J-A13010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRYAN BURNETTE-MCCULLOUGH                  :
                                               :
                       Appellant               :    No. 2064 EDA 2018

         Appeal from the Judgment of Sentence Entered June 26, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0004701-2016


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED AUGUST 14, 2019

       Bryan Burnette-McCullough (“Appellant”) appeals the June 26, 2018

judgment of sentence entered following his convictions at a bench trial of

firearm and drug violations and conspiracy. We affirm.

       Prior to trial, Appellant filed a counseled motion to suppress evidence.

Motion to Suppress, 11/21/16. Following a hearing, the suppression court1

denied Appellant’s motion.           Order, 8/28/17.   Appellant filed a motion for

reconsideration,     which     the    suppression   court   granted.    Motion   for

Reconsideration, 4/27/17; Order, 8/28/17. The suppression court had initially

held that the traffic stop, which led to Appellant’s arrest, was an investigatory


____________________________________________


1 The Honorable Mary Alice Brennan served as judge for the suppression
hearing and the trial. We refer to the suppression court or trial court
depending on the procedural posture of the case.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A13010-19


detention and that the police had reasonable suspicion to stop Appellant’s

vehicle.   Order and Opinion, 8/28/17, at 3.          The suppression court

subsequently determined that the stop was a custodial detention and that the

police had probable cause to stop Appellant’s vehicle based on the following

findings of fact:

             1.     Lieutenant Richard Gibney is employed by the Darby
      Borough Police as a Lieutenant in the anti-crime unit. He has been
      a police officer with Darby Borough since 1987. N.T. Suppression,
      02/24/2017 p. 7.

            2.    The Anti-Crime Unit investigates major crimes in the
      Borough including homicide, robbery, rape, firearms and narcotics
      cases. When investigating narcotics cases Lieutenant Gibney has
      used [a] confidential informant[] (“CI”) more than a hundred
      times. He has also on numerous occasions cooperated with the
      State Police and the DEA [Drug Enforcement Agency] in narcotics
      cases. N.T. Suppression 02/24/2017 p. 8.

            3.    In December of 2015, Lieutenant Gibney interviewed
      a CI who gave him “a ton” of detailed information about a group
      that was selling narcotics out of Southwest Philadelphia, Delaware
      County and Darby, in particular. The detailed information included
      what narcotics they were selling, general areas they were selling,
      their nicknames, their vehicles, and the block address of a house
      in Darby that [Appellant] was using as a stash house. N.T.
      Suppression 02/24/2017 p. 8, 9.

             4.    Based on this information, Lieutenant Gibney
      contacted the Philadelphia Police and spoke with Sergeant Mike
      Davis from the 12th District. Sergeant Davis investigates a lot of
      the narcotics cases in Southwest Philadelphia. He knew of the
      individuals identified by the CI. Sergeant Davis confirmed the
      information the CI gave to Lieutenant Gibney; “he confirmed it
      all”. Lieutenant Gibney also contacted the DEA who had an
      ongoing investigation on some of the identified individuals. The
      DEA also confirmed the information given by the CI. At this point,
      the CI’s information was confirmed and corroborated by two
      independent law enforcement agencies, both with ongoing
      investigations into this drug “organization” and active interest in

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     the information provided. In addition, the CI’s reliable information
     resulted in at least two arrests for the Darby Police. [Lieutenant]
     Gibney also learned about additional drug locations in Darby that
     he did not know about previously. N.T. Suppression 02/24/2017
     p. 9, 13, 19.

            5.     One of the individuals the CI gave detailed information
     about is [Appellant], Bryan Burnett-McCullough. The CI told
     Lieutenant Gibney that [Appellant’s] nickname on the street is
     “Beezy” and that he is selling heroin. The CI said that [Appellant]
     uses a house in Darby on the 1100 block of Chestnut Street as a
     stash house to keep his drugs. The [c]ourt takes judicial notice
     that stash houses are locations that drug sellers secure to store
     their illegal narcotics safely away from where they live and away
     from where they sell the drugs. This also helps the drug dealer
     from carrying larger quantities of drugs on him at any given time,
     so that if arrested, the amount will not trigger sentencing
     enhancements. N.T. Suppression 02/24/2017 p. 10.

