the magistrate had a substantial basis . . . for conclud[ing] that probable cause

existed.”     Commonwealth v. Coleman, 830 A.2d 554, 560 (Pa. 2003)

(citation and quotation marks omitted).

      In this case, although the affidavit did not establish that the C/S was

reliable, it still managed to furnish probable cause because the investigating

officers sufficiently corroborated the C/S’s tips. Thus, the issuing authority




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J-S59037-17

had probable cause to issue the anticipatory warrant to search for controlled

substances in Appellee’s residence.

      We first review the information that the C/S provided to the police. The

affidavit states that on three separate dates, the C/S advised that Divincenzo

would be receiving substantial shipments of controlled substances at the

pharmacies. R.R. 14a-16a. On July 15, 2015, the affidavit states, the C/S

advised that Divincenzo was picking up a “large shipment” of methadone pills

from a pharmacy in Delaware County. R.R. 14a. The affidavit does not state

how or when the C/S learned this information. Neither does the affidavit state

that the C/S identified the pharmacy or when Divincenzo would pick up the

shipment. Similarly, the affidavit states that on August 18, 2015, the C/S

advised that Divincenzo “going to the same pharmacy as before” to receive a

“large amount” of “methadone, oxycodone and Xanax.” Id. at 15a. Once

again, the affiant fails to describe how or when the C/S learned this

information.   Neither does the affidavit state that the C/S identified when

Divincenzo would receive the shipment. Finally, the affidavit states that on

September 15, 2015, the C/S advised that Divincenzo was picking up 1200

methadone pills at 1:00 p.m. from a pharmacy at 1154 Baltimore Avenue in

Springfield, Pennsylvania. Id. at 16a. Yet again, the affiant fails to describe

how or when the C/S learned this information. The affidavit does not indicate

that the C/S provided information in the past which resulted in arrests or

convictions.



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      Had this been the only information in the affidavit, it would have been

proper for the trial court to grant Appellee’s motion to suppress.         Here,

however, the warrant includes additional information that police officers

obtained through their own independent investigation. The affidavit states

that on July 18, 2015, the affiant watched Divincenzo “at the pharmacy [she]

used to fill her prescriptions for controlled substances . . . Your affiant

observed [her] accept a large white bag with pill bottles inside of it, while he

was in the pharmacy with her.”      Id. at 15a.    Law enforcement personnel

followed her to Appellee’s residence in Philadelphia, where she entered with

the bag at 3:23 p.m. and left at 3:43 without the bag. Id. Appellee then left

the residence and “engage[d] in what appeared to be drug transactions with

several individuals.” R.R. at 15a. Similarly, the affidavit states that on August

18, 2015, the affiant “observed [Divincenzo] go inside the pharmacy at 2:05

p.m. [and leave] at 2:20 p.m., with a large white bag containing pill bottles.”

Id. at 15a-16a.    The affiant followed her to Appellee’s residence, where

another law enforcement officer observed her enter the residence with the

bag at 2:43 p.m. and leave at 3:08 p.m. without the bag. Id. at 16a. Finally,

as noted above, the affidavit states that on September 15, 2015, the C/S

informed the affiant that Divincenzo was picking up 1200 methadone pills at

approximately 1:00 p.m. from a pharmacy in Springfield. Id.

      The trial court concluded that this information was insufficient:

         [The affiant] doesn’t mention where he got those tidbits of
         information, how he or the source knew she was going to


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         be picking up “approximately 1200 methadone pills,” or in
         any other way explain how he arrived at the conclusion that
         it was “her” pharmacy and was where she got “her”
         prescriptions filled, whether from the source or anyone else,
         even having noted himself that on the anticipated third
         occasion she was going to go to a different pharmacy. If
         the mere facts that a person went to a pharmacy and picked
         up drugs were the only bases needed to support the
         astronomical leap to the conclusion that criminal activity
         was afoot[,] the police would be entitled to search every
         residence in the country at any time they felt like it if a
         resident of, or visitor to it, was seen buying something at a
         pharmacy and bringing it to his or anyone else’s home. That
         the observed activities were illegal are sheer conclusions
         based upon the observation of what by the agent’s own
         description only appeared to be completely normal and legal
         activities: an individual going to a drug store and getting
         monthly prescription refills.

Trial Ct. Op., 3/13/17, at 11.

      We disagree with this analysis. On one date in July 2015 and another

in August 2015, the C/S informed the police that DiVincenzo was purchasing

a large amount of controlled substance pills at a Delaware County pharmacy.

The police corroborated both tips. On both dates, they observed DiVincenzo

purchasing large bags of prescription drugs at Delaware County pharmacies,

driving to Appellee’s residence, entering the residence and leaving without the

bags less than one half hour later.   On the first date, the police observed

Appellee engage in what appeared to be hand-to-hand drug sales after

DiVincenzo’s departure. On the second date, the police observed Appellee

engage in what appeared to be drug sales prior to DiVincenzo’s arrival. On

September 15, 2015, one month later, the C/S told the affiant that DiVincenzo

would deliver 1200 methadone pills to Appellee’s residence. Collectively, this


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information furnished probable cause to anticipate that DiVincenzo and

Appellee were conspiring to sell narcotics illegally, and that DiVincenzo would

purchase a significant number of methadone pills and deliver them to

Appellee’s residence that day for illegal distribution.4

      Order reversed. Case remanded for proceedings in accordance with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/18/2017




4 As a further precaution, the affidavit stated that the police would not execute
the warrant unless DiVincenzo obtained prescription drugs that day, drove
immediately to Appellee’s residence, entered the residence with a bag and left
without the bag. Appellee does not dispute that these events actually took
place.


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