J. A19007/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
DEBRA SEGAL,                                :          No. 420 EDA 2015
                                            :
                          Appellant         :


            Appeal from the Judgment of Sentence, January 5, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0015667-2013


BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED OCTOBER 12, 2016

        Debra Segal appeals from the judgment of sentence entered on

January 5, 2015 in the Court of Common Pleas of Philadelphia County

following her conviction in a waiver trial of possession with intent to deliver.1

The trial court sentenced appellant to 12 months’ probation. We affirm.

        The trial court set forth the following:

                   According to Commonwealth of Pennsylvania
              Search Warrant and Affidavit #175831 for
              2413 Amber Street:

                    On June 25, 2013, Police Officer Thomas Kuhn
              set up surveillance outside 2413 Amber Street, in
              Philadelphia, PA, based on information Police
              Officer Thomas Tolstoy gave him earlier that month.
              Officer Tolstoy informed Officer Kuhn that a white

* Former Justice specially assigned to the Superior Court.
1
    35 P.S. § 780-113(a)(16).
J. A19007/16


          woman named Debbie McCloskey was selling pills
          and methamphetamine, and had two loaded
          weapons inside 2413 Amber Street. During this
          surveillance, Officer Kuhn spoke with a concerned
          citizen on the block who informed him that a woman
          named Linda also was selling pills from 2413 Amber
          Street.    According to the concerned citizen, this
          activity typically took place between 8 [p.m.] and
          2 [a.m.] because “Linda” was under the impression
          that the police could not serve warrants at night.

                 On July 31, 2013, Officer Kuhn, along with
          Officers Gina Jackson and Charles Kapusniak, set up
          surveillance on 2413 Amber Street.           Around
          7:45 [p.m.], a silver Honda Accord pulled up in front
          of the house. The passenger, later identified as
          Alexander Velez, exited the car, knocked on the door
          of 2413 Amber [Street], and went inside where he
          remained for two minutes.       Mr. Velez then left
          2413 Amber [Street], returned to the car, and
          showed the driver items in his hand. The driver
          handed Mr. Velez a white napkin and placed the
          items inside the napkin. The car drove off, and the
          officers followed, stopping the car less than a mile
          away at the intersection of Kensington and Lehigh
          [Avenues].      The officers recovered one napkin
          containing 50 Xanax pills and placed Mr. Velez and
          the driver under arrest.

                Commonwealth       of   Pennsylvania Search
          Warrant and Affidavit #175831 listed the following
          items to be searched for and seized:

                “(Xanax), pills or any substance classified as a
          controlled substance under the Pa.controlled [sic]
          substance act of 1972. Any paraphernalia used for
          packingof [sic] said items for sale or distribution.
          Any fruits of the crime[,] including USC, weapons,
          proof of ownership, hidden compartments or safes.”

                At 11:00 [p.m.] on July 31, 2013, officers
          executed Search Warrant #175831 on 2413 Amber
          [Street] and recovered a bottle of Xanax from
          Ms. Segal’s person and $149 from her purse.


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Trial court opinion, 7/1/15 at 1-2.

      The record reflects that on February 4, 2015, appellant filed her notice

of appeal to this court. Appellant complied with the trial court’s order to file

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal

and also filed a motion for extension of time to file a supplemental

Rule 1925(b) statement following receipt of the notes of testimony. The trial

court granted the motion, and appellant thereafter filed her supplemental

Rule 1925(b) statement.     The trial court filed its Rule 1925(a) opinion on

July 1, 2015, followed by a supplemental Rule 1925(a) opinion on

December 14, 2015.

      Appellant raises the following issue for our review:

            Did not the suppression court err in denying
            appellant’s motion to suppress physical evidence
            where the police executed a search warrant that
            lacked probable cause because it failed to
            demonstrate a reasonable likelihood that evidence of
            criminal activity would be found at the property
            described therein, as it contained uncorroborated
            allegations from anonymous sources that persons
            named Debbie McCloskey and/or “Linda” were selling
            drugs inside the property, and lacked any
            information regarding the cited sources’ reliability or
            their bases of knowledge for the allegations
            contained therein?

Appellant’s brief at 4.

            Our standard of review of a denial of suppression is
            whether the record supports the trial court’s factual
            findings and whether the legal conclusions drawn
            therefrom are free from error. Our scope of review
            is limited; we may consider only the evidence of the


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            prosecution and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole. Where the record
            supports the findings of the suppression court, we
            are bound by those facts and may reverse only if the
            court erred in reaching its legal conclusions based
            upon the facts.