           6.    The CI told Lieutenant Gibney of [Appellant’s]
     predictive behavior: that [Appellant] would arrive (at his stash
     house in Darby) in a white tinted out Maxima, run into the house
     to re-supply his drugs. The CI explained: “if we catch him running
     in and out of the house that’s the time he would be going to re-
     up his drugs and he would be leaving with them.” In addition,
     that [Appellant] “stays 1 to 5 minutes if he runs in and out that’s
     when he is getting it.” Also, that there is no set time, any time of
     the day or night, in and out to re-up his supply. N.T. Suppression
     02/24/2017 p. 11, 56.

            7.    Lieutenant Gibney confirmed the CI’s knowledge of
     the drug world, including his knowledge of people involved in drug
     trafficking, and how drugs were used, packaged, and sold.
     Lieutenant Gibney found the CI’s information to be reliable and
     made arrests with the help of the CI’s information.           N.T.
     Suppression 02/24/2017 p. 12, 13.

           8.    The CI provided detailed information to Lieutenant
     Gibney pertaining to [Appellant’s] car, a white tinted out Maxima.
     [Lieutenant] Gibney gave the information on [Appellant’s] car to
     the night supervisor who found the vehicle and was able to obtain
     the registration. Lieutenant Gibney ran the tag and the vehicle
     came back as being registered to [Appellant] at a Philadelphia
     address (7328 Garman Street), which coincides with the

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     information from the CI that this is a stash house location.
     Lieutenant Gibney then obtained a picture of [Appellant].
     Lieutenant Gibney showed the picture to the CI who confirmed
     [Appellant] as being the individual he knows as Beezy. N.T.
     Suppression 02/24/2017 p. 13, 14.

           9.     The Darby police, along with the DEA set up
     surveillance on the 1100 block of Chestnut Street as other
     investigations and resources allowed. Although [Appellant’s] car
     was spotted on a number of occasions, in and out different times
     of the day and night, the officers were not there at the right time,
     right place until March 2. [N.T. Suppression 02/24/2017] p. 44.

           10. On March 2, 2016[, Appellant] was observed parking
     his car on the 1100 block of Chestnut Street, got out of the car
     but left it running, looked around, and entered 1106 Chestnut
     Street. A few minutes later, [Appellant] exited the house, looked
     around, got back in his running car and quickly drove away. N.T.
     Suppression 02/24/2017 p. 17, 18.

           11. [Appellant’s] activity at the stash house was
     consistent with the predictive information Lieutenant Gibney
     received from the CI. [N.T. Suppression 02/24/2017 p. 17, 18].

            12. In addition to providing information about [Appellant],
     the CI also provided Lieutenant Gibney information about other
     members of [Appellant’s] criminal organization of drug dealers
     who combined money and resources to sell narcotics. The CI
     provided information on the group and an individual known as
     “Titty” whose real name is Rasheed Wood. Lieutenant Gibney was
     familiar with Wood from a prior drug arrest. The CI also identified
     individuals known as Cash and Cowboy. The CI also provided
     information about other locations the group operated from.
     Lieutenant Gibney confirmed all of the CI’s information with the
     Philadelphia Police and the DEA.        The DEA assisted in the
     investigation because they were aware of [Appellant’s] activities
     and were independently investigating him. N.T. Suppression
     02/24/2017 p. 19, 20, 26.

            13. The CI was intimately familiar with [Appellant’s]
     activities and routines because he had bought, sold and used
     drugs with [Appellant]. The CI had interactions with [Appellant]
     the week before his meeting with the Darby Police. Lieutenant
     Gibney found all of the CI’s information to be accurate and

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     reliable; “right on the money”. N.T. Suppression 02/24/2017 p.
     21, 36, 54.

            14. Lieutenant Gibney, after observing [Appellant’s]
     activities at 1106 Chestnut Street, in light of the predictive
     behavior provided by the CI, and the totality of the investigation,
     radioed for [Appellant’s] vehicle to be stopped. N.T. Suppression
     02/24/2017 p. 22, 26.

          15. Officer Daniel Falkenstein is employed by the Darby
     Borough Police Department since August 2011. N.T. Suppression
     02/24/2017 p. 63.

