J-S16024-19

                                   2019 PA Super 124

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JEREMY TODD HARLAN                         :
                                               :
                       Appellant               :   No. 1592 MDA 2018

        Appeal from the Judgment of Sentence Entered August 24, 2018
     In the Court of Common Pleas of Lancaster County Criminal Division at
                       No(s): CP-36-CR-0003153-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

OPINION BY MURRAY, J.:                                   FILED APRIL 23, 2019

       Jeremy Todd Harlan (Appellant) appeals pro se1 from the judgment of

sentence imposed after the trial court convicted him of crimes committed

under The Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. §§

780-101 to 780-144, and The Uniform Firearms Act, 18 Pa.C.S.A. §§ 6101-




____________________________________________


1 Appellant was represented by counsel during the trial court proceedings and
at sentencing on August 24, 2018. On August 31, 2018, Appellant filed a
petition to proceed pro se on appeal. On September 27, 2018, the trial court
conducted a hearing pursuant to Commonwealth v. Grazier 713 A.2d 81
(Pa. 1998), after which it entered an order granting Appellant’s request based
on a finding that Appellant’s decision to proceed pro se was “knowing and
voluntary.” Order, 9/27/18. The court also granted Appellant’s trial counsel
“leave to withdraw as counsel of record.” Id.
J-S16024-19


6128.2 On appeal, Appellant challenges the denial of his suppression motion.

After careful consideration, we affirm.

       Appellant summarizes his argument as follows:

             The affidavit of probable cause contained hearsay and
       inadmissible and unsubstantiated double-hearsay with no
       eyewitnesses, no named or reliable and trustworthy informants;
       provided no factual basis from which to determine when the
       unnamed informants allegedly obtained their information; and
       was insufficiently corroborated both by the informants and by an
       independent police investigation. Based on these factual defects,
       the affidavit of probable cause was insufficient to justify a
       probable cause determination and the issuance of a search
       warrant.

Appellant’s Brief at 4.

       The Commonwealth counters that “search warrants are able to rely on

hearsay to establish probable cause as long as the hearsay is reliable,” and

“the information between the two anonymous sources was corroborated by

each   other    as   well   as   with    [an]   independent   police   investigation.”

Commonwealth Brief at 6.          The Commonwealth further refutes Appellant’s

assertion of “stale” information, stating that “information was given using the

present tense and the illegal activity of growing marijuana is not something

that happens quickly.” Id.



____________________________________________


2  Appellant was convicted of two counts of possession of a controlled
substance with intent to deliver and one count of manufacturing a controlled
substance, 35 P.S. § 780-113(a)(30); one count of persons not to possess a
firearm, 18 Pa.C.S.A. § 6105(a); one count of altering or obliterating marks
of identification, 18 Pa.C.S.A. § 6117(a); and one count of possession of drug
paraphernalia, 35 P.S. § 780-113(a)(32).

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      On appeal, we review the trial court’s denial of Appellant’s suppression

motion mindful of the following:

      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. 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.

      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Commonwealth v. Freeman, 150 A.3d 32, 34–35 (Pa. Super. 2016)

(citation omitted).

      At the commencement of the hearing on Appellant’s suppression

motion, the suppression court confirmed:

      THE COURT:             So the warrant basically is the whole issue?

      [DEFENSE COUNSEL]: Correct.

      THE COURT:             Do you understand that to be the issue,
                             [Commonwealth]?

      [COMMONWEALTH]:        Yes, Your Honor.

N.T., 11/27/17, at 3.




                                    -3-
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      The Commonwealth presented one witness, Manheim Borough Police

Detective Anthony Martelle, who testified to being a member of the Lancaster

County Drug Task Force and being the “case officer” who authored and

executed the search warrant for the home located at 1963 Cider Press Road

in Manheim. Id. at 5-6. Detective Martelle stated that he applied for and

executed the warrant on the same day, June 8, 2017. Id. at 9. The warrant

was entered without objection as Commonwealth Exhibit 1. Id. at 10.

