J-S67041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RAYMOND LEON DIAZ                          :
                                               :
                       Appellant               :   No. 662 MDA 2019

        Appeal from the Judgment of Sentence Entered February 28, 2019
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                        No(s): CP-35-CR-0002329-2017


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                      FILED FEBRUARY 24, 2020

        Appellant Raymond Leon Diaz appeals from the judgment of sentence

entered in the Court of Common Pleas of Lackawanna County on February 28,

2019, following a jury trial. We affirm.

        In its Opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court

thoroughly and accurately detailed the relevant facts and procedural history

herein as follows:

           PROCEDURAL HISTORY AND FACTUAL BACKGROUND

               This case initiated with the filing of the criminal complaint
        on August 17, 2017, and, counseled by a public defender,
        Appellant waived his preliminary hearing October 12, 2017 with
        the understanding he would enter a negotiated guilty plea. (See,
        Petition for the Appointment of New Counsel filed 10/23/2017).
        Due to a perceived conflict, the Honorable Judge Michael J.
        Barrasse granted Appellant's petition for new counsel, appointing
        trial counsel to assume his representation. (Order, J. Barrasse,
____________________________________________


*   Former Justice specially assigned to the Superior Court.
J-S67041-19


     11/3/2017). Counsel filed an omnibus pretrial motion, which
     Judge Barrasse heard and thereafter denied. (See, Order, J.
     Barrasse,     3/29/2018;      Order,   J.   Barrasse,   8/20/2018;
     Memorandum of Law, J. Barrasse, 10/10/2018). Upon discovery
     of a scheduling conflict, Judge Barrasse assigned Appellant's case
     to this [c]ourt for trial. After argument, this [c]ourt denied
     Appellant's motion to dismiss pursuant to Pennsylvania Rule of
     Criminal Procedure 600 filed November 21, 2018 immediately
     before trial commenced. (N.T., 12/3/2018, p. 6).
            On December 5, 2018, following a bifurcated criminal trial
     that commenced December 3, 2018, a jury found the Appellant []
     guilty of all offenses charged in the instant case. (See, Verdict
     Slips, filed 12/5/2018). The amended criminal information filed
     against Appellant included one count of possession of a controlled
     substance with intent to deliver a quantity of cocaine, in violation
     of 35 Pa.C.S.A. §780-113(a)(30), two counts of delivery of a
     controlled substance, cocaine, in violation of 35 Pa.C.S.A. §780-
     113(a)(30), two counts of criminal use of a communication facility,
     in violation of 18 Pa.C.S.A. §7512(a), one count of possession of
     a firearm prohibited, in violation of 18 Pa.C.S.A. §6105(a)(1), one
     count of possession of marijuana, in violation of 35 Pa.C.S.A.
     §780-113(a)(31), one count of possession of a controlled
     substance, in violation of 35 Pa.C.S.A. §780-113(a)(16), and one
     count of possession of drug paraphernalia, in violation of 35
     Pa.C.S.A. §780-113(a)(32). The Commonwealth charged
     Appellant as set forth above in connection with incidents occurring
     August 15th and 16th of 2017, on which dates Lackawanna County
     narcotics investigators conducted controlled drug purchases
     through the use of a confidential informant (hereinafter “C.I.”)
     then executed a search warrant of Appellant's residence. Due to
     the Commonwealth's need to present certain evidence this [c]ourt
     deemed too prejudicial against Appellant to establish the elements
     of possession of a firearm prohibited, once the jury rendered its
     verdict regarding all above-indicated drug-related offenses, this
     [c]ourt proceeded to a second phase of trial with regard to the
     single firearm charge before the case concluded.
            At the time of trial, the Commonwealth first presented the
     testimony of the C.I., Karl Racavitch, a 30 year old male from
     West Scranton, Pennsylvania. (N.T., 12/4/2018, pp. 16-18). He
     discussed his history of drug use, explaining that he used
     marijuana and synthetic marijuana, commonly referred to as spice
     for approximately 11 years. Id. at 17-19. He also explained that
     in August 2017, he was on probation in connection with a felony
     drug conviction for selling marijuana and spice in 2014. Id. at 18.

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            At that time, his probation officer having found a small
     amount of marijuana in his possession, Racavitch reached out to
     Detective Harold Zech of the Lackawanna County District
     Attorney's Office, offering to work as a C.I. to avoid a probation
     violation. Id. at 19. He told Detective Zech that he knew his
     neighbor, “T,” identified as Appellant, to be selling cocaine out of
     his home. Id. at 19-20. He understood that if he worked as a C.I.,
     he may not incur a probation violation for the small amount of
     marijuana he possessed and Detective Zech would give him
     $200.00 to move from his current residence, as he feared
     Appellant due to having a shared history of drug-crime
     involvement. Id. In fact, he detailed that on a day during the
     summer of 2017, he returned home from work to find Appellant
     on his back porch. Id. at 21. Appellant indicated that he had been
     tied up and robbed of all of his drugs and asked Racavitch where
     he could get a gun. Id.
            Racavitch testified that he had known Appellant for six or
     seven months. Id. at 22. They met through mutual friends, and
     Appellant lived behind him, sharing a backyard area. Id. Racavitch
     indicated he had been inside Appellant's home “[a]t least 20”
     times. Id. He described that to enter, he walked up about four
     steps to “a fenced back porch” then walked “through a kitchen
     door,” through the kitchen, to find a bedroom and a room to the
     right. Id. at 23. He saw Appellant at the residence each of the
     "[a]t least 20" times that he went there.
     Id.
            Turning to August 15, 2017, Racavitch testified that he
     agreed to participate in a controlled drug purchase from Appellant.
     Id. at 23-24. At his home, in the presence of Detective Zech,
     Racavitch placed a call to Appellant seeking “to purchase a ball of
     crack cocaine,” which would weigh approximately 3.5 grams. Id.
     at 24-25. Detectives recorded the phone call, and the
     Commonwealth played if for the jury. Id. at 25. About a minute
     and a half after placing the call, Racavitch went to Appellant's
     home on North Hyde Park Avenue in Scranton. Id. at 30.
     Immediately prior, Detective Zech thoroughly searched him and
     furnished him $220.00 to purchase the crack cocaine. Id. at 31.
            Racavitch detailed that when he arrived at Appellant's back
     porch, Appellant had already been waiting for him. Id. at 33. They
     walked into the kitchen, they spoke briefly about drugs and the
     drug business, Racavitch handed Appellant the $220.00, Appellant
     left the kitchen and returned approximately one minute later with
     a quantity of crack cocaine. Id. He did not encounter or hear
     anyone else in the home while there. Id. at 35. Thereafter,

