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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

DALTON DAVIS

                            Appellant                   No. 2040 EDA 2015


             Appeal from the Judgment of Sentence June 23, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR0003839-2014


BEFORE: STABILE, MOULTON, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                             FILED MARCH 13, 2017

        Appellant, Dalton Davis, appeals from the June 23, 2015 judgment of

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

court”) sentencing him to two to four years’ incarceration to be followed by

seven years of probation for possession with intent to deliver (“PWID”) and

criminal use of a communication facility.1        Appellant challenges the trial

court’s denial of his omnibus pre-trial motion to suppress. Upon review, we

affirm.

        The trial court described the factual history as follows.

              On December 5, 2013, at approximately 11:00 a.m.,
        Philadelphia Police Officers Bogan and Fitzgerald, set up
        surveillance of a residence located at 3527 Ryan Avenue in
        Philadelphia, Pennsylvania. The officers were parked in separate
____________________________________________


1
    35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512 respectively.
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       cars at the west end of the block looking eastbound towards the
       rear of the 3527 Ryan Avenue residence. At some point the
       officers observed a man walking down an alley towards 3527
       Ryan Avenue. The man was talking on a cell phone as he
       approached the back door of the residence.        Within a few
       minutes, [Appellant] opened the back door of 3527 Ryan Avenue
       and approached the man. Appellant and the man stood within
       close proximity to each other and engaged in a hand-to-hand
       exchange.      Thereafter, [A]ppellant went back inside the
       residence and the man walked eastbound through the alley
       towards Frankford Avenue.       Officers Bogan and Fitzgerald
       attempted to follow the man but were not able to locate him.
       The officers returned to their previous positions and continued
       surveillance of the residence.

              At approximately 11:25 [a].m.,[2] a blue car parked in the
       alley near the rear door of 3527 Ryan Avenue. Within a few
       minutes, [A]ppellant opened the back door of 3527 Ryan Avenue
       and approached the car. Appellant leaned into the passenger
       side window and had a conversation with the driver. Thereafter,
       [A]ppellant went back inside the residence. Officers Bogan and
       Fitzgerald followed the blue car as it left the residence. The
       driver pulled into a parking lot on the 3500 block of Friendship
       Street and the officers apprehended the driver, whereupon the
       officers recovered one (1) clear plastic bag of marijuana and one
       (1) plastic bag that contained ten (10) Xanax pills. The driver
       also showed police her cell phone and revealed [A]ppellant’s
       phone number from her cell phone’s contact list. The driver was
       subsequently arrested. Officer Bogan left the area to prepare a
       search warrant while Officer Fitzgerald remained to continue
       surveillance of the 3527 Ryan Avenue residence.

             At approximately 2:45 p.m., Officers Bogan and Fitzgerald,
       along with four (4) other police officers, executed the warrant at
       3527 Ryan Avenue. Appellant was arrested and detained in the
       basement. The officers searched [A]ppellant and recovered from
       his person were three (3) unlabeled pill bottles, eight (8) dollars,
       and a cell phone. The pill bottles contained the following: thirty-
       two (32) Xanax pills, twenty (20) Oxycontin pills, and fourteen
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2
  The trial court’s opinion lists the time as 11:25 p.m.; however, the record
reflects that it was 11:25 a.m. and this is a mere typographical error.



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      (14) Oxycodone pills. The officers confirmed that [A]ppellant’s
      cell phone number matched the number previously revealed to
      them by the driver of the blue car.

            After the officers had searched [A]ppellant, a man knocked
      on the back door of 3527 Ryan Avenue. Sergeant Schuck and
      Officer Dietz opened the door. Appellant looked at the man in
      the doorway and made the following statement, “That’s Tony.
      He brings me pills for me to sell.” The officers arrested this man
      and recovered a cell phone and a prescription pill bottle
      containing sixty (60) Xanax pills.

             The officers also conducted a search of the 3527 Ryan
      Avenue residence itself and recovered four (4) prescription pill
      bottles each labeled with [A]ppellant’s name. The first pill bottle
      contained sixty-seven (67) Oxycodone pills; the second
      contained seventy-five (75) Oxycodone pills; the third contained
      fifty-eight (58) Clonazepam pills; and the fourth contained
      thirteen (13) Methadone pills. The officers also found seven (7)
      empty, unlabeled pill bottles and three (3) paper prescriptions
      written out to [A]ppelant for Methadone, Oxycontin, and
      Adderall.

Trial Court Opinion, 3/8/2016, at 2-4 (citations to the record omitted).

      Appellant filed a motion to suppress the physical evidence recovered

from the search of 3527 Ryan Avenue. On April 15, 2015, after a hearing on

the motion, the trial court denied Appellant’s motion. After a multi-day trial,

Appellant was convicted of PWID and criminal use of a communication

facility on April 20, 2015. The trial court sentenced Appellant on June 23,

2015, and Appellant filed a timely appeal on July 8, 2015. On November 13,

2015, the trial court directed compliance with Pa.R.A.P. 1925(b), and

Appellant filed his concise statement on November 27, 2015. The trial court

issued a 1925(a) opinion on March 8, 2016.

      Appellant raises one question on appeal, which we quote verbatim.


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      I.    Did the trial court err when it denied [Appellant’s] pre-trial
            motion to suppress physical evidence recovered from 3527
            Ryan Avenue in Philadelphia, PA, as the items recovered
            from that property – i.e., [Appellant’s] home – were
            recovered during the execution of a search warrant and
            that search warrant and supporting affidavit do not contain
            on their face, and within the four corners of the
            documents, sufficient facts to establish probable cause
            necessary to search that property thus violating
            [Appellant’s] rights under the Fourth Amendment of the
            U.S. Constitution and Article I, § 8 of the Pennsylvania
            Constitution[.]