      Detective Martelle testified that when he executed the search warrant,

he found property belonging to Appellant, who resided in the home with

another individual, David Brandt.   Id. at 6-7.   Detective Martelle provided

Appellant with his Miranda rights “at least twice that day before we questioned

him.” Id. at 8. After the search, Appellant gave a statement. Id.

      Appellant did not present any witnesses.       Rather, defense counsel

argued that paragraphs 3 and 8 of the warrant, referencing a “confidential

informant” and a “concerned citizen,” were “really both anonymous tips

because there’s no indication of reliability.” N.T., 11/27/17, at 11. Counsel

continued:

      [T]here is no time frame listed . . . as to when those individuals
      received the information; and I believe that’s fatal because then
      all you have is basically two anonymous tips that the person at
      that residence – one containing double hearsay – is selling
      marijuana or has marijuana.

            Then we have to look to the rest of the warrant to see
      whether there’s any independent corroboration of criminal activity
      and there simply is none.


                                     -4-
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Id.

       The trial court stated that “[t]hese type of issues are particularly fact

sensitive, and [involve] what a common sense reading of the information here

would convey to the magisterial district judge who signed the warrant.” N.T.,

11/27/17, at 13-14. The court then suggested that the parties brief the issue.

Appellant and the Commonwealth filed briefs on December 18, 2017 and

December 29, 2017, respectively.           On March 8, 2018, the court issued an

opinion and order denying Appellant’s suppression motion.              The case

proceeded to a bench trial, after which Appellant was convicted of the

aforementioned drug and firearms crimes.3          On August 24, 2018, the trial

court sentenced Appellant to four to ten years of incarceration. This timely

appeal followed.

       On appeal, Appellant assails the “reliability and trustworthiness of the

unnamed informant” referenced in the affidavit of probable cause supporting

the search warrant. Appellant’s Brief at 9. Appellant claims that the court’s

citation to “present tense terminology” has “little to no merit in a case where

unnamed, anonymous sources with unprovable reliability and trustworthiness

are relaying hearsay and double-hearsay and there are no eyewitnesses to

the alleged criminal conduct.” Id. at 22-23. Appellant concludes:



____________________________________________


3 The Honorable James P. Cullen presided at the suppression hearing and
denied Appellant’s suppression motion; the Honorable Howard F. Knisely
presided at Appellant’s bench trial.

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J-S16024-19


      The affidavit of probable cause in the instant case is defective and
      fatal, the foundation of which is an unsubstantiated and
      inadmissible double-hearsay allegation from unnamed and
      anonymous sources, which was uncorroborated by the sources,
      and    insufficiently  and    inappropriately    corroborated     by
      independent police investigation. There is no evidence that these
      unknown individuals exist, or that the allegations were ever made.
      There are no facts to indicate when any of these unnamed and
      anonymous sources obtained the relayed hearsay and double-
      hearsay. There are no eyewitnesses to any criminal conduct. The
      basis of knowledge for the unidentified individual allegedly
      supplying the unnamed informant with the information is
      unknown. All of these unnamed individuals are unable to be
      proven reliable and trustworthy, and there is no indication that
      that any of them have provided accurate information in the past.

Id. at 31-32.


                             Procedural Defect

      Preliminarily, we note that we cannot review the merits of Appellant’s

claim without reviewing the search warrant and supporting affidavit of

probable cause (affidavit). Although Appellant has included the affidavit in his

reproduced record, the affidavit is absent from the certified record.        We

recognize:

      The fundamental tool for appellate review is the official record of
      the events that occurred in the trial court.

                                        ***

      . . . Our law is unequivocal that the responsibility rests upon the
      appellant to ensure that the record certified on appeal is complete
      in the sense that it contains all of the materials necessary for the
      reviewing court to perform its duty.

Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc)

(citations omitted).


