J-S20020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    RAYMOND RYAN

                             Appellant               No. 1602 EDA 2019


         Appeal from the Judgment of Sentence Entered May 16, 2019
              In the Court of Common Pleas of Delaware County
              Criminal Division at No.: CP-23-CR-0003965-2017


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                         FILED AUGUST 03, 2020

       Appellant Raymond Ryan appeals from the May 16, 2019 judgment of

sentence entered in the Court of Common Pleas of Delaware County (“trial

court”), following his bench convictions for person not to possess a firearm,

possession with intent to distribute a controlled substance, and possession of

drug paraphernalia.1 Upon review, we affirm.

       The facts and procedural history of this case are undisputed. 2 Briefly,

on June 22, 2017, a warrant was issued for 122 Bartlett Avenue and its

occupant “Trey” for the purposes of searching for and seizing controlled

substances. Trey was not found at 122 Bartlett Avenue during the search.

____________________________________________


1 18 Pa.C.S.A. § 6105(a)(1) and 35 P.S. § 780-113(a)(30) and (32),
respectively.
2Unless otherwise specified, these facts come from the trial court’s November
7, 2019 opinion. See Trial Court Opinion, 11/7/19, at 1-7.
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However, Appellant [] who resides at the address was home during the search.

As a result of the search, Appellant was arrested and charged with the above-

mentioned crimes.

       Appellant filed three pretrial motions: (1) a “Motion to Suppress Physical

Evidence”; (2) a “Motion to Produce Confidential Informant”; and (3) a “Motion

to Suppress Statement”. On August 17, 2018, the trial court conducted a

hearing on the pretrial motions, at which Appellant offered the testimony of

his wife, Vonetta Stokes, and his daughter, J.S. Following the hearing, the

trial court denied Appellant’s pretrial motion to suppress physical evidence

and motion to produce confidential informant.3

       Appellant proceeded to a bench trial, following which the trial court

found him guilty of person not to possess a firearm, possession with intent to

distribute a controlled substance and possession of drug paraphernalia. On

May 16, 2019, the trial court sentenced Appellant to an aggregate term of 4

to 8 years’ imprisonment. Appellant did not file any post-sentence motions.

Rather, he filed a timely appeal. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

       On appeal, Appellant raises two issues for our review.

       [I.] Whether the trial court erred by denying Appellant’s various
       pretrial motions?

____________________________________________


3 Appellant withdrew his pretrial motion to suppress statement.        See N.T.
Hearing, 8/17/18, at 67 (“[W]e withdraw the Motion to                  Suppress
Statement.”).



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       [II.] Whether the trial court erred by precluding the testimony and
       subsequent cross-examination of the affiant to search warrant
       #2070619M0613?

Appellant’s Brief at 3 (unnecessary capitalization omitted).4

       Appellant’s first argument implicates the denials of two distinct pretrial

motions: (1) motion to suppress physical evidence and (2) motion to produce

confidential informant.        We first address Appellant’s argument that the

statements contained in the affidavit accompanying the search warrant were

overbroad and insufficient to support probable cause. Id. at 10. As a result,

Appellant argues that physical evidence should have been suppressed. We

disagree. As we have explained:

       Our 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, we are bound by these findings and may
       reverse only if the court’s legal conclusions are erroneous. Where,
       as here, 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 our plenary review.

Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019)

(quotations and citations omitted). Our scope of review of suppression rulings



____________________________________________


4 To the extent Appellant seeks to assert any claims with respect to his motion
to suppress statement, such claims are not properly before us because, as
noted earlier, Appellant withdraw the motion on August 17, 2018.

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includes only the suppression hearing record and excludes evidence elicited at

trial. In the Interest of L.J., 79 A.3d 1079, 1085 (Pa. 2013).

      With regard to search warrants, we have explained:

      It is well-established that for a search warrant to be
      constitutionally valid, the issuing authority must decide that
      probable cause exists at the time of its issuance, and make this
      determination on facts described within the four corners of the
      supporting affidavit, and closely related in time to the date of
      issuance of the warrant. It is equally well established that a
      reviewing court must pay great deference to an issuing authority’s
      determination of probable cause for the issuance of a search
      warrant. Moreover, our Supreme Court has recognized that
      affidavits supporting search warrants normally are prepared, by
      nonlawyers in the midst and haste of a criminal investigation, and,
      accordingly, said affidavits, should be interpreted in a common
      sense and realistic fashion rather than in a hypertechnical manner.