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     Racavitch returned to his home, met Detective Zech there, handed
     him the drugs and submitted to another thorough search. Id. at
     37.
            On August 16, 2017, the next day, Detective Zech again
     went to Racavitch's home. He again placed a phone call to
     Appellant, which law enforcement recorded and played at the time
     of trial. Id. at 39. He requested the same amount of crack cocaine
     purchased the day before. Id. at 41. Detective Zech again
     searched Racavitch and provided him $220.00. Id. at 41-42.
     Within approximately a minute and a half of getting off the phone
     with Appellant, Racavitch went to Appellant's back porch. Id. at
     42-43. Appellant opened “the back door fence” and “kitchen door”
     with “no shirt on.” Id. at 43. Appellant commented that Racavitch
     appeared nervous. Id. Nonetheless, they went into the kitchen, he
     gave Appellant the $220.00 Detective Zech provided, and
     Appellant handed him “[a] little twist tie baggy of crack.” Id. at
     43-44. Again, he did not encounter or hear anyone else in
     Appellant's residence. Id. at 44. Upon returning home to Detective
     Zech, Racavitch handed him the crack cocaine and submitted to a
     thorough strip search. Id. at 46.
            The Commonwealth next called Detective Harold Zech to
     testify. He detailed his law enforcement background, explained his
     involvement specifically with the narcotics unit at the Lackawanna
     County District Attorney's Office, and shared his knowledge about
     the drug trade as well as criminal investigations into the same. Id.
     at 55-68. He then corroborated that he met the C.I., Racavitch,
     through Lackawanna County Adult Probation as he hoped to avoid
     a probation violation by working with law enforcement. Id. at 68-
     69. The C.I. indicated that his neighbor, “T,” later identified as
     Appellant, sold drugs out of his residence, located at 662 North
     Hyde Park Avenue in Scranton. Id. at 69. A law enforcement
     database check of the individuals known to reside at the given
     address confirmed Appellant's association therewith. Id.
            Having verified the information provided by the C.I.,
     Detective Zech met him to conduct their first controlled purchase
     on August 15, 2017. Id. at 70. Detective Zech noted the unique
     nature of the situation in that the C.I. lived directly behind the
     target drug dealer, Appellant. Id. The C.I. placed a phone call to
     Appellant in the detective's presence, positively identifying the
     Appellant as Raymond Diaz, and they agreed to meet at
     Appellant's home. Id. at 70-71. Before sending the C.I. to the
     Appellant's residence, Detective Zech performed a strip search of
     the C.I. and provided him $220.00, having photocopied the bills
     and recorded the serial number thereon. Id. at 71-72. He then

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J-S67041-19


     surveilled and photographed the C.I.'s trip to Appellant's house
     from a second floor window in the C.I.'s home. Significantly, the
     Commonwealth admitted into evidence a photograph taken by the
     detective of the C.I. “being greeted at the doorway by Raymond
     Diaz” and one of the C.I. “being escorted out by Raymond Diaz.”
     Id. at 80. Once the C.I. returned home, Detective Zech met him
     in the kitchen, received the quantity of suspected cocaine
     obtained, and performed another strip search of the C.I. Id. at 81.
     The detective explained that he conducted a field test of the
     substance, which yielded a positive result for cocaine, and
     packaged the same for further testing by the Pennsylvania State
     Police Crime Lab. Id. at 83.
            Detective Zech continued testifying by detailing the events
     of August 16, 2017. On that date, the detective and the C.I. met
     at the C.I.'s residence and again arranged for a controlled
     purchase to take place. Id. at 85. The detective strip searched the
     C.I., provided him prerecorded cash in the amount of $220.00,
     sent him on his way to Appellant's home, and surveilled from the
     second floor vantage point. Id. at 85-86. The Commonwealth
     admitted a series of photos depicting the C.I. entering Appellant's
     home then being escorted out by Appellant, shirtless at the time,
     as described by the C.I. Id. at 89. When the C.I. returned to his
     house, Detective Zech again met him in the kitchen, received the
     suspected cocaine, performed a strip search of the C.1.,
     conducted a positive field test, and packaged the evidence for
     further testing. Id. at 91-92.
            Detective Zech explained that after completing two
     successful controlled purchases of narcotics, he applied for a
     search warrant for Appellant's residence. Id. at 94. Upon securing
     one, later in the day on August 16, 2017, he led law enforcement
     in executing the search warrant at approximately 8:00 p.m. Id. at
     95-96. Surveillance detectives watched the residence at 662 North
     Hyde Park Avenue in anticipation of the search warrant and
     observed Appellant leaving said residence. Id. at 96-97. Following
     him therefrom, detectives initiated a traffic stop of Appellant's
     vehicle. Id. at 97. Detectives detained Appellant, found to have in
     his possession $1,945.00, including some of the money used in
     each controlled purchase conducted, an Apple iPhone, and a
     Samsung flip phone, identified as the target phone bearing the
     number called by the C.I. on both occasions that he purchases
     narcotics from Appellant. Id. at 98. Appellant reportedly
     immediately denied living at the 662 North Hyde Park Avenue. Id.
     at 99.