                                     -6-
J-S16024-19


      Our review further reveals that the clerk of courts failed to mail to

Appellant a copy of the record documents in contravention of Pennsylvania

Rule of Appellate Procedure 1931(d). The Rule instructs:

      Service of the list of record documents.--The clerk of the
      lower court shall, at the time of the transmittal of the record to
      the appellate court, mail a copy of the list of record documents to
      all counsel of record, or if unrepresented by counsel, to the parties
      at the address they have provided to the clerk. The clerk shall
      note on the docket the giving of such notice.

Pa.R.A.P. 1931(d).

      We have stated that “[t]he purpose of Rule 1931(d) is to assist

appellants by providing notice as to what was transmitted so that remedial

action can be taken if necessary. Rule 1931(d) does not absolve the appellant

from the duty to see that this Court receives all documentation necessary to

substantively address the claims raised on appeal.”        Commonwealth v.

Bongiorno, 905 A.2d 998, 1001 (Pa. Super. 2006) (en banc) (emphasis in

original).   Nonetheless, our Supreme Court has determined that when a

document is “contained only within the Reproduced Record[, but] the accuracy

of the reproduction has not been disputed . . . we may consider it.”

Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012) (citing

Commonwealth v. Killen, 680 A.2d 851, 852 n. 5 (Pa. 1996) (“As a general

rule, matters not part of the record will not be considered on appeal,” but the

Court would “overlook this procedural defect” where, inter alia, appellant

included “the statements in the reproduced record, [and] the Commonwealth

has not objected.”).

                                      -7-
J-S16024-19


       Consonant with the above authority, and considering the particular

circumstances of this case, we will “overlook the procedural defect,” i.e., the

omission of the affidavit from the certified record. Accordingly, we review

Appellant’s claim in light of the undisputed and identical representations of

the affidavit in Appellant’s reproduced record, the Commonwealth’s verbatim

recitation of paragraphs 3 through 9 of the affidavit in its brief, and likewise,

the suppression court’s references to the affidavit in its opinion.         See

Appellant’s Reproduced Record at 3-6 (unpaginated); Commonwealth Brief at

3-5; Suppression Court Opinion, 3/8/18, at 3-4, 10-11.



                                Affidavit Sufficiency

       The copy of the affidavit supplied by Appellant in his reproduced record

– with the form title “Commonwealth of Pennsylvania, Application for Search

Warrant and Authorization” – contains at the top the typed words: “County

of Lancaster District Attorney 00010”; these typed words indicate that the

document is a copy of the affidavit the Commonwealth introduced at the

suppression hearing as Exhibit 1. The body of the 4-page document bears the

affiant signatures of Detective Martelle, and the signature of the magisterial

district judge as the “issuing authority.”4 In addition, each page bears a seal

____________________________________________


4Magisterial District Judges were known as “Justices of the Peace” prior to Act
53 of 1978, when the title became “District Justice.” Thereafter, pursuant to
Act 207 of 2004, the title became “Magisterial District Judge.” See also



                                           -8-
J-S16024-19


that reads: “Commonwealth of Pennsylvania, Lancaster County, Magisterial

District Judge 02-2-05.”

       The affidavit further indicates that David Brandt resides at 1963 Cider

Press Road. Mr. Brandt is named in the affidavit; although he resided with

Mr. Brandt, Appellant is not named. As at the suppression hearing, Appellant

in his appellate argument focuses on paragraphs 3 and 8 of the affidavit.

Paragraph 3 references the confidential informant, who learned about the

marijuana growing operation “from an individual who resided in the

residence,” and paragraph 8 references the concerned citizen, “within the

community of Manheim,” who told Officer Martelle that a male who “lives on

Cider Press Road . . . is in the business of growing marijuana.”

