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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    v.                   :
                                         :
JEREMY GENE AICHELE,                     :         No. 1484 MDA 2015
                                         :
                         Appellant       :


              Appeal from the Judgment of Sentence, July 1, 2015,
                in the Court of Common Pleas of Franklin County
                Criminal Division at No. CP-28-CR-0001516-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., AND STEVENS, P.J.E.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 13, 2016

        Jeremy Gene Aichele appeals the judgment of sentence in which the

Court of Common Pleas of Franklin County sentenced him to serve

42-100 months for possession with intent to deliver a controlled substance

and criminal use of a communications facility.1         Specifically, appellant

challenges the denial of his motion to suppress. We affirm.

        On July 14, 2014, Officer Bryan P. Chappell, Jr. (“Officer Chappell”),

applied for a warrant to search 205 West Fourth Street, Waynesboro,

Pennsylvania.     Officer Chappell requested the issuance of the warrant to

search for heroin, illegal controlled narcotics, evidence of funds or property




* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512, respectively.
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obtained from the distribution, manufacture, or possession of controlled

substances, any paraphernalia, or any electronic devices used to facilitate

the sale or distribution of controlled substances.     Appellant resided at

205 West Fourth Street.

      In the affidavit of probable cause, which was attached to the warrant

application, Officer Chappell stated:

            3)    This investigation involves the distribution of
                  heroin at 205 West Fourth Street within the
                  borough of Waynesboro.

            4)    On July 14, 2014 I met with a Confidential
                  Informant about heroin distribution happening
                  at 205 West Fourth Street.      A white male
                  known as Jeremy Aichele is the target of this
                  investigation. The Confidential Informant said
                  that they are able to make a purchase of a
                  quantity of heroin from 205 West Fourth
                  Street, specifically from Jeremy Aichele. The
                  Confidential Informant said that they are able
                  to contact Jeremy Aichele via cellular
                  telephone number (717) 655----- and make a
                  request to purchase a quantity of heroin. The
                  phone number (717) 655----- is on record for
                  Jeremy Aichele through the Waynesboro Police
                  Department Records.

            5)    The Confidential Informant has stated that
                  they have purchased heroin from Jeremy
                  Aichele at 205 West Fourth Street at least
                  every other day for the last couple of weeks
                  since Jeremy Aichele moved into the residence.
                  The Confidential Informant stated that they
                  contact Jeremy Aichele via cellular telephone
                  and when the Confidential Informant arrives at
                  the residence, Jeremy Aichele already has the
                  heroin weighed out and waiting.




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            6)    The Confidential Informant will make a phone
                  call to Jeremy Aichele at (717) 655----- and
                  set up a purchase of a quantity of heroin for
                  $170.00 from the residence at 205 West
                  Fourth Street Waynesboro. The Confidential
                  Informant will be searched for illegal
                  contraband and US Currency prior to and after
                  the purchase of a quantity of heroin. After the
                  Confidential Informant is searched, the
                  Confidential Informant will be provided pre-
                  recorded US Currency.          The Confidential
                  Informant will be followed to 205 West Fourth
                  Street where the Confidential Informant will
                  enter the residence and make a purchase of a
                  quantity of heroin. The Confidential Informant
                  will exit the residence and will be followed to a
                  predetermined location.          Once at the
                  predetermined       location the     Confidential
                  Informant will provide Investigators with a
                  quantity of heroin. The heroin will be field
                  tested. Once the heroin is tested and it shows
                  a presumptive positive for the presence of
                  heroin probable cause will have been
                  established that drugs are being contained and
                  sold at the residence of 205 West Fourth
                  Stree [sic] Waynesboro.      Only when these
                  events have taken place, will probable cause
                  have been established authorizing a search to
                  be conducted at 205 West Fourth Street.

            7)    The Confidential Informants [sic] information
                  has been corroborated by the purchase of
                  heroin.   Other information that has been
                  provided by the Confidential Informant has
                  been corroborated by Police Department
                  Records and personal knowledge by this
                  Officer.

Affidavit of probable cause (“Affidavit”), 7/14/14 at 1-2 ¶¶ 3-7.