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            Detective Zech indicated that upon executing the search
     warrant at Appellant's residence, law enforcement encountered
     Joisey Blake, who[] was Mirandized and who[] became “extremely
     irate” with the detective. Id. at 99-100. Nonetheless, the search
     continued, and after a canine indicated the presence of narcotics,
     police found a black duffel bag containing in excess of 20 grams
     of cocaine and a Taurus 38 Special Revolver in a room off of the
     bedroom. Id. at 101-103. Additional items located included
     sandwich baggies, generally used to package controlled
     substances, a safe containing sandwich baggies and other drug
     paraphernalia, men's clothing and shoes, a prescription bill bottle
     bearing Appellant's name and filled August 4, 2017, and a small
     amount of marijuana in the dresser within the same area where
     law enforcement recovered all other items. Id. at 110-115.
     Detective Zech concluded his direct testimony with some
     discussion of the relevance of the items seized from Appellant's
     residence, based on his training within the field of narcotics
     investigations, and in reference to establishing that Appellant
     indeed resided at the property searched. Id. at 115-128.
            The Commonwealth next presented the testimony of
     Jennifer Libus, forensic scientist for the Pennsylvania State Police
     at their Wyoming Regional Laboratory in Pittston, Pennsylvania.
     Id. at 130. She confirmed that the evidence submitted for testing,
     obtained from Appellant by the C.I. on August 15 and 16, 2017,
     contained approximately three and 3.13 grams of cocaine,
     respectively. Id. at 136-138. She further indicated that evidence
     seized from the black gym bag located in Appellant's residence
     and submitted for testing contained various quantities of cocaine.
     Id. at 138-141. Finally, she testified that the vegetable matter
     found in Appellant's dresser drawer and submitted for testing
     constituted approximately 1.24 grams of marijuana. Id. at 142.
            The Commonwealth next called Detective Vincent
     Butkiewicz of the Lackawanna County District Attorney's Office.
     Id. at 172. He testified as to his role as a canine handler in the
     narcotics unit. Id. at 173. Appellant stipulated that Detective
     Butkiewicz's canine alerted him to the presence of narcotics in the
     residence searched. Id. at 174-175. The detective further
     confirmed that he did not encounter any other male or items
     belonging to any other male within the residence. Id. at 177.
            Finally, prosecutors presented the testimony of Detective
     Tom Davis, another member of the Lackawanna County District
     Attorney's Office narcotic unit. Id. at 180-181. He indicated that
     he participated in the investigation regarding Appellant's drug
     activity by assisting with surveillance and in executing the search

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     warrant on August 16, 2017. Id. at 182-183. When Appellant left
     his residence prior to law enforcement's execution of the search
     warrant, Detective Davis followed him in his vehicle and initiated
     a traffic stop. Id. at 183-184. Detective Davis explained that at
     the time of the traffic stop, he and assisting detectives took
     Appellant into custody without incident, read him his Miranda
     Rights, and informed him of the search warrant being executed at
     662 North Hyde Park Avenue. Id. at 184. Appellant indicated that
     he did not live on the first floor but lived on the second floor at
     said address. Id. A search of his person yielded a total of
     $1,945.00 and a smart phone, and a search of his vehicle resulted
     in recovering a Samsung flip phone. Id. at 185. Detective Davis
     transported Appellant back to 662 North Hyde Park Avenue and
     learned that following the search performed, investigators found
     over 20 grams of cocaine, a silver Taurus 38 caliber handgun, drug
     packaging materials, and a pill bottle bearing Appellant's name.
     Id. at 186-187.
             Thereafter, the Commonwealth rested with respect to the
     drug related charges, and Appellant commenced his case-in-chief
     calling witness Joisey Blake, his mother. Id. at 190. She indicated
     that her daughter lived in the second floor apartment at 662 North
     Hyde Park Avenue and her sister lived in the first floor apartment
     at the same address. Id. at 191. She testified that her sister's
     friend Josh and his two-year-old child lived at the apartment with
     her. Id. at 192. On the day of the search warrant, she went to the
     first floor apartment to retrieve her phone charger. Id. at 191-
     192. Her sister was not home as she had been visiting their
     mother in Philadelphia at the time. Id. at 192-193. Josh had
     apparently stopped living in the first floor apartment as her sister
     no longer wanted him there. Id. at 193. Blake indicated she saw
     him collecting his belongings approximately two weeks after the
     execution of the search warrant in this case. Id. at 193.
             Appellant next testified on his own behalf. He stated that on
     August 15 and 16, 2017, he and his aunt's boyfriend Josh had
     been playing a video game when Josh asked him to let the C.I. in
     and out of the apartment. Id. at 202-203. Appellant explained that
     the C.I. would occasionally come over to buy things from Josh. Id.
     He claimed to live at 3027 North Taney Street in North
     Philadelphia, not at 662 North Hyde Park Avenue. Id. at 203. He
     maintained that Josh lived at the apartment. Id. He denied ever
     having a phone call with the C.I.; he denied any knowledge
     regarding the Samsung flip phone located in his vehicle when
     stopped by law enforcement; and he denied having any “buy
     money” comingled with the $1,945.00 recovered from his person.