       The affidavit contains a total of ten paragraphs which read:

       1. Your Affiant is currently employed with Manheim Borough Police
       Department since January 1, 2012. During this time, your Affiant
       investigated drug cases involving Marijuana, Synthetic Marijuana,
       Heroin, LSD, Prescription Medications and Methamphetamine.
       These investigations led to the filing of both felony and
       misdemeanor violations of the PA Controlled, Substance, Drug,
       Device and Cosmetic Act. Your Affiant graduated from Mansfield
       University with an Associate’s Degree in 2008 and later from Lock
       Haven University with a Bachelor’s Degree in 2010, both in
       Criminal Justice Administration. You Affiant is a 2011 graduate of
       the Mansfield Police Academy. Your Affiant was employed by the
       Lycoming County Prison from November 2010 to December 2011
       as a Corrections Officer, which included but was not limited to,
____________________________________________


Pennsylvania Supreme Court Order dated January 6, 2005, effective January
29, 2005. In Pennsylvania, Magistrates exist only in the federal court system.




                                           -9-
J-S16024-19


     maintaining a secure facility by assessing prisoners verbal and
     non-verbal cues that may lead to violence. Your Affiant has
     attended several police schools and seminars including
     Understanding the Sovereign Citizen, Hotel Motel Parcel
     Interdiction, Drug Identification, Hidden Compartments, 2015 Pa
     Narcotics Officers’ Association Conference, 2015 Magloclen 22nd
     Narcotic Investigators Conference, U.S. DEA Operation Trojan
     Horse Heroin and Prescription Drug Investigations Course, and
     Outlaw Motorcycle Gangs and the Narcotics Connection. Your
     Affiant was assigned full time to the Lancaster County Drug Task
     Force on January 5, 2015, and has taken part in excess of two
     hundred (200) investigations, either as the case officer or in
     assisting other Detectives.

     2. Common sense and common knowledge dictate that those who
     engage in criminal Conduct attempt to hide their conduct from the
     authorities. Possessors and sellers of illegal drugs, are known
     through personal experience and training, and the experience of
     others in the law enforcement community to do (but not limited
     to) the following:
     a. Frequently maintain on hand large amounts of cash that
     represents proceeds as well as money to finance their ongoing,
     drug business.
     b. Drug traffickers often maintain firearms or other weapons
     within their residences/vehicles or on their person to protect and
     secure drugs, as well as, drug proceeds.
     c. Maintain safety deposit boxes to secret proceeds as well as
     controlled substances and/or documents.
     d. Maintain books, records, receipts, notes, ledgers and the like,
     airline tickets, money orders and other documents relating to the
     sale, transportation, accounting of and for controlled substances.
     Furthermore, your Affiant knows that dealers in illegal substances
     often keep the described materials in their residence/vehicles so
     that they will have ready access to them.
     e. Dealers in controlled substances also commonly maintain
     addresses or telephone numbers in books or on papers which
     reflect information concerning their supplier and/or customers.
     Drug traffickers often utilize pagers, fax machines, computers and
     cellular phones to maintain contacts with drug associates and/or
     to maintain these records.
     f. Sellers and users of controlled substances frequently maintain
     paraphernalia, as described in PA Act 64. Sellers maintain in their
     residence or on their person, paraphernalia for cutting, packaging,


                                   - 10 -
J-S16024-19


     weighing    and    distributing   controlled    substances.    This
     paraphernalia includes but is not limited to, scales, razor blades,
     plastic baggies and small zip lock baggies.

     3. That during the week of 21 May 2017, your Affiant spoke with
     a confidential informant (CI#1) who stated at David Brandt lives
     on Cider Press Road in Manheim and grows Marijuana inside of his
     residence. CI#1 stated that David Brandt grows between 15-20
     Marijuana plants. CI#1 knew this to be true because he/she had
     spoken with an individual who resided in the residence with David
     Brant. CI#1 has demonstrated his/her knowledge of Controlled
     Substances, to specifically include Marijuana, its packaging,
     pricing and terminology.

     4. That during the week of 21 May 2017, your Affiant conducted
     a Pennsylvania Department of Transportation Driver’s License
     search for David Brandt in Manheim. Your Affiant located a
     Pennsylvania Driver’s License photograph for a David Lee Brandt
     DOB: 11/29/1976 with an address of 1963 Cider Press Road
     Manheim, Pennsylvania 17545. Your Affiant showed CI#1 the
     photograph of David Lee Brandt and CI#1 positively identified the
     photograph as the person he/she knew as David Brandt.