Commonwealth v. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (quoting

Commonwealth v. Griffin, 24 A.3d 1037, 1043 (Pa. Super. 2011)) (brackets

and quotation marks omitted). “[P]robable cause exists when, based upon a

totality of the circumstances set forth in the affidavit of probable cause, there

is a fair probability that evidence of a crime will be found in a particular place.”

Korn, 139 A.3d at 254 (quoting Commonwealth v. Lyons, 79 A.3d 1053,

1064 (Pa. 2013)).

      Here, based upon our review of the record, we agree with the trial

court’s denial of Appellant’s motion to suppress physical evidence. As the trial

court reasoned:

      In this case, the affidavit of probable cause provided the following
      information.    The qualifications of both the affiant and the
      confidential informant in the area of controlled substances were
      recited. Additionally, the informant’s prior assistance to police
      was recounted which resulted in the seizure of controlled
      substances and arrests which led to convictions. The informant
      advised affiant that a person known as “Trey” was selling drugs
      from his residence at 122 Bartlett Avenue.           Based on this

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      information, on three occasions during the month of June 2017,
      affiant provided currency to the informant to make heroin
      purchases from “Trey” at 122 Bartlett Avenue. Affiant searched
      the informant and provided a quantity of currency before each
      buy. During the second buy affiant observed an unknown black
      juvenile allow the informant into the residence at 122 Bartlett
      Avenue. During the third buy affiant observed “Trey” allow the
      informant into the residence at 122 Bartlett Avenue. For each
      buy, the informant was under constant police surveillance from
      the time he left the affiant to make the purchase and until he
      returned to the affiant. At no time did the informant make any
      other stops or meet with other individuals as he went to and from
      122 Bartlett Avenue. After each buy, the informant returned to
      the affiant without the currency and with clear bags containing
      blue wax paper that housed a white powdery substance. Affiant
      conducted a field test of the substance after each buy and received
      a positive reaction for the presence of heroin. Within 48 hours of
      the application of the search warrant, the informant, while in the
      presence of the affiant, spoke with “Trey” who told the informant
      that he (“Trey”) was in possession of additional heroin available
      for sale at 122 Bartlett Avenue. Magisterial District Judge 32-2-
      46 issued the warrant on June 20, 2017, the same day as filed by
      the affiant.    The magistrate, based on the totality of the
      circumstances presented within the four corners of the affidavit,
      found there was probable cause. The reliability of the informant
      was established by affiant’s past dealings with the informant. The
      information provided by the informant regarding 122 Bartlett
      Avenue was corroborated on three occasions, within a twenty-day
      period, by affiant’s first-hand observations. Within 48 hours of
      application for the search warrant, the informant in the presence
      of the affiant, spoke with “Trey” confirming the availability of
      heroin for sale at 122 Bartlett Avenue. Under the circumstances
      presented in this case, the magistrate rightly concluded that there
      was a fair probability that drug selling was taking place at 122
      Bartlett Avenue. Therefore, Appellant’s motion to suppress the
      search warrant was denied.

Trial Court Opinion, 11/7/19, at 3-4 (record citations omitted).         Given the

foregoing, we agree with the trial court’s analysis and conclude that Appellant

does not obtain relief.

      We now turn to Appellant’s argument that the trial court abused its

discretion   in   denying   his   motion   to   produce   confidential   informant.

Specifically, Appellant argues that the informant “is the only available

eyewitness who could substantiate the criminal allegations against Appellant,”


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i.e., that Appellant possessed narcotics. Appellant’s Brief at 17. As the trial

court and the Commonwealth aptly note, Appellant’s request for disclosure of

the informant’s identity is premised only on his allegation, which we address

in more detail infra, that the affiant willfully included misstatements of fact in

the affidavit accompanying the search warrant. Commonwealth’s Brief at 16;

Trial Court Opinion, 11/7/19, at 7.

      “Our standard of review of claims that a trial court erred in its disposition

of a request for disclosure of an informant’s identity is confined to abuse of

discretion.”    Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super.

2013) (citation omitted).

      Rule of Criminal Procedure 573 provides that a trial court has 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 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).