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      Id. at 205-207. Appellant did, however, ultimately acknowledge
      ties to the residence located at 662 North Hyde Park Avenue
      through family members. Id. at 210.
             Once Appellant rested his case, the Commonwealth re-
      called Detective Zech in rebuttal. He indicated that no evidence
      suggested that a minor child resided in the apartment at issue. Id.
      at 215. Detectives did not find any baby clothes or toys, and they
      did not find any mailings to a Josh or other evidence of another
      male living in the home. Id. at 215-216.
             After closing arguments relative to the first phase of trial,
      the jury returned a verdict of guilty as to all crimes charged:
      possession with intent to deliver cocaine, two counts of delivery
      of cocaine, two counts of criminal use of a communication facility,
      possession of marijuana, possession of cocaine, and possession of
      drug paraphernalia. The Court proceeded to the second phase of
      trial, specifically regarding the charge of possession of a firearm
      prohibited.
             The Commonwealth called Lackawanna County Clerk of
      Judicial Records Mauri Kelly to testify. (N.T., 12/5/2018, p. 63).
      She detailed that in a Lackawanna County criminal case docketed
      at 2012 CR 756, Appellant [ ] entered a guilty plea July 2, 2013
      to felony charges of delivery of a controlled substance and
      possession with intent to deliver a controlled substance. Id. at 65-
      66. She further indicated that Appellant received a sentence of
      incarceration of 27 to 60 months with a period of probation to
      follow. Id. at 66.
             Finally, the Commonwealth called Lackawanna County
      Detective Chris Kolcharno to testify as to his limited involvement
      in Appellant's case. Id. at 67-68. Specifically, on September 7,
      2018, Detective Zech requested that Detective Kolcharno test fire
      the weapon seized at the time of the search warrant executed at
      662 North Hyde Park Avenue. Id. at 68-69. He indicated that the
      Taurus 38 caliber revolver recovered from Appellant fired as
      expected and was indeed operational. Id. at 69-71.
             After the close of evidence and following this [c]ourt's
      instruction, the jury returned a guilty verdict as to the possession
      of a firearm prohibited charge. On February 28, 2019, this [c]ourt
      sentenced Appellant with respect to all charges to an aggregate
      term of incarceration of 138 months to 280 months in a state
      correctional institution. (N.T., 2/28/2019, p. 11).

Trial Court Opinion, filed 8/22/19, at 3-12.




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J-S67041-19


       On March 8, 2019, Appellant filed his Motion for Reconsideration of

Sentence, and the trial court denied the same on April 16, 2019.          On April

24, 2019, Appellant filed a timely notice of appeal with this Court, and both

the trial court and Appellant have complied with Pennsylvania Rule of

Appellate Procedure 1925.

       In his Concise Statement of Errors Complained of on Appeal pursuant to

Pa.R.A.P. 1925(b) Appellant raises nine claims for relief. In his appellate brief,

Appellant presents two issues for our review:1

       1. Did the trial court err in failing to grant Appellant’s motion for
          suppression of evidence based upon deficiencies in the affidavit
          of probable cause supporting the issuance of a search warrant
          for the premises located at 622 North Hyde Park Avenue,
          Scranton, Pennsylvania where said affidavit relies almost
          exclusively upon statements made by a confidential informant
          whose veracity was not established?

       2. Was the evidence presented at the time of trial sufficient to
          establish constructive possession of the contraband identified
          in Counts 1 (possession of a controlled substance with the
          intent to deliver), Count 6 (possession of a firearm prohibited);
          Count 7 (possession of marijuana) and Count 8 (possession of
          a controlled substance [cocaine]) in the amended criminal
          information where the uncontroverted evidence established


____________________________________________


1 In his concise statement, Appellant presented the trial court with additional
challenges to the sufficiency of the evidence and to the weight of the evidence.
Appellant also argued the trial court had erred in failing to strike certain jurors
for cause. He has abandoned these claims on appeal; therefore, we find them
waived. Commonwealth v. Dunphy, 20 A.3d 1215, 1218 (Pa.Super. 2011)
(issues raised in Pa.R.A.P. 1925 concise statement that are not developed in
appellate brief are abandoned); see also Commonwealth v. Woodward,
129 A.3d 480, 509 (Pa. 2015) (holding that “where an appellate brief fails to
. . . develop an issue in any [] meaningful fashion capable of review, that claim
is waived[]”).

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         that multiple individuals had access to the area where said
         contraband was located?

Brief for Appellant at 5 (unnecessary capitalization omitted).

      When considering the suppression court’s denial of Appellant’s motion

to suppress evidence, we employ a well-settled standard of review:

            An appellate court's 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, the appellate court is bound
      by those findings and may reverse only if the court's legal
      conclusions are erroneous. Where ... 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 plenary
      review.

Commonwealth v. Bernard, 2019 WL 4180655, at * 3 (Pa.Super. Sept. 4,

2019) (citation omitted).

      Appellant posits “the failure of law enforcement to corroborate the

information provided by the Confidential Informant renders the Affidavit of

Probable Cause defective.” Brief of Appellant at 23. Appellant submits the

Affidavit of Probable Cause does not contain facts bolstering the then

confidential informant’s veracity.   Id.   Appellant contends officers did not

attempt to verify the phone number the confidential informant had provided



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to them belonged to Appellant, and he further avers that police did not witness

the drug transaction.    Appellant also stresses officers admitted that other

individuals lived at that location. Id.