     5. That on 29 May 2017, your Affiant conducted surveillance of
     1963 Cider Press Road Manheim, Pennsylvania 17545. During this
     surveillance, your Affiant did see that all of the windows on the
     front of the residence were obstructed from the inside of the
     residence. Through your Affiant’s training and experience, to
     include being the lead case officer or assistant case officer on four
     Marijuana grow operations, it is common for the windows of a
     residence to be obstructed when Marijuana is being grown inside.

     6. That on 31 May 2017, your Affiant send a court order to PPL for
     the hourly, daily and monthly usage for 1963 Cider Press Road
     Manheim, Pennsylvania 17545 for the last 3 months. In your
     Affiant’s experience, the use of fans and high powered lights are
     consistent with indoor Marijuana grow operations to cycle in
     carbon dioxide, cycle out the oxygen the Marijuana plants emit
     and provide light for the plants to grow. Several fans, and lights
     are needed to create an environment for the growth of Marijuana
     plants and to remove heat buildup from the powerful lamps. These
     high powered lamps are set on 12 hour cycles to mimic the sun
     cycles in nature. This is done to enable the plants to survive and
     grow. The fans that are used draw a high amount of electricity

                                    - 11 -
J-S16024-19


     resulting in higher than normal electrical usage. Often times,
     these 12 hour cycles are shown in the electrical usage history.

     7. That on 06 June 2017, Your Affiant received the results of a
     court order sent to PPL for the electrical usage for 196[3] Cider
     Press Road Manheim, Pennsylvania 17545. The records showed
     that during the months of March, April and May there were distinct
     12 hours electrical spikes from 1600 hours to 0300 hours. The
     spikes continued every day for this time period.

     8. That within 24 hours of the application of this, your Affiant
     spoke to a concerned citizen within the community of Manheim.
     He/she told your Affiant that a male named “Dave” who lives on
     Cider Press Road in Manheim Pennsylvania is in the business of
     growing and selling Marijuana. He/she stated that “Dave” grows
     Marijuana in the basement of his residence on Cider Press Road,
     Manheim Pennsylvania. He/she also knew that a “Tara Ritter” also
     lived with “Dave”. He/she knew this to be true based on
     conversations this individual had with “Dave”. That your Affiant
     showed the concerned citizen within the community of Manheim
     the Pennsylvania Driver’s License photograph for a David Lee
     Brandt DOB: 11/29/1976 with an address of 1963 Cider Press
     Road Manheim, Pennsylvania 17545. The concerned citizen within
     the community of Manheim positively identified David Lee Brandt
     as the individual he/she knew as “Dave”:

     9. That a Criminal History Record check was conducted on David
     Lee Brandt DOB: 11/29/1976. This Criminal History Check showed
     that David Lee Brandt pled guilty and was sentenced for a Felony
     Violation of the Pennsylvania Controlled Substance, Drug, Device,
     and Cosmetic Act on three separate occasions. The dates David
     Lee Brandt pled guilty were 20 April 1998; 21 May 1998, and 24
     April 1998.

     10. That based on the aforementioned facts and circumstances,
     your Affiant respectfully requests that a search warrant be issued
     for 1963 Cider Press Road, Manheim Pennsylvania 17545.
.




     Upon review, we emphasize that “the totality of the circumstances” set

forth in the affidavit must be considered when examining whether probable

cause supports the issuance of the search warrant. We have explained:


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J-S16024-19


      [T]he question of whether probable cause exists for the issuance
      of a search warrant must be answered according to the totality of
      the circumstances test articulated in Commonwealth v. Gray,
      503 A.2d 921 (Pa. 1985), and its Pennsylvania progeny, which
      incorporates the reasoning of the United States Supreme Court in
      Illinois v. Gates, 462 U.S. 213 (1983).... The task of the
      magistrate acting as the issuing authority is to make a practical,
      common sense assessment of whether, given all the
      circumstances set forth in the affidavit, a fair probability exists
      that contraband or evidence of a crime will be found in a particular
      place. A search warrant is defective if the issuing authority has
      not been supplied with the necessary information. The chronology
      established by the affidavit of probable cause must be evaluated
      according to a common sense determination.