           16. On March 2, 2016[,] at approximately 5:34 p.m.[,]
     Officer Falkensten received a call from Lieutenant Gibney to stop
     a white Nissan Maxima that was the subject of a narcotics
     investigation. Based on that information, Officer Falkenstein
     conducted a traffic stop on [Appellant’s] vehicle just past Ridge
     Avenue on MacDade Boulevard. N.T. Suppression 02/24/2017 p.
     64.

           17. Officer Falkenstein made contact with [Appellant] who
     was the driver and the sole occupant of the vehicle. Officer
     Falkenstein requested [Appellant’s] license and registration and
     advised him he was being stopped as part of a narcotics
     investigation. N.T. Suppression 2/24/2017 p. 64, 64.

           18. [Appellant] immediately acted very nervous. Officer
     Falkenstein became concerned [that Appellant] may be armed and
     removed him from the vehicle to conduct a pat down search. As
     [Appellant] was standing next to Officer Falkenstein, he smelled
     an odor of burnt marijuana. N.T. Suppression 02/24/2017 p. 66.

           19. [Appellant] was wearing a green coat. Inside the left
     jacket pocket was located a partially smoked marijuana cigarette.
     [Appellant] was then taken into custody and later transported to
     the police station. N.T. Suppression 02/24/2017 p. 67, 68.

           20. [Appellant] was searched incident to his arrest at the
     police station. Found in his left sock were four small yellow plastic
     baggies containing a white chalky substance consistent with crack
     cocaine packaged for sale. Further search located seven individual
     blue wax baggies containing a brown powdery substance
     consistent with heroin packaged for sale in his underwear, 21

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      smaller yellow plastic bags containing the same white chalky
      substance as the initial four bags and a single pill that was later
      identified as Oxycodone. [Appellant] also was in possession of
      $41 in his right breast pocket and $390 in a pant pocket. N.T.
      Suppression 02/24/2017 p. 70, 71.

           21. After [Appellant] was arrested, 1106 Chestnut Street
      was secured so no evidence could be destroyed while a search
      warrant was obtained. N.T. Suppression 02/24/2017 p. 56.

             22. Lieutenant Gibney obtained a search warrant for 1106
      Chestnut Street. During the search of that residence a quantity
      of narcotics, a .45 caliber Taurus semi auto[matic] handgun with
      10 live rounds, paraphernalia and business cards with “Beezy” and
      [Appellant’s] phone number on them. All items seized are listed
      in the inventory which was admitted into evidence along with the
      search warrant. N.T. Suppression 02/24/2017 p. 83.

Suppression Court Order and Opinion, 8/28/17, at 1–8 (internal brackets

omitted; emphasis in original). Accordingly, the suppression court vacated its

first order denying suppression and then denied the motion to suppress a

second time. Id. at 13.

      Following Appellant’s convictions, the trial court sentenced him to

incarceration for an aggregate term of five to ten years.   Sentencing Order,

6/26/18. This appeal followed. Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents the following questions for our consideration:

      A. Did the [t]rial [c]ourt commit an error of law when it failed to
         grant Appellant’s Motion to Suppress, where the officers lacked
         reasonable suspicion or probable cause to stop the vehicle he
         was traveling in thus violating his constitutional rights?

      B. Did the trial court commit an error of law by failing to grant
         Appellant’s Motion to Suppress, where the evidence used to


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         support a finding of reasonable suspicion carried a low degree
         of reliability?

      C. Did the trial court commit an error of law by failing to grant
         Appellant’s Motion to Suppress where the information provided
         to law enforcement was stale at the time of the seizure of
         Appellant?

Appellant’s Brief at 4.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047–1048 (Pa. Super.

2012) (en banc); Pa.R.Crim.P. 581(H).

            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are correct.

             We may consider only the evidence of the prosecution and
      so much of the evidence for the defense as remains
      uncontradicted . . . . 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. Williams, 2008 PA
      Super 6, 941 A.2d 14, 26–27 (Pa. Super. 2008) (en banc)
      (citations, quotations, and quotation marks omitted).

Commonwealth v. Williams, 176 A.3d 298, 315 (Pa. Super. 2018).

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. Stilo, 138 A.3d 33, 35–36 (Pa.

Super. 2016); In re L.J., 79 A.3d 1073, 1083–1087 (Pa. 2013).