      A magisterial district judge issued the warrant on July 14, 2014. After

the confidential informant (“CI”) made the purchase of heroin for $170 as



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outlined in the Affidavit, the Waynesboro Police Department executed the

search warrant for 205 West Fourth Street. The search uncovered heroin, a

digital scale, drug paraphernalia, and approximately $1,000, including the

$170 that was used in the CI’s controlled buy. On July 14, 2014, appellant

was arrested and charged with delivery2 and possession with intent to

manufacture or deliver heroin and one count of criminal use of a

communications facility.

        On October 16, 2014, appellant filed an omnibus motion and alleged

that the anticipatory search warrant was issued based on insufficient

probable cause:

              7.    The information provided in the Affidavit of
                    Probable Cause and Application for Search
                    warrant suggests that the search warrant was
                    issued based primarily on the assertion of a
                    confidential  informant    that he/she    had
                    purchased drugs from Jeremy Aichele at the
                    address in the recent past and would do so
                    through a controlled buy with the police prior
                    to execution of the warrant.

              8.    The only way this information from the
                    informant was verified, as explained in the four
                    corners of the document, was by checking the
                    phone number given by the informant and
                    confirming that it matched the number on
                    record for Aichele at the Waynesboro Police
                    Department.

                    9.    The Affiant also makes a vague
                    statement in the Affidavit that the ‘Confidential
                    Informant’s information has been corroborated
                    by the purchase of heroin,’ and as no previous

2
    Appellant was not convicted of this charge.


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                 controlled buy was mentioned, it can only be
                 assumed that this statement is referring to the
                 previous buys allegedly made by the informant
                 himself/herself without police corroboration.

           10.   Therefore, this statement does nothing to
                 bolster the reliability of the informant’s
                 assertions.

           11.   Additionally, the Affiant states cryptically that
                 ‘Other information that has been provided by
                 the    Confidential    Informant    has     been
                 corroborated by Police Department Records
                 and personal knowledge by this Officer.’

           12.   Based on the information contained in the
                 Affidavit, we can only assume that this
                 information was Aichele’s phone number and
                 possibly the address or owner of the residence.

           13.   There is no information provided in the
                 Affidavit which could lead us to believe the
                 police were able to corroborate anything
                 beyond that information.

           14.   Therefore, there was insufficient probable
                 cause to issue an anticipatory search warrant.

Omnibus motion, 10/16/14 at 1-2 ¶¶7-14.

     After it received the Commonwealth’s response and heard oral

argument, the trial court denied the motion:

           The Court does not take lightly the importance of
           protecting individuals from unreasonable searches
           and seizures as required under the Fourth
           Amendment to the United States Constitution.
           However, the Court finds that the Affidavit of
           Probable Cause in this case was sufficient to satisfy
           the two prong test articulated in [United States v.]
           Grubbs [547 U.S. 90 (2006)] necessary for issuing
           an anticipatory search warrant. There was sufficient
           probable cause to believe that if the triggering


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              condition, the controlled buy, occurred there would
              be a fair probability of contraband or evidence found
              at [appellant’s] residence. More importantly, and
              distinct from [Commonwealth v.] Wallace [42
              A.3d 1040 (Pa. 2012)], there was probable cause to
              believe that the controlled buy itself would occur
              based on the information contained in the affidavit.
              As correctly highlighted by the Commonwealth,
              although the information provided by the CI was a
              significant    contributing   factor in   establishing
              probable cause, the affidavit also confirms that the
              information was corroborated by Waynesboro Police
              department records and personal knowledge of the
              Affiant.     Further, this Court finds [appellant’s]
              attempt to analogize the case at hand with the
              decision in Wallace to be unavailing. The instant
              matter is clearly factually distinguishable from
              Wallace for the numerous aforementioned reasons.
              For all of the above mentioned reasons, [appellant’s]
              Omnibus Motion must be denied.

Trial court opinion, 1/29/15 at 11-12.

         Appellant raises the following issue for this court’s review: “Did the

trial court err in denying Appellant’s Motion to Suppress?” (Appellant’s brief

at 4.)