      The Commonwealth enjoys a qualified privilege to withhold the
      identity of a confidential source. In order to overcome this
      qualified privilege and obtain disclosure of a confidential

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      informant’s identity, a defendant must first establish, pursuant to
      Rule 573(B)(2)(a)(i), that the information sought is material to
      the preparation of the defense and that the request is reasonable.
      Only after the defendant shows that the identity of the confidential
      informant is material to the defense is the trial court required to
      exercise its discretion to determine whether the information
      should be revealed by balancing relevant factors, which are
      initially weighted toward the Commonwealth.

      In striking the proper balance, the court must consider the
      following principles:

              A further limitation on the applicability of the privilege
              arises from the fundamental requirements of fairness.
              Where the disclosure of an informer’s identity, or of
              the contents of his communication, is relevant and
              helpful to the defense of an accused, or is essential to
              a fair determination of a cause, the privilege must give
              way. In these situations[,] the trial court may require
              disclosure and, if the Government withholds the
              information, dismiss the action.

              [N]o fixed rule with respect to disclosure is justifiable.
              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.


Commonwealth v. Marsh, 997 A.2d 318, 321-22 (Pa. 2010) (internal

citations omitted) (alteration in original).

      In Commonwealth v. Baker, 946 A.2d 691 (Pa. Super. 2008), we

reviewed   the    following   principles   regarding   disclosure   of     confidential

informants.

      [A] defendant seeking production of a confidential informant at a
      suppression hearing must show that production is material to his
      defense, reasonable, and in the interest of justice. By this we

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      mean that the defendant must demonstrate some good faith basis
      in fact to believe that a police officer-affiant willfully has included
      misstatements of facts in an affidavit of probable cause which
      misrepresents either the existence of the informant or the
      information conveyed by the informant; that without the
      informant’s information there would not have been probable
      cause; and that production of the informant is the only way in
      which the defendant can substantiate this claim.


Baker, 946 at 693, quoting Commonwealth v. Bonasorte, 486 A.2d 1361,

1373–1374 (Pa. Super. 1984) (en banc). “The defendant need not predict

exactly what the informant will say, but he must demonstrate a reasonable

probability the informant could give evidence that would exonerate him.”

Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001). “[I]f the

only ‘evidence’ produced at the suppression hearing is a defendant’s bald

assertion (e.g., that the informant does not exist or that the affiant

misrepresented information conveyed by the informant), then the defendant

failed to meet his threshold burden.” Bonasorte, supra at 1374. “More is

necessary than a mere assertion by the defendant that such disclosure might

be helpful in establishing a particular defense.” Commonwealth v. Herron,

380 A.2d 1228, 1230 (Pa. 1977).         Only after the defendant has met this

burden will the court weigh the defendant’s proof against the government’s

need to withhold the informant’s identity. See Bonasorte, 486 A.2d at 1274.

      Here, the trial court found that Appellant failed to demonstrate that the

affiant willfully included misstatements of fact in the affidavit.      The court

explained:

      There was no testimony indicating that the affiant either
      misrepresented the existence of the informant or misrepresented
      the information conveyed by the informant. The affidavit did not
      rely solely on information received from the informant. The affiant

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       confirmed the informant’s information by first-hand observations
       which established probable cause. Finally, the Appellant has failed
       to demonstrate that the production of the informant is the only
       way in which he can substantiate his claim.

Trial Court Opinion, 11/7/19, at 7. Thus, given Appellant’s bald assertions

and the affiant’s first-hand observations, we conclude that the trial court did

not abuse its discretion in denying Appellant’s motion to produce confidential

informant. Accordingly, Appellant is not entitled to relief.5

       Lastly, and relatedly, we address Appellant’s claim that the affiant,

Detective Bannar, omitted certain facts from the affidavit accompanying the

search warrant, and thus that the trial court erred in denying his request for

a hearing to review his challenge to the validity of the search warrant.

Appellant’s Brief at 21.

       It is settled that a warrant based on a deliberate or knowing

misstatement of fact would be invalid. Franks v. Delaware, 438 U.S. 154

(1978).    In Franks, the United States Supreme Court held that “where a

defendant demonstrates that an affiant in a warrant affidavit made a false

statement knowingly and intentionally, or with reckless disregard for the truth,

the search warrant must be voided, unless the affidavit’s remaining content is




____________________________________________


5 Insofar as Appellant relies on Commonwealth v. Payne, 656 A.2d 77 (Pa.
1994) to compel a different outcome, such reliance is misplaced and Payne
is distinguishable. There, the appellant asserted a claim for misidentification.
As the Commonwealth points out, here “on one is suggesting that [Appellant]
is the person from whom the informant made his three controlled purchases.”
Commonwealth Brief at 17.