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       Appellant first argues that the traffic stop was not supported by

“reasonable suspicion to believe that he was engaged in criminal activity or

probable cause to believe that a crime had been committed.” Appellant’s Brief

at 12. Appellant complains that:

       [t]he only information that was present at the time of the stop
       was that [Lieutenant] Gibney wanted the vehicle stopped for a
       drug investigation despite not having [had] any contact with the
       [CI] or anyone who knew [Appellant] in two months. . . . It is
       clear that [Officer Falkenstein] did not have any information at his
       disposal to support the traffic stop.

Id. at 15–16.2

       The Commonwealth responds:

             The vehicle stop was an investigative detention . . . . It was
       a stop to investigate [Appellant’s] involvement in drug activity
       that turned into a custodial detention once the officer smelled
       marijuana.

                                           ***

       [Officer Falkenstein] stopped the vehicle as a result of a “narcotics
       investigation.” Tr. 2/24/17, 63; see also Tr. 2/24/17, 65 (“an
       investigation of drug complaints”). Lieutenant Gibney never told
       Officer Falkenstein to “arrest” [Appellant]; instead he “called for
       [Appellant] to get stopped.” Id. at 19; see also Id. at 20, 49, 50,
       64, 65, [71–74], 76, 77 (Lieutenant Gibney only instructed him to
       “stop” [Appellant], not arrest him.). The officer stopped the
       vehicle to investigate whether the driver was using it as part of a
       drug trafficking operation.
____________________________________________


2 Within Appellant’s first issue, he challenges Officer Falkenstein’s frisk
pursuant to Terry v. Ohio, 392 U.S. 1 (1968), and the search of Appellant’s
coat pocket as illegal. Appellant’s Brief at 17–22. These two claims are waived
because Appellant did not include them in his Pa.R.A.P. 1925(b) statement.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues
not raised in a 1925(b) statement will be deemed waived.”); Rule 1925(b)
Statement, 8/14/18.

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Commonwealth’s Brief at 11, 13.

      To secure the right of citizens to be free from intrusions by police, courts

in Pennsylvania require law enforcement officers to demonstrate ascending

levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive. Commonwealth v. Beasley, 761 A.2d

621, 624 (Pa. Super. 2000). There are three levels of interaction between

police officers and citizens:

            The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to respond.
      The second, an “investigative detention” must be supported by a
      reasonable suspicion; it subjects a suspect to a stop and a period
      of detention, but does not involve such coercive conditions as to
      constitute the functional equivalent of an arrest. Finally, an arrest
      or “custodial detention” must be supported by probable cause.

Commonwealth v. Ranson, 103 A.3d 73, 77 (Pa. Super. 2014) (quoting

Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012)). The

following factors impact an officer’s reasonable suspicion that an individual is

engaging in criminal conduct:

      A police officer may detain an individual in order to conduct an
      investigation if that officer reasonably suspects that the individual
      is engaging in criminal conduct. This standard, less stringent than
      probable cause, is commonly known as reasonable suspicion. In
      order to determine whether the police officer had reasonable
      suspicion, the totality of the circumstances must be considered.
      In making this determination, we must give due weight ... to the
      specific reasonable inferences the police officer is entitled to draw
      from the facts in light of his experience. Also, the totality of the
      circumstances test does not limit our inquiry to an examination of
      only those facts that clearly indicate criminal conduct. Rather,


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      even a combination of innocent facts, when taken together, may
      warrant further investigation by the police officer.

Commonwealth v. Freeman, 150 A.3d 32, 36–37 (Pa. Super. 2016)

(quoting Commonwealth v. Rogers, 849 A.2d 1185, 1189 (Pa. 2004)

(internal quotation marks and citation omitted)).

      Morever:

      for a stop to be valid, someone in the police department must
      possess sufficient information to give rise to reasonable suspicion.
      The officer with the reasonable suspicion, usually the dispatcher,
      need not convey all of this background information to the officer
      who actually effectuates the stop. Thus, the police may justify the
      search by presenting sufficient evidence at the suppression
      hearing that someone in the chain of command had reasonable
      suspicion before the stop, even if the arresting officer did not.

Commonwealth v. Walls, 206 A.3d 537, 542 (Pa. Super. 2019) (quoting

Commonwealth v. Barber, 889 A.2d 587, 594 (Pa. Super. 2005)).

