J-A29025-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES LEONARD,

                            Appellant                No. 342 WDA 2014


      Appeal from the Judgment of Sentence entered January 31, 2014,
             in the Court of Common Pleas of Allegheny County,
            Criminal Division, at No(s): CP-02-CR-0002957-2012


BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                       FILED NOVEMBER 14, 2014

       James Leonard, (“Appellant”), appeals from the judgment of sentence

imposed after the trial court found him guilty of possession of a firearm by a

prohibited person, possession with intent to deliver a controlled substance,

possession of a controlled substance, possession of drug paraphernalia,

driving while his operating privileges were suspended, and failure to use a

turn signal.1

       On November 1, 2011, Officers Burgunder, Churilla, and Ficorilli of the

Pittsburgh Bureau of Police were contacted by a confidential informant who

notified them that a black male known as James Leonard was selling
____________________________________________


1
 18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 780-113(a)(30), 35 P.S. § 780-
113(a)(16), 35 P.S. § 780-113(a)(32), 75 Pa.C.S.A. § 1543, and 75
Pa.C.S.A. § 3334.


*Retired Senior Judge assigned to Superior Court.
J-A29025-14



Percocet and heroin from his residence at 3454 Ligonier Street in Pittsburgh,

Pennsylvania. N.T., 8/1/13, at 5. The police officers were familiar with that

residence,   having   previously   conducted    drug-related    arrests    of   two

individuals departing from that location.        Id.   The officers conducted

surveillance of the residence and observed a lot of foot traffic in and out of

the residence, with various people briefly entering and then leaving, in a

pattern consistent with street level drug sales. Id. at 6-7. Soon thereafter,

Appellant left the residence in a silver Dodge Stratus.        Id. at 7.   Officers

Ficorilli and Burgunder followed Appellant and observed him quickly change

lanes three times without using a turn signal. Id. at 8-9. The police officers

activated their lights and sirens and stopped Appellant’s vehicle. Id. When

Officer Burgunder approached the passenger side of the vehicle, he observed

a clear plastic bag containing a large quantity of white, oval shaped pills in

the center console, which Appellant informed him were Percocet. Id. at 9-

11. Appellant stated that he did not have a prescription for the drugs, but

he took them for pain management. Id. Subsequent testing revealed the

pills were Vicodin and not Percocet. N.T., 9/24/13, at 19.

      Appellant was arrested and the officers secured a search warrant for

Appellant’s residence in which they retrieved marijuana, heroin, over

$12,000 in United States currency, a semi-automatic weapon, and drug

paraphernalia.   N.T., 9/24/13, at 15-16.      Appellant was charged with the

aforementioned crimes.




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      On May 16, 2013, Appellant filed a suppression motion. The trial court

convened a hearing on August 1, 2013, at the conclusion of which the trial

court entered an order denying Appellant’s suppression motion. Following a

stipulated jury trial on September 24, 2013, the trial court rendered its

guilty verdicts.

      On January 31, 2014, the trial court conducted a sentencing hearing

and sentenced Appellant to five (5) to ten (10) years of imprisonment.

Appellant filed a notice of appeal on February 28, 2014. Both Appellant and

the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our review:

      Whether the Trial Court erred in failing to grant [Appellant’s]
      motion to suppress where there was insufficient probable cause
      in the affidavit of the search warrant and where the affiant made
      allegations which were deliberately false or made with reckless
      disregard of the truth.

Appellant’s Brief at 8.

      Appellant argues that the evidence of the contraband found in his

residence should have been suppressed because the search warrant was

based upon factually inaccurate information which the police officers knew or

should have known to be false.     Appellant’s Brief at 12-16.   Specifically,

Appellant claims that in the affidavit of probable cause, Officer Burgunder

averred that Appellant stated the pills in his car were Percocet pills, but

Appellant denied stating that the pills were Percocet, and subsequent tests

revealed they were Vicodin. Id. at 13-14.




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       Our standard of review of the trial court’s denial of a suppression

motion is as follows:

              An appellate court's standard of review in addressing a
       challenge to a trial court's denial of a suppression motion is
       limited to determining whether the factual findings are
       supported by the record and whether the legal conclusions
       drawn from those facts are correct. [Because] the prosecution
       prevailed in the suppression court, we may consider only the
       evidence of the prosecution 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 record supports the factual
       findings of the trial court, we are bound by those facts and may
       reverse only if the legal conclusions drawn therefrom are in
       error.

Commonwealth v. Reese, 31 A.3d 708, 721 (Pa. Super. 2011) (citations

omitted). Moreover, “[i]t is within the suppression court's sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

to their testimony.     The suppression court is free to believe all, some or

none    of   the   evidence    presented    at   the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003)

(citations omitted).