      With regard to law enforcement’s reliance upon a confidential informant,

the Bernard Court has stated:

      An arrest or ‘custodial detention’ must be supported by probable
      cause:

           Probable cause is made out when the facts and
           circumstances which are within the knowledge of the
           officer at the time of the arrest, and of which he has
           reasonably trustworthy information, are sufficient to
           warrant a [person] of reasonable caution in the belief
           that the suspect has committed or is committing a crime.
               The question we ask is not whether the officer's belief
           was correct or more likely true than false. Rather, we
           require only a probability, and not a prima facie showing,
           of criminal activity. In determining whether probable
           cause exists, we apply a totality of the circumstances
           test.
               Information received from confidential informants
           may properly form the basis of a probable cause
           determination. Where the officers' actions resulted from
           information gleaned from an informant, in determining
           whether there was probable cause, the informant's
           veracity, reliability and basis of knowledge must be
           assessed.
               An informant's tip may constitute probable cause
           where police independently corroborate the tip, or where
           the informant has provided accurate information of
           criminal activity in the past, or where the informant
           himself participated in the criminal activity.

      Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa.
      Super. 2011) (cleaned up). Our Supreme Court “held that a
      determination of probable cause based upon information received
      from a confidential informant depends upon the informant's
      reliability and basis of knowledge viewed in a common sense, non-
      technical manner.” Commonwealth v. Clark, 611 Pa. 601, 28

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      A.3d 1284, 1288 (2011) (citation omitted); see also
      Commonwealth v. Sanchez, 589 Pa. 43, 907 A.2d 477, 488
      (2006), quoting United States v. Tuttle, 200 F.3d 892, 894 (6th
      Cir. 2000) (“[I]nformation received from an informant whose
      reliability is not established may be sufficient to create probable
      cause where there is some independent corroboration by police of
      the informant's information.”); see also Commonwealth v.
      Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (citation omitted)
      (same).
Id.

      Herein,   the   suppression   court     discussed   relevant   caselaw   and

concluded, inter alia, that law enforcement independently had corroborated

the confidential informant’s tip based upon the following evidence:

             Furthermore, an informant's tip may constitute probable
      cause to arrest or search where police independently corroborate
      tip, or where the informant has provided accurate information of
      criminal activity in past, or where the informant participated in
      criminal activity. Commonwealth v. Luv, 735 A,2d 87 (Pa.
      Super. 1999); See also, Commonwealth v. Gray, 503 A.2d
      921, 926 (Pa. 1985) (the court can take into consideration the
      reliability of the tip along with the corroborative efforts of the
      officers when determining if probable cause has been
      established).
             The United States Supreme Court in [Illinois v.]Gates [462
      U.S. 213 (1983)] recognized that, in instances where the affidavit
      is deficient in establishing the informant's veracity, reliability, or
      basis of knowledge, a strong showing with respect to the other
      elements-or the existence of some other indicia of reliability may
      compensate. Illinois v. Gates, 462 U.S. 213 (1983). "A
      determination of probable cause based upon information received
      from a confidential informant depends upon the informant's
      reliability and basis of knowledge viewed in a common sense, non
      -technical manner." Commonwealth v. Luv, 735 A.2d 87, 90
      (Pa. 1999)
             In Commonwealth v. Luton, the Pennsylvania Superior
      Court found a police-conducted “controlled buy” sufficiently
      corroborated neighbors’ complaints about illegal sales of narcotics
      at defendant's home and provided probable cause for issuance of
      warrant to search defendant's home. Commonwealth v. Luton,
      672 A.2d 819 (Pa. Super, 1996),

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           Finally, in Commonwealth v. Baker, the Pennsylvania
     Superior Court found the informant's allegations that the
     defendant was selling drugs, corroborated by police officer’s first
     hand observations, where the informant entered the residence,
     and returned with cocaine, were sufficient factors to establish
     probable cause to sustain a search warrant. Commonwealth v.
     Baker, 615 A.2d 23 (Pa.Super. 1992).
           In the present case, this [c]ourt finds sufficient probable
     cause to support the issuance of a search warrant. The CI provided
     Det. Zech with a physical description of [Appellant], the
     [Appellant’s] cell phone number, as well as [Appellant’s] home
     address, (N.T., p. 5). The CI identified [Appellant] via photograph.
     (N.T., p. 6). The CI then provided consent to have his or her
     communications with [Appellant] intercepted and recorded. (N.T.,
     p. 7). As such, Det. Zech listened to the CI call [Appellant] and
     arrange a purchase of cocaine at [Appellant’s] residence. (N.T., p.
     7). While additional officers established surveillance around the
     [Appellant’s] residence, Det. Zech searched the CI and provided
     a sum of prerecorded serialized money to use in the drug
     transaction. (N.T., p. 7). Meanwhile, Det. Condrad observed
     [Appellant] enter his residence at 662 North Hyde Park Avenue.
     (N.T., p. 7-8). Simultaneously, [Appellant] called the CI and
     directed the CI to his residence. (N.T., 7-8). Det. Zech through
     surveillance, he observed the CI walk to the rear north end of 662
     North Hyde Park Avenue. (N.T., p. 8). Thereafter, he viewed the
     CI exit the residence, and surrender a quantity of cocaine. (N.T.,
     p. 10).
           The next day, following the same protocol with Det. Zech,
     the CI conducted another controlled buy at [Appellant’s] residence
     and surrendered a quantity of cocaine. After completing two
     controlled buys, as well as the CI's identification of [Appellant],
     Det Zech applied for and obtained a search warrant of 662 North
     Hyde Park Avenue. (N.T., p. 9, 10-11, 12-13). Officers entered
     the residence, they located a pill bottle bearing [Appellant’s] name
     on a bedroom dresser, a small amount of marijuana, as well as
     men's clothing and sneakers throughout in the apartment. (N.T.,
     p. 15). A K-9 search resulted in a positive identification for
     narcotics in a black gym bag. (Affidavit of Probable Cause, p, 1).
     Inside the gym bag, officers located a large twist bag containing
     twenty-three (23) grams of powder cocaine, one twist bag
     containing two (2) grams of powder cocaine, two twist bags
     containing two (2) grams of crack cocaine, and men's apparel.
     (Affidavit of Probable Cause, p. 1). Near the gym bag, officers
     discovered an unloaded Taurus .38 revolver. (Affidavit of Probable