      Here, after reconsideration, the suppression court “concede[d] the stop

of [Appellant’s] vehicle constituted a custodial detention.” Suppression Court

Opinion, 7/28/17, at 13. According to the suppression court:

      [The] combination of information from a known reliable source
      with first[-]hand knowledge, extensive corroboration and their
      own observations provided ample reason for police to suspect
      criminal conduct was afoot and to stop [Appellant’s] vehicle. We
      find [Lt.] Gibney had probable cause to stop [Appellant’s] vehicle.

Id. at 16.

      Upon review, we find support in the record for the suppression court’s

findings of fact. N.T. Suppression, 2/24/17, at 6–78. However, we affirm on

a different legal basis because the suppression court used the reasonable-


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suspicion standard (“criminal conduct was afoot”) to reach its conclusion that

the police had probable cause to stop Appellant’s vehicle. Based on the totality

of the circumstances, we agree with the Commonwealth that the vehicle stop

was an investigatory detention supported by reasonable suspicion. While our

basis for upholding the legality of the stop may be different than that of the

trial court, we emphasize “an appellate court is not bound by the rationale of

the trial court and may affirm on any basis if the record supports it.”

Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018).

      Information provided by the CI before March 2, 2016, which Lieutenant

(“Lt.”) Gibney confirmed with the Philadelphia police and DEA, provided Lt.

Gibney with reason to suspect that Appellant was engaged in a drug-trafficking

operation.   Police surveillance of Appellant’s vehicle in the 1100 block of

Chestnut Street for several months and Appellant’s activity at the stash house

on March 2, 2016, provided Lt. Gibney with reason to suspect that criminal

activity was afoot.    Armed with specific and articulable facts regarding

Appellant’s involvement in a drug operation, the make and model of his

vehicle, the location of his stash house, and his conduct on March 2, 2016, Lt.

Gibney directed Officer Falkenstein to stop Appellant’s vehicle.         Officer

Falkenstein conducted the vehicle stop to further Lt. Gibney’s investigation

into Appellant’s drug activity. N.T., 2/24/17, at 59–62. Officer Falkenstein’s

vehicle stop did not involve “such coercive conditions as to constitute the

functional equivalent of an arrest.” Ransom, 103 A.3d at 77; Gutierrez, 36


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A.3d at 1107. We conclude that Officer Falkenstein had reasonable suspicion

to stop Appellant’s vehicle in furtherance of Lt. Gibney’s investigation.3

       Next, Appellant argues that the suppression court erred in denying him

relief “because the information used to establish reasonable suspicion and

probable cause carried a low degree of reliability.” Appellant’s Brief at 23.

Specifically, Appellant complains that the CI’s information did not disclose

objective facts, it was not corroborated by independent police work over the

course of three months, and it did not pertain to the inner workings of

Appellant’s alleged operation.        Id. at 23, 25, and 30.   In support of his

argument, Appellant relies on Commonwealth v. Wilson, 622 A.2d 293 (Pa.

Super. 1993).4 Appellant’s Brief at 30. Notably, Appellant does not clarify the

context of his challenge, i.e., the vehicle stop or the search of his stash house.

____________________________________________


3  Officer Falkenstein did not arrest Appellant until the officer noticed an odor
of burnt marijuana “coming from [Appellant’s] person.” N.T., 2/24/17, at 62,
63. Officer Falkenstein testified that Appellant was the sole occupant of the
vehicle. Id. at 61. He also testified as to his training and experience
identifying the odor of burnt marijuana, which he described as “distinct,
pungent.” Id. at 62–63.

      The suppression court found, and the record confirms, that, based on
the officer’s observations, he had probable cause to arrest Appellant and
search him. Suppression Court Opinion, 8/28/17, at 16–17; N.T., 2/24/17,
at 61–63. Appellant acknowledges that he was “constitutionally seized once
the vehicle was stopped.” Appellant’s Brief at 14.

4   Wilson is not applicable. Therein, the Court had:

       no insight as to the “basis” of the confidential informant’s
       “knowledge” with regard to the information recited to the police.