       “In order to secure a valid search warrant, an affiant must provide a

magistrate with information sufficient to persuade a reasonable person that

there is probable cause for a search.        The information must give the

magistrate the opportunity to know and weigh the facts and to determine

objectively whether there is a need to invade a person's privacy to enforce

the law.”    Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super.

2011). In Commonwealth v. Cameron, 664 A.2d 1364, 1367 (Pa. Super.

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1995), we explained that the standard for determining whether probable

cause exists for the issuance of a search warrant is the “totality of the

circumstances” test as set forth below:

           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. And the
     duty of a reviewing court is simply to ensure that the magistrate
     had a substantial basis for ... conclud[ing] that probable cause
     existed.

             However, if a warrant is based upon an affidavit
     which contains deliberate or knowing misstatements of
     material fact, the search warrant must be rendered
     invalid. In deciding whether a misstatement is material, the
     test is not whether the statement strengthens the application for
     the search warrant, but rather whether it is essential to it.

Cameron, 664 A.2d at 1367 (citations omitted) (emphasis added).            See

also Commonwealth v. Clark, 602 A.2d 1323, 1325 (Pa. Super. 1992) (if

a search warrant is based on an affidavit containing deliberate or knowing

misstatements of material fact, the search warrant is invalid).     See also

Commonwealth v. Gomolekoff, 910 A.2d 710, 715 (Pa. Super. 2006)

quoting Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667

(1978) (“To succeed in attacking a warrant, a defendant must come forward

with ‘allegations of deliberate falsehood or of reckless disregard for the

truth, and those allegations must be accompanied by an offer of proof.’”).

     Thus, “while the mere presence of an error in an affidavit of probable

cause supporting a search warrant does not invalidate the warrant, such a

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misstatement of fact will invalidate the warrant if it is deliberate and

material (a material fact being one without which probable cause to search

would not exist).” Baker, 24 A.3d at 1018. Moreover, “[t]he question of

whether a misstatement was deliberately made is to be answered by the

lower court.” Id.

      In the present case, the search warrant for Appellant’s residence was

based upon the averments of Officer Burgunder that he received a tip from a

confidential informant that Appellant was selling Percocet and heroin from a

residence at 3454 Ligonier Street in Pittsburgh. Affidavit of Probable case,

11/1/11. The affidavit stated that Officers Burgunder, Churilla and Ficorillo

conducted independent surveillance of the residence and observed, at

different intervals, people arriving, briefly entering the residence and then

leaving a few minutes later. Id. When the officers saw Appellant leave the

residence, the officers followed his vehicle and observed him quickly change

lanes three times without utilizing a turn signal. Id. The officers conducted

a traffic stop of Appellant’s vehicle and when Officer Burgunder approached

the vehicle, he observed in plain view, a sandwich bag containing white pills

in the center console. Id. The affidavit then reads, in pertinent part:

             I [Officer Burgunder] observed in plain view, a clear
      sandwich baggie containing white pills inside of the opened
      center console. I moved over to the driver’s side window and
      asked [Appellant] what those pills were. He responded that they
      were Percocet pills (Schedule III controlled substance – verified
      by Poison Control of Pittsburgh). I asked [Appellant] if he had a
      prescription for these and he responded “no”.

                                       ***
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             Based on the narcotics recovered from this incident, the
      conducted surveillance, the documented patterns of [Appellant]
      and the information corroborated from the [confidential
      informant], we believe illegal narcotics are being packaged and
      sold from 3454 Ligonier Street, Pittsburgh PA 15201.

Affidavit of Probable Cause, 11/1/11.

      Appellant argues that Officer Burgunder’s statement in the affidavit of

probable cause that the white pills were Percocet, was a deliberate, material

misstatement of fact, rendering the search warrant invalid.       We reiterate

that “[t]he question of whether a misstatement was deliberately made is to

be answered by the lower court.” Baker, 24 A.3d at 1017. It is exclusively

within the province of the trier of fact to believe or disbelieve all or none of

the testimony offered, and when supported by the record, we will not invade

that province. Id. “[M]isstatements of fact will invalidate a search warrant

and require suppression of the fruits of the search only if the misstatements

of fact are deliberate and material.     While we have recognized that the

veracity of facts establishing probable cause recited in an affidavit

supporting a search warrant may be challenged and examined, we have not

suggested that every inaccuracy will justify an exclusion of evidence

obtained as a result of the search.” Baker, 24 A.3d at 1016 (citations and

internal quotations omitted).

      At the suppression hearing, Officer Burgunder, who stated that he had

been involved in numerous arrests related to controlled substances, testified

as follows:



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J-A29025-14


             I observed a clear plastic baggie containing a large amount
       of white oval-shaped pills in the center console.