                                    - 13 -
J-S67041-19


     Cause, p. 1). Subsequently, officers checked [Appellant’s] criminal
     record and learned of his status as a convicted felon prohibited
     from owning a firearm. (Affidavit of Probable Cause, p. 1-2). In
     addition, officers located a safe in the living room, which contained
     small plastic zip lock bags and plastic sandwich bags. (Affidavit of
     Probable Cause, p. 2).
           Therefore, this [c]ourt finds sufficient probable cause to
     support the issuance of a search warrant regarding [Appellant’s]
     residence.

Suppression Court Opinion, filed 10/10/18, at 7-8.

     Based upon our standard of review and the evidence presented at the

suppression hearing, we find no abuse of discretion or error of law in the

suppression court’s denial of Appellant’s suppression motion. The confidential

informant provided Detective Zech with a detailed physical description of

Appellant and an address at which he was residing and from which he was

selling cocaine. N.T. 8/8/18, at 6. Detective Zech also obtained a cellular

phone number for Appellant and learned a controlled purchase could be made

by contacting Appellant at that number.        Id. at 6-7.    The confidential

informant contacted Appellant and arranged to purchase cocaine from him in

Detective Zech’s presence. Id. at 7.

     Surveillance was established, and Detective Zech accompanied the

confidential informant to an area near the residence.         The confidential

informant was subjected to a strip search and provided with a quantity of

marked currency to make the purchase. Detective Zech intercepted a second

phone call directing the confidential informant to come to the residence, and

Detective Condrad witnessed Appellant enter the same. Id. at 7-8.        Within




                                    - 14 -
J-S67041-19



minutes, Detective Zech confirmed a narcotic transaction had occurred. Id.

at 8.   This routine was repeated for a second purchase. Id. at 9-10.

        Viewing the totality of the evidence in a common sense, non-technical

manner, we conclude that law enforcement had probable cause to believe that

criminal activity likely was afoot. Police were able to corroborate twice that

Appellant acted in conformity with communications in which he and the

confidential informant had engaged.        Moreover, the confidential informant

confirmed     that   he   had   prior   drug     dealings   with   Appellant.   See

Commonwealth v. Clark, 611 Pa. 601, 28 A.3d 1284, 1288 (2011)

(informant's tip may constitute probable cause where the informant himself

participated in the criminal activity).          Therefore, suppression was not

warranted, and Appellant's first issue lacks merit. See Bernard, supra.

        Appellant next challenges the sufficiency of the evidence to support the

guilty verdicts on Count 1 (PWID); Count 6 (Possession of a Firearm

Prohibited); Count 7 (Possession of Marijuana); and Count 8 (Possession of a

Controlled Substance) of the Amended Information.            Specifically, Appellant

maintains that Appellant had neither actual nor constructive possession of the

contraband, a necessary element of each crime, because it was not found on

his person. Brief of Appellant at 25. Appellant maintains that the record is

“totally devoid” of any evidence suggesting he had dominion and control over

the gun and drugs inside the duffel bag and that it contains nothing even to

suggest that Appellant knew illegal narcotics and a firearm were located in an

adjacent room. Id. at 26-27.

                                        - 15 -
J-S67041-19


      This Court’s standard of review of a challenge to the sufficiency of the

evidence is as follows:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying [the above] test, we may not
      weigh the evidence and substitute our judgment for the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant's guilt
      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the [trier] of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011) (citation

omitted), appeal denied, 613 Pa. 642, 32 A.3d 1275 (2011).

      When reviewing Appellant’s challenge to the sufficiency of the evidence

with regard to a PWID conviction, we are mindful that

            [t]he Commonwealth must prove both the possession of
      the controlled substance and the intent to deliver the controlled
      substance. It is well settled that all the facts and circumstances
      surrounding possession are relevant in making a determination
      of whether contraband was possessed with intent to deliver.
            In Pennsylvania, the intent to deliver may be inferred from
      possession of a large quantity of controlled substance. It follows
      that possession of a small amount of a controlled substance
      supports the conclusion that there is an absence of intent to
      deliver.




                                    - 16 -
J-S67041-19


Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008), appeal

denied, 600 Pa. 744, 964 A.2d 894 (2009).

      Counts 7 and 8, concern Section 780–113 of The Controlled Substance,

Drug, Device and Cosmetic Act, which states in relevant part:

      (a) The following acts and the causing thereof within the
      Commonwealth are hereby prohibited:

      (16) Knowingly or intentionally possessing a controlled or
      counterfeit substance by a person not registered under this act,
      or a practitioner not registered or licensed by the appropriate
      State board, unless the substance was obtained directly from, or
      pursuant to, a valid prescription order or order of a practitioner,
      or except as otherwise authorized by this act.