Commonwealth v. Galendez, 27 A.3d 1042, 1045 (Pa.Super. 2011)

(en banc) (citation omitted).

      “The Fourth Amendment to the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures, thereby ensuring the ‘right of each

individual to be let alone.’” Commonwealth v. By, 812 A.2d 1250, 1254

(Pa.Super. 2002) (citations omitted).       Under both federal and state

constitutions, search warrants must be supported by probable cause.

Commonwealth v. Hoppert, 39 A.3d 358, 361-362 (Pa.Super. 2012),

appeal denied, 57 A.3d 68 (Pa. 2012).         Pennsylvania Rule of Criminal

Procedure 203 addresses the requirements for the issuance of a search

warrant and provides that “[n]o search warrant shall issue but upon

probable cause supported by one or more affidavits sworn to before the

issuing authority in person or using advanced communication technology”

and that “[t]he issuing authority, in determining whether probable cause has

been established, may not consider any evidence outside the affidavits.”

Pa.R.Crim.P. 203(B).

            In [Pennsylvania], the question of whether probable
            cause exists for the issuance of a search warrant


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             must be answered according to the totality of the
             circumstances test articulated in Commonwealth v.
             Gray, 503 A.2d 921 (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.

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

citations,   quotation    marks,   and    parallel   citations   omitted),    quoting

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

      Because reasonable minds can differ as to whether a particular

affidavit establishes probable cause, the preference for warrants is most

appropriately effectuated by according the magistrate’s determination great

deference.    Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010)

(citation omitted).      “A grudging or negative attitude by reviewing courts

towards warrants . . . is inconsistent with the Fourth Amendment’s strong

preference for searches conducted pursuant to a warrant; courts should not

invalidate warrants by interpreting affidavits in a hypertechnical, rather than

a commonsense, manner.” Id. at 655-656 (citation omitted). “Further, a

reviewing court is not to conduct a de novo review of the issuing authority’s

probable cause determination . . . .”       Id. at 655 (citation omitted).       The


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proper inquiry is whether record evidence substantially supports the decision

to issue the warrant. Id. Moreover, the determination must be based on

the facts described within the four corners of the supporting affidavit.

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

(citation omitted). Finally, a finding of probable cause is based on a finding

of probability of criminality, not a prima facie showing. Arthur, 62 A.3d at

432.

       Here, appellant contends that the affidavit failed to establish probable

cause because it contained:

             (1) an officer’s bare assertion that drugs were being
             sold out of the residence, unaccompanied by any
             basis for that information, (2) a vague and
             nondescriptive statement by a “concerned citizen”
             that someone named “Linda” was selling drugs out of
             the house, when surveillance on that day provided
             absolutely no corroboration of any criminal activity at
             all, (3) followed by the recovery of pills after seeing
             one single individual in the span of two months
             entering the property for two minutes with no
             observance of any drug sales or any females.

Appellant’s brief at 25. We disagree.

       The affidavit provided that the affiant received information from a

fellow police officer that drugs were being sold out of the residence.     The

veracity of the source of that information was corroborated by the concerned

citizen who told the affiant that drugs were being sold out of the house.

Although appellant attempts to challenge the reliability of the concerned

citizen, our supreme court has “repeatedly rejected the argument that an



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officer who relies on statements from an ordinary citizen, as opposed to a

police informant, must establish the citizen’s credibility and reliability.”

Commonwealth       v.   Lyons,    79    A.3d   1053,   1064-1065   (Pa.   2013).

Additionally, the information provided by the affiant’s police colleague and

the information provided by the concerned citizen were then corroborated by

independent police investigation.      Specifically, the affiant, an experienced

police officer, having worked in the narcotics division since 2000 and having

participated in over 1,000 narcotics arrests, observed a car pull up to the

residence. The affiant then observed an individual get out of the car, go into

the residence for about two minutes, exit the residence, get back into the

car, and dump items that were in his hand into a white napkin before the

driver of the car pulled away. After the affiant and two other officers pulled

the vehicle over, they found a white napkin containing 50 Xanax pills inside

the car.

      Therefore, based on the totality of the averments contained within the

four corners of the affidavit and interpreted in a common-sense manner, a

fair probability existed that law enforcement would find evidence of drug

sales inside the residence.      Because the record demonstrates that the

magistrate had a substantial basis to conclude that probable cause existed

to search the residence, we find that the trial court did not abuse its

discretion when it denied appellant’s suppression motion.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




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