Appellant’s Brief at 4.

      Appellant’s sole argument is that the results of the search warrant

should have been suppressed because the warrant was not supported by

probable cause. Our standard of review of probable cause in a search

warrant is well settled.

      [the] reviewing court is not to conduct a de novo review of the
      issuing authority’s probable cause determination, but is simply to
      determine whether or not there is substantial evidence in the
      record supporting the decision to issue a warrant . . . In so
      doing, the reviewing court must accord deference to the issuing
      authority’s probable cause determination, and must view the
      information offered to establish probable cause in a common-
      sense, non-technical manner.

Comonwealth v. Gagliardi, 128 A.3d 790, 794 (Pa. Super. 2015) (quoting

Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010)). Moreover, “[i]f

a substantial basis exists to support the magistrate’s probable cause finding,

[the trial court] must uphold that finding even if a different magistrate judge

might have found the affidavit insufficient to support a warrant.” Id. at 795

(quoting United States v. Leon, 468 U.S. 897, 914 (1984); citing United



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States v. Miknevich, 638 F.3d 178, 182 (3rd Cir. 2011) (internal citations

and quotations omitted)).    Furthermore, “a magistrate’s determination of

probable cause ‘must be based [up]on facts described within the four

corners of the supporting affidavit.’” Id. (quoting Commonwealth v.

Dukeman, 917 A.2d 338, 341 (Pa. Super. 2007) (citing Commonwealth v.

Smith, 784 A.2d 182, 184 (Pa. Super. 2001))).

     In the matter sub judice the affidavit of probable cause, which we

quote here verbatim, contained the following information.

           On Thursday 12-5-13 P/O Bogan and Fitzgerald received a
     complaint from the Capt’s office of the illegal sales of narcotics
     at 3527 Ryan Ave. The sales were being done in the rear of this
     property.

          On Thursday 12-5-13 at approx. 11:10 a P/O’s Fitzgerald
     and Bogan set up a surveillance of the rear of 3527 Ryan ave.

           At approx.. 11:15 a P/O Fitzgerald observed a W/M
     wearing a black hooded jacket in the rear of 3527 Ryan Ave on
     his cell phone. Approx. 2 minutes later a W/M came from the
     rear of 3527 Ryan ave wearing a gry hooded jacket. The W/M
     with the black hooded jacket hand the w/m in the gry jacket unk
     amount of USC and the W/m wearing the gry jacket had a hand
     to hand. The W/m with the black hooded walked E/B out of the
     alleyway and was followed out by Fitzgerald and Bogan. The
     W/M with the gry hooded jacket re entered the property.

           The officers lost this male on Frankford ave. The officers
     re established a surveillance.

           At approx.. 11:25 a blue vehicle arrived with pa. tag#EJR-
     9998 with a W/F and after approx. 3 minutes a W/M exited the
     rear and approached the passenger side and reached into the
     vehicle. The vehicle pulled off and the male re entered 3527
     Ryan ave.

           The officers followed the vehicle to the 3500 Blk of
     Friendship where she parked and when approached by Bogan

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     and Fitzgerald who ID themselves as POLICE OFFICERS. The
     female who ID herself as Jennifer Cifelli turned over to Fitzgerald
     1 plastic sandwich baggie cont. Marijuana, along with a cigarette
     wrapper cont. 10 blue pills alleged XANAX. This female was
     arrested and Cifelli stated that the only way to buy from Dalton
     was to either text or call him on his cell phone.

           P/O Bogan then conducted a NIK test E and the results
     were positive for Marijuana and placed on PR#3129340 along
     with the 10 XANAX’s, also confiscated was her cell phone place
     on PR#3129341.

           P/O Fitzgerald and Sgt. Schuck are           maintaining   a
     surveillance of this property 3527 Ryan Av.

            P/O bogan conducted a real estate check and the property
     is owned by a Georgeanna Davis.          A voters check showed a
     Dalton Davis was registered to vote from this location. A court
     history check on Davis showed him with a PPN#1019064 with 6
     prior contacts with Police 3 for narcotics.

Ex. D-1, Suppression Hearing, 4/15/15.

     Appellant argues that the affidavit of probable cause failed to establish

a significant link from Appellant to 3527 Ryan Avenue such that there would

be a fair probability that contraband or evidence would be found at 3527

Ryan Avenue.    Appellant’s argument is extraordinarily weak. Appellant was

seen leaving the residence, conducting a transaction, then retreating back

into the residence.   This was repeated a second time after which Jennifer

Cifelli was stopped by the officers, drugs were found on her person, and she

informed the officers that they were purchased from Appellant. Afterwards,

Officer Bogun conducted a check and determined that Appellant was

registered to vote at 3527 Ryan Avenue. Based upon the foregoing, there

was a fair probability that contraband or evidence would be found at 3527



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Ryan Avenue, Appellant’s place of residence.      Appellant’s claim, therefore,

fails.

         Next, Appellant argues that Commonwealth v. Kline, 335 A.2d 361

(Pa. Super. 1975) stands for the proposition that an affidavit must explicitly

state that the drugs were being stored in the apartment. However, Kline is

distinguishable from the matter sub judice as officers here watched

Appellant exit and enter the property and conduct two different transactions

in the driveway of 3527 Ryan Avenue. Appellant did not remain outside in

between transactions, he instead retreated into the property. Upon review

of the affidavit of probable cause it is clear that a substantial basis exists to

support the magistrate’s finding of probable cause.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/13/2017




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