                               ***

      (30) Except as authorized by this act, the manufacture, delivery,
      or possession with intent to manufacture or deliver, a controlled
      substance by a person not registered under this act, or a
      practitioner not registered or licensed by the appropriate State
      board, or knowingly creating, delivering or possessing with intent
      to deliver, a counterfeit controlled substance.

35 P.S. §§ 780–113(a)(16), (30).

      Finally, Appellant challenges his convictions of persons not to possess a

firearm under 18 Pa.C.S.A. § 6105, which, in relevant part, provides the

following:

      § 6105. Persons not to possess, use, manufacture,
      control, sell or transfer firearms

             (a)   Offense defined.—

                  (1) A person who has been convicted of an offense
             enumerated in subsection (b), within or without this
             Commonwealth, regardless of the length of sentence or
             whose conduct meets the criteria in subsection (c) shall not


                                     - 17 -
J-S67041-19


            possess, use, control, sell, transfer or manufacture or obtain
            a license to possess, use, control, sell, transfer or
            manufacture a firearm in this Commonwealth.

                                     ***
            (c) Other persons.--In addition to any person who has
            been convicted of any offense listed under subsection (b),
            the following persons shall be subject to the prohibition of
            subsection (a):
                                     ***
                  (2) A person who has been convicted of an offense
            under the act of April 14, 1972 (P.L. 233, No. 64), known as
            The Controlled Substance, Drug, Device and Cosmetic Act,
            or any equivalent Federal statute or equivalent statute of
            any other state, that may be punishable by a term of
            imprisonment exceeding two years.

18 Pa.C.S.A. § 6105(a), (c).

      Appellant does not dispute that he is prohibited from possessing a

firearm; however, he contends the Commonwealth failed to prove that he

actually possessed the firearm. We agree with Appellant that possession is

an element of the firearms offense and that the firearm was not discovered

on   Appellant’s   person   so   as   to   establish   actual   possession.   See

Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132, 134 (1983)

(holding that actual possession is shown by proving the contraband was found

on the defendant’s person). However, we disagree with Appellant’s claim that

there is “no evidence to even suggest that [ ] Appellant knew the gun and

duffle bag were present in the adjacent room.” Brief for Appellant at 27.

      Rather, to establish the element of possession, this Court has held that

“[p]ossession can be found by proving actual possession, constructive

possession, or joint constructive possession.” Commonwealth v. Parrish,

                                      - 18 -
J-S67041-19


191 A.3d 31, 36 (Pa.Super. 2018) (citation omitted), appeal denied, 202 A.3d

42 (2019). We previously have determined:

      Where a defendant is not in actual possession of the prohibited
      items, the Commonwealth must establish that the defendant had
      constructive possession to support the conviction. Constructive
      possession is a legal fiction, a pragmatic construct to deal with the
      realities of criminal law enforcement. We have defined
      constructive possession as conscious dominion, meaning that the
      defendant has the power to control the contraband and the intent
      to exercise that control. To aid application, we have held that
      constructive possession may be established by the totality of the
      circumstances.
             It is well established that, as with any other element of a
      crime, constructive possession may be proven by circumstantial
      evidence. In other words, the Commonwealth must establish facts
      from which the trier of fact can reasonably infer that the defendant
      exercised dominion and control over the contraband at issue.

Parrish, 191 A.3d at 36–37 (internal citations and quotations omitted).

      Illegal possession of a firearm may be established by one’s constructive

possession thereof.    Commonwealth v. McClellan, 178 A.3d 874, 879

(Pa.Super. 2018). In addition, the power and intent to control contraband

does not need to be exclusive to an appellant in order to find constructive

possession. Our Supreme Court has recognized that “constructive possession

may be found in one or more actors where the item in issue is in an area of

joint control and equal access.” Commonwealth v. Johnson, 611 Pa. 381,

26 A.3d 1078, 1094 (2011) (citation omitted). Further, contrary to Appellant’s

suggestion, the Commonwealth was permitted to establish Appellant’s

constructive possession via circumstantial evidence and the reasonable

inferences that arise therefrom. Parrish, supra.


                                     - 19 -
J-S67041-19


      Herein, Appellant’s argument with respect to the possession element of

the charged crimes suffers from a fatal flaw- he views the evidence presented

at trial in the light most favorable to him. For example, he stresses that others

had access to the apartment.       Brief of Appellant at 25-27.      This position

ignores the fact that constructive possession is not necessarily exclusive.

Johnson, supra.         Moreover, to the extent Appellant suggests the

Commonwealth was required to prove Appellant actually possessed the

contraband, he is in error. Parrish, supra.

      Viewing the evidence in the light most favorable to the Commonwealth

as the verdict winner, we agree with the trial court that the evidence

sufficiently establishes his constructive possession of the firearm and drugs

the detectives seized as Appellant had the ability and intent to exercise control

over the contraband. As the trial court relevantly indicated:

            At the time of trial in Appellant's case, the C.I. testified that
      he informed Detective Zech that his neighbor, "T," identified as
      Raymond Diaz, Appellant, sold cocaine. out of his home. (N.T.,
      12/4/2018, pp. 19-20). The C.I. testified that he had known
      Appellant for six or seven months. Id. at 22. They met through
      mutual friends, had a history of being involved in drug related
      crime together, and Appellant lived behind him, sharing a
      backyard area. Id. In fact, he detailed that on a day during the
      summer of 2017; he returned home from work to find Appellant
      on his back porch to ask C.I. where he could get a gun, explaining
      that he had recently been tied up and robbed of his drugs. Id. at
      21.
            C.I. indicated he had been inside Appellant's home "[a]t
      least 20" times, and he saw Appellant at the residence each time
      he went there. Id. at 22-23. He described that entering from the
      back, he would walk up approximately four steps to a “fenced back
      porch,” walk through the kitchen to a bedroom with a room “like
      a closet” to the right. Id. at 23. He explained that on both August