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       The Commonwealth counters that the CI’s information was reliable

because the CI was an identified source, Lt. Gibney confirmed the CI’s

information about Appellant’s drug activity with the Philadelphia police and

the DEA, and the CI accurately predicted Appellant’s behavior with regard to

the stash house. Commonwealth’s Brief at 14, 16–17. The Commonwealth

also submits that “the CI advised the police that he (the CI) bought drugs

from [Appellant].      The CI identified a photo of [Appellant].   And the CI’s

information resulted in at least two other arrests for the Darby Police.” Id. at

17 (citing Findings of Fact 3–6).

       “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). “An informant’s tip


____________________________________________


       This does not mean that this aspect of the “reasonable suspicion”
       criteria cannot be satisfied by the detailed nature of the tip.
       However, we find that the color and type of vehicle driven by the
       defendant were facts not restricted to those in the defendant’s
       inner circle of friends. It would have been information accessible
       to the public and general acquaintances of the accused.

Wilson, 622 A.2d 293, 296 (1993).

      In contrast, the CI in this case provided Lt. Gibney with information
about more than Appellant’s vehicle; he described Appellant’s involvement in
a drug organization, Appellant’s behavior at the stash house, and his personal
drug dealings with Appellant. N.T. Suppression, 2/24/17, at 6–78. The
suppression court addressed the CI’s reliability in its opinion. Suppression
Court Opinion, 8/28/17, at 14–15.


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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) (quoting Luv, 735 A.2d at 90).

       We have determined that Officer Falkenstein had reasonable suspicion

to stop Appellant’s vehicle in furtherance of Lt. Gibney’s drug investigation.

Additionally, Officer Falkenstein had probable cause to arrest Appellant based

on his observation that Appellant smelled of burnt marijuana. Thus, we need

not examine whether the CI’s information provided probable cause to stop or

to arrest Appellant.

       Lastly,5 Appellant argues that the CI’s information “was stale at the time

of the police actions.” Appellant’s Brief at 35. According to Appellant, the CI’s

last contact with Appellant was a week before the CI spoke with Lt. Gibney;

three months later, Lt. Gibney directed the traffic stop without having received

any additional information about Appellant from the CI or other sources. Id.

at 36. Appellant asserts that “a three-month period is clearly insufficient to

establish probable cause” for issuance of the search warrant for 1106 Chestnut


____________________________________________


5  Within Appellant’s last issue, he challenges the initial warrantless entry of
1106 Chestnut Street. Appellant’s Brief at 37–45. This issue is waived
because Appellant did not include it in his Rule 1925(b) statement. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”); Rule 1925(b)
Statement, 8/14/18.

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Street. Id. at 37 (citing Commonwealth v. Novak, 335 A.2d 773, 776 (Pa.

Super. 1975) (evidence of drug sales occurring seven weeks before arrest was

insufficient to establish probable cause for issuance of arrest warrant)).

      The Commonwealth responds:           “The four corners of the affidavit

contained reliable information from a CI that [Appellant] was selling drugs and

a   lawful   search   of   [Appellant’s]   person   confirmed    the   CI’s   tip.”

Commonwealth’s Brief at 21. Specifically, the Commonwealth explains that

the lawful stop of Appellant’s vehicle resulted in the lawful arrest of Appellant;

upon searching Appellant incident to arrest, the police recovered:

      ample evidence further corroborating the tip from the CI that
      [Appellant] was drug dealer and using the house at 1106
      Chestnut Street as a stash house: 21 bags of crack cocaine, one
      Oxycodone pill, four separate bags of crack cocaine in his sock,
      seven bags of heroin in his underwear, $41.00 in his right breast
      pocket, and $390.00 in his right pant pocket. [N.T.,] 2/24/17,
      70–71.

Id. at 23. According to the Commonwealth, the CI’s information was not stale

because the contraband recovered from Appellant’s person demonstrated

“that the criminal activity continued up to the date of the issuance of the

warrant[.]” Id. at 25 (citing Novak, 335 A.2d at 775).

      A search warrant must be supported by probable cause. U.S. Cont.

amend. IV; Pa.Const. Art. I, § 8. “Probable cause exists where the facts and

circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted.”


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Commonwealth v. Jones, 988 A.2d 649, 655 (Pa. 2010) (quoting

Commonwealth v. Thomas, 292 A.2d 352, 357 (Pa. 1972)).