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sufficient to establish probable cause.” Commonwealth v. Rega, 70 A.3d

777, 783 (Pa. 2013). With regard to truthful statements in an affidavit:

     [t]his does not mean “truthful” in the sense that every fact recited
     in the warrant affidavit is necessarily correct, for probable cause
     may be founded upon hearsay and upon information received from
     informants, as well as upon information within the affiant’s own
     knowledge that sometimes must be garnered hastily. But surely
     it is to be “truthful” in the sense that the information put forth is
     believed or appropriately accepted by the affiant as true.

Franks, 438 U.S. at 165.

     Instantly, the trial court reasoned:

     In this case, Appellant presented two witnesses at the suppression
     hearing: [his] wife, Ms. Stokes, and their thirteen-year -old
     daughter, Ms. J.S. These witnesses testified that on two separate
     occasions an individual who came to the house asking for “Trey”
     was turned away. Appellant argued that the omission of the
     family turning away an individual who came to 122 Bartlett
     Avenue asking for “Trey” was highly relevant and that if the
     affidavit had included this information probable cause would have
     been vitiated. Ms. Stokes testified that she, [Appellant], and their
     seven children lived at 122 Bartlett Avenue during the time in
     question. . . . During direct examination, Ms. Stokes testified
     that she did not know “Trey.” She went on to testify that on June
     19th while she and [Appellant] were in their upstairs bedroom,
     their daughter [J.S.] told them there was someone at the door
     asking for “Trey.”      Ms. Stokes and [Appellant] did not go
     downstairs or see who the individual was at the door. Their
     daughter went back downstairs, and Ms. Stokes “heard nothing
     else of it.” Ms. Stokes then testified that on June 20th while she
     and [Appellant] were in their upstairs bedroom, their daughter
     [J.S.] told them that the man was at the door asking for “Trey”
     again. [Appellant] went downstairs to tell the man that no “Trey”
     lived there. On cross-examination, Ms. Stokes testified that
     during the time in question, her eighteen-year-old son [] was
     living at home, did not work, sometimes had friends over, and was
     not present when the search warrant was executed.

     Assuming Ms. Stokes’ testimony to be true, it in no way
     established that the affiant knowingly and intentionally, or with
     reckless disregard for the truth, included a false statement in the
     warrant affidavit. Ms. Stokes’ testimony only established that an
     individual, who may or may not have been the confidential
     informant, looking for “Trey,” was turned away from 122 Bartlett
     Avenue on June 19th and 20th. Even if it is assumed that (1) the
     individual who was turned away was the confidential informant
     and (2) that the affiant knew of his being turned away, this would

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      be an omission of information from the affidavit, not the
      inclusion of a false statement. However, even if the affidavit
      included the allegedly omitted information, there still would have
      been sufficient probable cause based on: the reliability of the
      informant, the information provided by the informant regarding
      122 Bartlett Avenue, corroboration of the information by affiant’s
      first-hand observations of 122 Bartlett Avenue, and the affiant’s
      presence during a conversation between the informant and “Trey”
      within 48 hours of application for the search warrant. Appellant
      failed to establish that the affiant knowingly and intentionally, or
      with reckless disregard for the truth, included a false statement in
      the warrant affidavit. Accordingly, the trial court properly denied
      Appellant’s request to examine the affiant in order to obtain
      details surrounding the confidential informant.


Trial Court Opinion, 11/7/19, at 5-6 (record citations omitted) (emphasis

added). Based on the trial court’s cogent explanation, which we adopt as our

own, we conclude that the court did not err in denying Appellant relief under

Franks. Critically, Appellant’s argument, while couched as the inclusion of a

misstatement of fact, merely implicated the omission from the affidavit of facts

Appellant deemed material. See Commonwealth v. Randolph, 151 A.3d

170, 184 (Pa. Super. 2016) (noting that an affidavit must be judged “by what

it includes, not by what potentially helpful information it omits”), appeal

denied, 168 A.3d 1284 (Pa. 2017).

      In sum, we conclude that the trial court did not: (1) err in denying

Appellant’s motion to suppress physical evidence, (2) abuse its discretion in

denying his motion to produce confidential informant, and (3) err in denying

him relief under Franks.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/20




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