      Further, probable cause is based on a finding of the probability,
      not a prima facie showing, of criminal activity, and deference is to
      be accorded a magistrate’s finding of probable cause. We must
      limit our inquiry to the information within the four corners of the
      affidavit submitted in support of probable cause when determining
      whether the warrant was issued upon probable cause.

Commonwealth v. Arthur, 62 A.3d 424, 432 (Pa. Super. 2013) (quotation

marks and some citations omitted). See, e.g., Commonwealth v. Wallace,

42 A.3d 1040, 1049-50 (Pa. 2012) (noting that under the Gates test, “we

consider the affidavit of probable cause ‘in its entirety, giving significance to

each relevant piece of information and balancing the relative weights of all the

various indicia of reliability (and unreliability)’ . . . to determine whether the

issuing magistrate had a substantial basis for concluding that probable cause

existed.”). “[T]he task of a magistrate is to make a practical, common sense

determination whether, given all the circumstances set forth in the affidavit,

‘there is a fair probability that contraband or evidence of a crime will be found

in a particular place.’” Commonwealth v. Clark, 28 A.3d 1284, 1290 (Pa.


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2011) (quoting with approval Commonwealth v. Davis, 595 A.2d 1216 (Pa.

Super. 1991).

      The search warrant in this case was for a home located at 1963 Cider

Press Road, in which law enforcement sought to locate controlled substances,

“specifically, but not limited to, marijuana.” Affidavit, 6/8/17, at 1. Appellant,

who lived in the home with David Brandt, assails the reliability of the

confidential informant who relayed that marijuana was being grown in the

house, and a “concerned citizen,” who identified a resident of the home, and

stated that the resident “is in the business of growing and selling marijuana.”

Appellant focuses on these two individuals, and discounts the “totality of

circumstances.”     See Arthur, 62 A.3d at 432.            Appellant focuses on

paragraphs 3 and 8 of the affidavit, and specifically claims that “paragraph 3

of the affidavit is critically defective and fatal.” Appellant’s Brief at 9, 13, 15-

16, 19. However, Appellant’s argument is not supported by the totality of

circumstances set forth in the “four corners” of the affidavit, which in addition

to containing information from the confidential informant and concerned

citizen, references the home’s “obstructed windows common to marijuana

growing,” electricity usage records from the prior three months showing

“distinct 12 hour electrical spikes,” and the criminal history record check of

the home’s other resident, David Brandt, which revealed three prior felony

convictions under The Controlled Substance, Drug, Device and Cosmetic Act.

See Arthur, 62 A.3d at 432.


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     Moreover, as stated by the Commonwealth with regard to the

statements of the confidential informant and concerned citizen, “hearsay

information is sufficient to form the basis of a search warrant.”           See

Commonwealth v. Huntington, 924 A.2d 1252, 1255 (Pa. Super. 2007).

We have explained:

     A search warrant is defective if the issuing authority has not been
     supplied with the necessary information.           The chronology
     established by the affidavit of probable cause must be evaluated
     according to a “common sense” determination.

     Hearsay information is sufficient to form the basis of a
     search warrant as long as the issuing authority has been
     provided with sufficient information to make a “neutral”
     and “detached” decision about whether there is a fair
     probability that contraband or evidence of a crime will be
     found in a particular place. The duty of the reviewing court is
     simply to verify that the issuing magistrate had a “substantial
     basis for concluding that probable cause existed.”        The
     uncorroborated hearsay of an unidentified informant may
     be accepted as a credible basis for issuing a search warrant
     if the affidavit of probable cause avers circumstances that
     support the conclusion that the informant was credible.
     Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–538
     (2001). . . .