                    Initially, we note that our standard of review
              when an appellant appeals the denial of a
              suppression motion is well established.      We are
              limited to determining whether the lower court’s
              factual findings are supported by the record and
              whether the legal conclusions drawn therefrom are
              correct.    We may consider the evidence of the
              witnesses offered by the Commonwealth, as verdict
              winner, and only so much of the evidence presented
              by [the] defense that is not contradicted when
              examined in the context of the record as a whole.
              We are bound by facts supported by the record and
              may reverse only if the legal conclusions reached by
              the court were erroneous.       Commonwealth v.
              O’Black, 897 A.2d 1234, 1240 (Pa.Super. 2006),


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            citing Commonwealth v. Scott, 878 A.2d 874, 877
            (Pa.Super. 2005), appeal denied, 586 Pa. 749, 892
            A.2d 823 (2005).

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006). “It is

within the sole province of the suppression court judge to weigh the

credibility of the witnesses, and he or she is entitled to believe all, part, or

none of the evidence presented.” Commonwealth v. Snell, 811 A.2d 581,

584 (Pa.Super. 2002), appeal denied, 820 A.2d 162 (Pa. 2003) (citation

omitted).

      An anticipatory search warrant is a search warrant that is based on an

affidavit which shows probable cause that at some future time, but not at

the time of the affidavit, certain evidence will be located at the place

specified in the affidavit.   Commonwealth v. Glass, 754 A.2d 655 (Pa.

2000).

      In United States v. Grubbs, 547 U.S. 90 (2006), the United States

Supreme Court explained an anticipatory warrant:

            [F]or a conditioned anticipatory warrant to comply
            with the Fourth Amendment’s requirement of
            probable cause, two prerequisites of probability must
            be satisfied. It must be true not only that if the
            triggering condition occurs there is a fair probability
            that contraband or evidence of a crime will be found
            in a particular place, but also that there is probable
            cause to believe the triggering condition will occur.
            The supporting affidavit must provide the magistrate
            with sufficient information to evaluate both aspects
            of the probable cause determination.

Id. at 96-97.



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      In evaluating an affidavit for probable cause to issue a warrant, an

issuing magistrate is 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.” Glass, 754 A.2d at 661 (citations omitted).

      Appellant contends that there was not sufficient probable cause to

believe the triggering condition, that the CI would purchase heroin from

appellant at appellant’s residence, would occur. Specifically, appellant cites

four items in the affidavit which Officer Chappell relied on to establish

probable cause and which appellant believes did not support such a finding:

1) an assertion by the CI that he would purchase heroin from appellant;

2) the CI’s provision of a telephone number which was on record with the

police as appellant’s phone number; 3) the “method” through which

appellant allegedly sold the heroin; and 4) the fact that “other information”

provided by the CI was corroborated by the police.

      With respect to the CI’s assertion that he would purchase heroin from

appellant, appellant argues that even though the affidavit states that the CI

reported that he could purchase heroin from appellant and had done so for

“at least every other day for the past couple of weeks” (Affidavit at 1 ¶5),

the Affidavit does not address the CI’s reliability.         Appellant further

complains that the Affidavit fails to state whether the Police Department had



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ever used the CI previously. Without more information to demonstrate the

credibility of the CI, appellant argues that the assertions by the CI are

insufficient to establish probable cause.

      However, the record reflects that the CI admitted to having purchased

heroin from appellant numerous times, including every other day for the

previous two weeks. The CI’s admission that he had purchased heroin from

appellant at that address very recently and very frequently provides

adequate indication that the CI had a basis of knowledge regarding

appellant’s activities.   Further, Officer Chappell stated in the Affidavit that

other information provided by the CI was corroborated by police department

records and Officer Chappell’s own personal knowledge.

      Next, appellant argues that the CI’s provision of appellant’s cellular

telephone number, which was the same as the phone number the police had

on file for appellant, does not render the CI’s claims reliable. For support,

appellant cites to Commonwealth v. Wallace, 42 A.3d 1040 (Pa. 2012).

In Wallace, our supreme court held that an informant’s information about

Gregory Wallace (“Wallace”), a suspected drug dealer, that listed Wallace’s

address and home phone number, both of which the police independently

verified, did not provide indicia of reliability of the informant because “these

facts constituted readily ascertainable public information of a very general

nature and, thus, did not reveal a particular familiarity with [Wallace’s]




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affairs which would bolster the reliability of the confidential informant’s tip.”

Id. at 1052.