                                      - 20 -
J-S67041-19


     15 and August 16, 2017, having spoken to him on the phone, C.I.
     went to Appellant's apartment to complete the two controlled
     purchases in this case. Id. at 32-34, 42-44. With respect to the
     purchase on August 15th, C.I. waited in the kitchen while Appellant
     went into another room, reappearing “not even a minute later”
     with a quantity of crack cocaine. Id. at 33-34. He further indicated
     that Appellant went into the room to the right to retrieve the
     cocaine on that occasion. Id. He did not encounter or hear anyone
     else in the home while there. Id. at 35, 44.
            Detective Zech testified that a law enforcement database
     check of the individuals known to reside at 662 North Hyde Park
     Avenue confirmed Appellant's association with the address. Id. at
     69. In fact, photographs of Appellant meeting C.I. at the back door
     on the dates of the controlled purchases were admitted into
     evidence. Detective Zech also explained that prior to executing
     the search warrant in this case, surveillance detectives watched
     the residence at 662 North Hyde Park Avenue and observed
     Appellant leaving said residence. Id. at 96-97. Following him
     therefrom, detectives initiated a traffic stop of Appellant's vehicle,
     detained him, and seized from him $1,945.00, including some of
     the money used in each controlled purchase conducted, an Apple
     iPhone, and a Samsung flip phone, identified as the target phone
     bearing the number called by the C.I. on both occasions that he
     purchases narcotics from Appellant. Id. at 97-98; see also, 182-
     187. Finally, Detective Zech indicated that the search of the
     residence yielded a black duffel bag containing in excess of 20
     grams of cocaine and a Taurus 38 Special Revolver in the room
     off of the bedroom, “the makeshift walk-in closet.” Id. at 101-103,
     117. Additional items located included sandwich baggies,
     generally used to package controlled substances, a safe containing
     sandwich baggies and other drug paraphernalia, men's clothing
     and shoes, a prescription bill bottle bearing Appellant's name and
     filled August 4, 2017, and a small amount of marijuana in the
     dresser within the same area where law enforcement recovered
     all other items. Id at 110-115. Detectives did not find evidence of
     any other male residing within the premises searched. Id. at 177;
     215-216. No evidence suggested any other alleged or verified
     member of the household sold or possessed any of the contraband
     recovered.
            Viewing it in the light most favorable to the Commonwealth,
     this [c]ourt finds that the Commonwealth presented more than
     sufficient evidence to establish that Appellant possessed a
     quantity of cocaine, possessed a quantity of cocaine with intent to
     deliver, possessed a quantity of marijuana, and possessed a

                                    - 21 -
J-S67041-19


      firearm. The C.I. testified that Appellant resided in the 662 North
      Hyde Park apartment, having been there for the purpose of
      conducting drug transactions on numerous occasions. Detectives
      verified Appellant’s connection to the address and corroborated
      his drug trafficking activity with photographic evidence and having
      seized a sum of cash which included some of the buy money used
      in the controlled purchases conducted in this case as well as the
      cell phone bearing the number the C.I. used to contact Appellant
      to establish the drug transactions. Detectives found no evidence
      of any other individual's involvement in the sale of illegal drugs
      from the residence and recovered a substantial amount of cocaine,
      the marijuana and the gun from a room that appeared to be
      inhabited by Appellant, there being men's clothing and a
      prescription bill bottle of his therein. Though the evidence did not
      suggest anyone else had access to the drugs or the gun at the
      relevant time, pursuant to the doctrine of constructive possession,
      accessibility of others does not preclude possession by one. This
      [c]ourt, therefore, submits that Appellant's convictions on the
      instantly challenged offenses should be affirmed.

Trial Court Opinion, filed 8/22/19, at 19-22.

      We agree with the trial court that when viewed in its totality, the

aforesaid direct and circumstantial evidence presented at trial along, with the

reasonable inferences that arise therefrom, reveals that Appellant had the

power and intent to control the cocaine, marijuana and revolver. The

confidential informant testified he watched Appellant enter a room and emerge

therefrom with a quantity of crack cocaine which he then sold to Appellant.

Detective Zech’s strip search of the confidential informant within minutes

thereafter revealed the cocaine.    Clearly, this evidence demonstrated that

Appellant participated in drug-related criminal activity, the sale of cocaine to

the confidential informant, and established Appellant possessed the cocaine

with the intent to deliver the same to the confidential informant.


                                     - 22 -
J-S67041-19


      In addition, Detective Zech testified he discovered a prescription bottle

bearing Appellant’s name along with men’s clothing and shoes in the same

area where the marijuana, revolver, and other drug paraphernalia were found.

Officers found no evidence that may have linked another male residence to

that room.    It was reasonable for a jury to infer from this evidence that

Appellant was connected to, and therefore had constructive possession of, the

area of the home wherein marijuana and a firearm was kept. Thus, we

conclude the court provided a well-reasoned basis for its determination that

the Commonwealth presented sufficient evidence to support the possession

element and convictions of counts one, six, seven and eight. Accordingly, we

conclude Appellant is not entitled to relief on any of his challenges to the

sufficiency of the evidence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/24/2020




                                    - 23 -