                                               ***

             I asked [Appellant] about the pills in the plastic bag I could
       see in plain view. ... He said they were, in fact, Percocet and he
       needed them because he had been previously shot in the leg.
       He needed them for pain, although he did not have a
       prescription for them.


N.T., 8/1/13, at 11.

       Once the white pills were removed from Appellant’s vehicle, Officer

Burgunder telephoned Pittsburgh Poison Control and provided them with a

general description of the pill. Id. Pittsburgh Poison Control indicated that

the pills could be oxycodone, a Schedule III controlled substance. Id. at 15-

16.2 However, the officer testified that it was possible that he misheard the

name of the controlled substance, and conceded at the suppression hearing

that the pills were later determined to be Vicodin, not Percocet. Id. at 15-

16, 20-21.

       At   the   conclusion    of   the   suppression   hearing,   the   trial   court

acknowledged Officer Burgunder’s admission he had erroneously written the

wrong controlled substance on the affidavit of probable cause. N.T., 8/1/13,



____________________________________________


2
  Officer Burgunder testified that the Poison Control Center refers to drugs
by the pharmaceutical name and not by their brand name. N.T., 8/1/13, at
16. Officer Burgunder testified that the pharmaceutical name for Percocet is
oxycodone, and the pharmaceutical name for Vicodin is hydrocodone. Id.


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J-A29025-14


at 67. However, the trial court “did not find it to be intentional [or] even ...

reckless.” Id. In its Pa.R.A.P. 1925(a) opinion, the trial court explained:

            [Appellant] has not offered any specific evidence
      suggesting that the affiant made deliberately false statements,
      or made statements with a reckless disregard for the truth.
      Absent compelling information to the contrary, police officers
      may reasonably rely on a person’s statement as to what he has
      in his own vehicle.     The affidavit explains that [Appellant]
      claimed the pills were Percocet and [the trial court] has not been
      provided with any legitimate basis to discount that fact.
      Moreover, the pills found in the vehicle were controlled
      substances nonetheless and [Appellant] did not have a
      prescription to possess them. To the extent that the affidavit
      claims that the pills were Schedule III substances when they
      were actually Schedule II substances, [the trial court] does not
      believe that this mistake materially affects the overall quality of
      the affidavit.

Trial Court Opinion, 4/21/14 at 4.

      We find no error in the trial court’s determination that Officer

Burgunder did not deliberately or recklessly misstate facts in his affidavit of

probable cause. The trial court’s conclusion that Officer Burgunder did not

include a “reckless or deliberate falsehood” in the affidavit constitutes a

credibility determination exclusively within the purview of the trial judge,

who is in a better position to make such judgments. See Commonwealth

v. Mannion, 725 A.2d 196, 205 (Pa. Super. 1999) (“It is not within the

province of this Court, based on a cold record, to substitute our judgment for

that of the suppression court absent an error of law.”); Elmobdy, 823 A.2d

at 183.

      Moreover, in order to invalidate a search warrant, the misstatement

must be material. “In deciding whether a misstatement is material, the test
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is not whether the statement strengthens the application for the search

warrant, but rather whether it is essential to it.”      Commonwealth v.

Cameron, 664 A.2d 1364, 1367 (Pa. Super. 1995). “A material fact is one

without which probable cause to search would not exist.” Commonwealth

v. Clark, 602 A.2d 1323, 1326 (Pa. Super. 1992). Here, the misstatement

regarding whether the pills were Vicodin or Percocet was not material.

Regardless of whether the drugs were Vicodin or Percocet, Officer Burgunder

found Appellant in possession of a prohibited controlled substance, and the

precise type of controlled substance was not essential to the search warrant

application.

       Under the totality of the circumstances, including the fact that the

police officers had received information from a confidential informant that

Appellant was selling controlled substances at 3454 Ligonier Street, and the

officers’ subsequent observations of various individuals repeatedly entering

and leaving that residence in a manner “consistent with street level narcotic

sales”, together with their observation of white pills in plain view in

Appellant’s vehicle, we conclude that the issuing magistrate had a

substantial basis for concluding that probable cause existed, and we find no

error in the trial court’s denial of Appellant’s suppression motion.      N.T,

8/1/13, at 6-7. Although Appellant testified at the suppression hearing that

he never informed Officer Burgunder that the pills in his car were Percocet,

the trial court, within its province as fact finder, was free to disbelieve his

version of the events and credit the testimony of the Commonwealth’s
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J-A29025-14


witnesses. N.T., 8/1/13, at 37; Elmobdy, supra. We will not disturb such

credibility determinations on appeal.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2014




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