      The trial court distinguished Wallace from the present case:

                   Lastly, the Court would note that the type of
            phone number in the instant matter is different than
            the one involved in Wallace. The phone number
            contained in the affidavit in Wallace was the home
            number of the defendant’s residence. However, the
            phone number in the case at bar was [appellant’s]
            cell phone number. It is entirely understandable
            why the Wallace Court concluded that an
            individual’s home phone number is readily
            ascertainable public information of a very general
            nature.      Many home phone numbers can be
            discovered by any member of the public with relative
            ease simply by using a phone book. Most list an
            individual’s name, home address, and the telephone
            number. Thus, verifying that an individual lived or
            owned a particular residence and learning the home
            phone number associated with it is a simple task.
            The same process cannot be used to obtain an
            individual’s cell phone number. In this case the
            affidavit states that the CI was able to contact
            [appellant] through his cell phone number. This cell
            phone number was only able to be verified as
            [appellant’s] through the Waynesboro police records.
            Therefore in this case it cannot be said that
            [appellant’s] cell phone number constituted ‘readily
            ascertainable public information of a very general
            nature.’     The Court would note this important
            distinction from Wallace.

Trial court opinion, 1/29/15 at 10-11.

      We agree with the trial court. There is a significant factual difference

from Wallace. The fact that the CI had appellant’s cell phone number and

that number was corroborated by the police does support the reliability of

the CI.


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       Next, appellant contends that the CI’s description of the method by

which appellant sold heroin does not support the CI’s credibility and does not

support a determination of probable cause. In the Affidavit, Officer Chappell

stated that the CI said that he would call appellant to make a buy of heroin

and when he arrived at appellant’s residence, appellant would have the

heroin weighed and waiting for him.             Appellant argues that this is a

description of a generic drug deal and does nothing to bolster the CI’s

reliability or credibility.

       While this description may describe a typical drug deal, it does not

mean it did not accurately describe how the CI purchased heroin from

appellant and could support a determination that there was a fair probability

that contraband or other evidence of a crime could be found at 205 West

Fourth Street. It was the province of the fact-finder to credit this statement;

we may not make our own credibility determinations.

       Appellant next contends that the statement on the Affidavit that

“[o]ther information that has been provided by the Confidential Informant

has   been    corroborated    by   Police   Department   Records   and   personal

knowledge by this Officer” (Affidavit at 2 ¶7) does not provide any clarity as

to what Officer Chappell is referring and without any additional detail this

statement cannot serve as corroborating evidence.         The trial court stated

that “[a]lthough not expanded upon in the affidavit, the Affiant’s personal

knowledge appears to include that the Affiant had investigated [appellant]



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for drug activity prior to receiving any information regarding the CI

regarding the current charges.”        (Trial court opinion, 1/29/15 at 10.)

Appellant argues that the trial court cannot make this inference based on the

information contained in the Affidavit.

      While this statement may or may not illustrate that the police were

investigating appellant, personal knowledge of the inside information

provided by a confidential informant can impart additional reliability to a tip.

Commonwealth v. Smith, 784 A.2d 182, 187 (Pa.Super. 2001). The fact

that Officer Chappell attested to the veracity of other information supplied

by the CI supports the credibility and reliability of the CI and bolsters the

case for the issuance of a warrant.

      Finally, appellant argues that these averments taken together do not

meet the totality of the circumstances test where an issuing magistrate must

determine that there is a fair probability that contraband or evidence of a

crime will be found in a particular place based on all the circumstances set

forth in the affidavit.   Commonwealth v. Coleman, 830 A.2d 554 (Pa.

2003). Essentially, appellant restates his earlier arguments concerning each

averment in the affidavit. Because we have already determined that these

averments standing alone supported the issuance of a warrant, it stands to

reason that the averments taken together could have led the magistrate to

conclude that there was a good chance that the issuance of a warrant would




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result in contraband or evidence of a crime.3 The trial court did not err when

it denied the motion to suppress.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




3
  Appellant also points to the statement in the Affidavit that “the Confidential
Informant’s information has been corroborated by the purchase of heroin”
(Affidavit at 2 ¶7), and argues that Officer Chappell refers to the CI’s
statement that he previously purchased heroin from appellant and nothing
more. It is unclear exactly what is meant by this statement. However,
whether that proves to undermine the determination of probable cause must
be examined in light of all of the totality of circumstances. This court has
already determined that there was sufficient information to issue a warrant
given the totality of circumstances.


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