            Under our law, the focus is on the information provided to
     the issuing authority and its response to that information.
     Probable cause is a practical and fluid concept that turns on the
     assessment of probabilities in particular factual contexts, which
     cannot readily be reduced to a neat set of legal rules. The role of
     the magistrate, as the issuing authority, is to make a “practical,
     common sense decision” of whether, “given all the circumstances
     set forth in the affidavit,” including the veracity and basis of
     knowledge of any persons supplying hearsay information, there is
     a “fair probability” that contraband or evidence of a crime will be
     found in a particular place. The role of the reviewing court and the
     appellate court is to ascertain whether the issuing magistrate
     appropriately determined that probable cause existed for the
     issuance of the warrant. Probable cause is based on a finding of

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J-S16024-19


     probability and does not require a prima facie showing of criminal
     activity. Both the reviewing court and this Court must
     accord deference to a magistrate’s finding of probable
     cause.

Id. at 1255–56 (some citations omitted) (emphasis added).

     Here, the suppression court observed that “there is nothing in the

affidavit to indicate that the confidential informant from paragraph 3 had

participated in the crime or had provided reliable information previously.

Accordingly, the source’s information standing alone would be insufficient

absent corroboration.”    Suppression Court Opinion, 3/8/18, at 10-11.

However, the court proceeded to address the circumstances that supported a

conclusion that the informant was credible, noting:

            Corroboration takes two forms here. First, the information
     was corroborated by police investigation. Unlike in Wallace,
     where police did not detail their investigative steps, the affidavit
     of probable cause recites that Detective Martelle undertook
     surveillance of the property identified by the informant and
     observed that all the front windows were covered from the inside
     which, in his experience, was common when marijuana was being
     grown inside. (Aff. at ¶ 5). Detective Martelle also stated in the
     affidavit that he obtained a court order for electric usage at the
     property which showed “distinct 12 hour electric spikes” every day
     during March, April and May of 2017, (id. at ¶ 7), and that such
     spikes, in his experience, were “consistent with indoor marijuana
     grow operations,” (id. at ¶ 6). These spikes in electric usage,
     occurring daily over an extended period, during the overnight
     hours, and in a private residence rather than in some business
     likely to operating overnight, are strongly suggestive of that the
     conduct alleged was, in fact, going on contemporaneously with the
     representations made to Detective Martelle. Additionally, as in
     [Commonwealth v.] Singleton, [603 A.2d 1072 (Pa. Super.
     1992)], the information from the confidential informant was
     supported by that which came from the second source, the
     concerned citizen noted in paragraph 8 of the affidavit of probable
     cause.

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J-S16024-19



Id. at 11.

      The suppression court then concluded:

             Viewing the affidavit in its entirety, there was sufficient
      information for the issuing magistrate to conclude there was a fair
      probability that contraband or evidence of criminality would be
      found on the premises which Detective Martelle sought to search.
      Two individuals independently told Detective Martelle that a
      particular person at a particular address “grows” marijuana in his
      home. The manner in which this information was conveyed to the
      detective and by the detective to the magistrate, reasonably
      suggested that the information was current and, when the
      detective undertook an independent investigation to corroborate
      that information, he determined that the pattern of electric usage
      at that home was consistent with an ongoing indoor marijuana
      growth operation. Under these circumstances, the Court is
      unwilling to substitute its judgment for that of the magistrate who
      issued the warrant.

Id. at 11-12 (emphasis added).

      As discussed above, the suppression court’s factual findings are

supported by the record and its legal conclusions are correct, and as a

reviewing court, we agree that the magisterial district judge appropriately

determined that probable cause existed for the issuance of the warrant. See

Freeman, 150 A.3d at 34-35; Huntington, 924 A.2d at 1255. Accordingly,

we do not disturb the denial of Appellant’s suppression motion.




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J-S16024-19




     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2019




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