J-A05028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CHRIS WILLIAMS                          :
                                         :
                     Appellant           :   No. 251 WDA 2018

         Appeal from the Judgment of Sentence December 19, 2017
   In the Court of Common Pleas of Allegheny County Criminal Division at
                      No(s): CP-02-CR-0003445-2016


BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 24, 2019

      Appellant, Chris Williams, appeals from his judgment of sentence

entered on December 19, 2017, in the Court of Common Pleas of Allegheny

County. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:

            On January 30, 2016, [Appellant] was charged with the
      following offenses for an incident that occurred on January 29,
      2016:

            • Count One: possession with intent to deliver cocaine
            (35 P.S. §780-113(a)(30), an ungraded felony)

            • Count Two: possession of a controlled substance
            (cocaine) (35 P.S. §780-113(a)(16), an ungraded
            misdemeanor)

            • Count Three: possession of paraphernalia (35 P.S.
            §780-113(a)(32), an ungraded misdemeanor)
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            • Count Four: criminal conspiracy (18 Pa.C.S.A. §903,
            an ungraded felony)

            • Count Five: person not to possess a firearm (18
            Pa.C.S.A. §6105(a)(1), a felony of the second degree)

      [Appellant] filed a Motion to Suppress on October 3, 2017
      challenging the issuance of the search warrant and the arrest of
      [Appellant].    After a hearing thereon, this [c]ourt denied
      [Appellant’s] Motion to Suppress. On December 19, 2017, the
      matter proceeded to a non-jury trial after which [Appellant] was
      found not guilty at count five, and guilty of the remaining counts.
      [Appellant] waived his right to a pre-sentence report and was
      sentenced to serve a total of eleven and a half (11 1/2) to twenty-
      three months in the Allegheny County Jail and a concurrent five
      (5) year period of probation.

            [Appellant] timely filed post-sentence motions, which were
      denied on January 16, 2018. [Appellant] filed his Notice of Appeal
      on February 15, 2018. [Appellant] was directed to file his concise
      statement of matters complained of on appeal via order dated
      February 23, 2018.

Trial Court Opinion, 6/26/18, at 1-2. Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents a single issue for our review:          “Whether this

Honorable Court committed reversible error by denying [Appellant’s] motion

to suppress.” Appellant’s Brief at 4. Appellant argues that the affidavit in

support of the search warrant obtained in this case did not contain information

sufficient to warrant a finding of probable cause within its four corners. Id.

at 8. Appellant further states that he was not named in the search warrant

as a target of the investigation, and there are no averments that he engaged

in any illegal activity. Id. at 11. As such, Appellant maintains the issuance of

the search warrant was in error. Id. at 8.



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      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

             Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record. . . . Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).   Further, “[i]t is within the suppression court’s sole province as

factfinder to pass on the credibility of witnesses and the weight to be given

their testimony.”   Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

Super. 2006). Moreover, our scope of review from a suppression ruling is

limited to the evidentiary record that was created at the suppression hearing.

In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

      In Commonwelth v. Jones, 988 A.2d 649 (Pa. 2010), our Supreme

Court addressed the requirements for a valid search warrant:

            Article I, Section 8 and the Fourth Amendment each require
      that search warrants be supported by probable cause. “The linch-
      pin that has been developed to determine whether it is appropriate
      to issue a search warrant is the test of probable cause.”
      Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887, 899
      (1991) (quoting Commonwealth v. Miller, 513 Pa. 118, 518
      A.2d 1187, 1191 (1986)). “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


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     that a search should be conducted.”     Commonwealth v.
     Thomas, 448 Pa. 42, 292 A.2d 352, 357 (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. In Commonwealth v. Gray, 509
     Pa. 476, 503 A.2d 921 (1986), this Court adopted the totality of
     the circumstances test for purposes of making and reviewing
     probable cause determinations under Article I, Section 8. In
     describing this test, we stated:

          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.

     Commonwealth v. Torres, 564 Pa. 86, 764 A.2d 532, 537–38,
     540 (2001).




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J-A05028-19


Id. at 655.   “In determining whether a search warrant is supported by

probable cause, appellate review is confined to the four corners of the

affidavit.” Commonwealth v. Galvin, 985 A.2d 783, 796 (Pa. 2009).