     “In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983), the United States Supreme Court established the ‘totality of the

circumstances’ test for determining whether a request for a search warrant

under the Fourth Amendment is supported by probable cause.” Jones, 988

A.2d at 655. The Pennsylvania Supreme Court adopted this test for purposes

of making and reviewing probable cause determinations under Article I,

Section 8.    Commonwealth v. Gray, 503 A.2d 921 (Pa. 1986).                 The

Pennsylvania Supreme Court has described this test as follows:

     Pursuant to the “totality of the circumstances” test set forth by
     the United States Supreme Court in Gates, the task of an issuing
     authority is simply to make a practical, common-sense decision
     whether, given all of the circumstances set forth in the affidavit
     before him, including the veracity and basis of knowledge of
     persons supplying hearsay information, there is a fair probability
     that contraband or evidence of a crime will be found in a particular
     place .... It is the duty of a court reviewing an issuing authority’s
     probable cause determination to ensure that the magistrate had a
     substantial basis for concluding that probable cause existed. 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.

                                    * * *

     Further, a 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 the warrant.




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Jones, 988 A.2d at 655 (quoting Commonwealth v. Torres, 764 A.2d 532,

537–538, 540 (Pa. 2001) (internal brackets omitted)).

      Regarding staleness, we have explained that the “[a]ge of the

information supporting a warrant application is a factor in determining

probable cause.” Commonwealth v. Hoppert, 39 A.3d 358, 363 (Pa. Super.

2012). “If too old, the information is stale, and probable cause may no longer

exist.” Id. However, staleness is not determined by age alone, as this would

be inconsistent with a totality of the circumstances analysis. Id.

      If the officer is presented with evidence of criminal activity at
      some prior time, it must also be shown that the criminal activity
      continued up to or about the time the warrant is issued, in order
      to support a finding of probable cause. There is no hard and fast
      rule regarding what constitutes stale information; such
      determinations must be made on a case-by-case basis. The
      applicable standard for determining the time limits to be placed
      on search warrants is one of reasonableness.

Commonwealth v. Vergotz, 616 A.2d 1379, 1382 (Pa. Super. 1992)

(internal citations omitted).

      In denying Appellant’s challenge to the search warrant, the suppression

court opined that:

      [t]he narcotics found on [Appellant] during his search incident to
      arrest totally validated the CI’s information. [Lt.] Gibney then
      used the information he obtained from the CI, the results of his
      own investigation, and [Appellant’s] fresh arrest for drug
      possession to establish probable cause to obtain a search warrant
      for 1106 Chestnut Street. This [c]ourt determines that the Search
      Warrant in question was issued upon a proper determination of
      probable cause by the issuing Magisterial District Justice.

Suppression Court Opinion, 8/28/17, at 17.


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      Upon review, we conclude that the suppression court’s factual findings

are supported by the record and the legal conclusions drawn from those facts

are correct. The affidavit in the instant case, when read in the light of common

sense and the totality of the circumstances, supports the finding that probable

cause existed for a search Appellant’s stash house. In the affidavit, Lt. Gibney

detailed information provided by the CI about Appellant selling heroin in the

Darby, Southwest Philadelphia, and West Philadelphia areas, using a stash

house in the 1100 block of Chestnut Street in Darby to “re-up” his supply, and

driving a “tinted out white Maxima.”           Affidavit of Probable Cause,

Commonwealth Exhibit 11, at 2. Lt. Gibney explained his confirmation of the

CI’s information, the CI’s identification of Appellant from a photograph, police

surveillance of the 1100 block of Chestnut Street, and police observation of

Appellant entering the stash house on March 2, 2016, in a manner the CI

predicted.   Id.   Lt. Gibney also indicated that the CI had used, sold, and

packaged drugs in the past. Id. The affidavit also describes the contraband

recovered during Appellant’s arrest and search, which demonstrates the

continuing nature of Appellant’s criminal activity. Id. at 3.

      The ongoing investigations, the CI’s information, Appellant’s conduct on

March 2, 2016, and the recovered contraband were facts and circumstances

within Lt. Gibney’s knowledge “and of which he ha[d] reasonably trustworthy

information[;]” thus, they were “sufficient in themselves to warrant a man of




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reasonable caution in the belief that a search should be conducted.” Jones,

988 A.2d at 655. Appellant’s final claim does not warrant relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/19




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