     In the case before us, the affidavit of probable cause in support of the

search warrant provides as follows:

     Your Affiant has 19 years experience with the City of McKeesport
     Police Dept. and is currently assigned to the narcotics
     investigation unit since 2004. Your Affiant has been involved in
     thousands of VCSDDCA arrests stemming from undercover
     operations and search warrants. Also assisted other agencies
     such as Pa. State Attorney Generals Ofc. and F.B.I. with wiretap
     violations.   Your Affiant has been trained by the D.E.A.,
     D.A.N.E.T., and the Pa. State in the field of narcotics.

     This specific investigation began on or about January 15, 2016
     when your Affiant was contacted by a confidential informant who
     will be referred to as CI throughout this affidavit for fear of
     retaliation and harm. This CI informed detectives that a black
     male known as DEAN is selling cocaine from his residence at 3414
     Oakland [S]t. in McKeesport Pa, 15132. And that DEAN will inform
     you to come to his residence or he will walk or drive his maroon
     [D]odge [D]urango [SUV] and meet your [sic] for the cocaine sale.
     CI states that DEAN sells $20 to $40 pieces of cocaine packaged
     in a small plastic baggie and has several plastic baggies on his
     person for sale at all times.

     At this point this Det/Sgt. and Det. SUMMERS set up spot
     surveillance on 3414 Oakland [S]treet in the City of McKeesport
     and observed the maroon [D]odge [D]urango parked in front of
     3414 Oakland [S]t. and also a black male exiting the residence
     and driving the [D]urango. This Det/Sgt. recognized the black
     male as DEAN WILLIAMS from a traffic stop conducted [in] the
     early month’s [sic] of 2015 in which DEAN advised this Det/Sgt.
     that he was residing at 3414 Oakland [St.] with his brother
     [Appellant]. Also during the spot surveillance detectives observed
     short term foot traffic from known drug users and also short
     vehicle traffic where DEAN would exit the apartment door at 3414
     Oakland [S]t. and approach vehicles.


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     This Det/Sgt. is very famalier [sic] with the male known as DEAN
     WILLIAMS and ha[d] conversation[s] with [Dean] WILLIAMS in
     the past year. The McKeesport police Narcotics unit investigated
     [Dean] WILLIAMS in the past in the McKeesport area and made
     an arrest and conviction of [Dean] WILLIAMS for possessing
     cocaine with the intent to deliver.

     This Det/Sgt. then retrieved a photograph of [Dean] WILLIAMS
     from JNET and showed the CI who confirmed the black male photo
     as [Dean] WILLIAMS who is supplying cocaine from his residence.

     Within the past 24 to 48 hours prior to the application of this
     search warrant th[ese] McKeesport Detectives met this CI who is
     willing to cooperate with this investigation buy [sic] conducting a
     controlled buy of cocaine from the male known as DEAN WILLIAMS
     from his address 3414 Oakland [S]t. McKeesport Pa, 15132. For
     this buy Detectives will handle the CI who was searched prior to
     the buy for contraband and money with negative results. The CI
     contacted the target via cellphone in which [Dean] WILLIAMS
     advised the CI of a meet location and he will arrive shortly. The
     CI was given official funds for the purchase and driven to the meet
     location in a[n] unmarked police vehicle and released and advised
     where to stand and not to talk to anyone during this controlled
     buy. The CI was in detectives[’] eyesight the entire time and did
     exactly what was instructed by detectives.          Det. SUMMERS
     conducted [spot] surveillance on 3414 Oakland [S]t. and after the
     phone call was made by the CI observed [Dean] WILLIAMS exit
     the front door of 3414 Oakland [S]t. and go directly to the CI meet
     location and observed by detectives was a hand to hand
     transaction between [Dean] WILLIAMS and the CI.              [Dean]
     WILLIAMS then immediately left and was followed by Det.
     SUMMERS directly back to 3414 Oakland [S]t. McKeesport and
     close[d] the door. The CI was then picked up and gave this
     Det/Sgt. a quantity of cocaine which was purchased from [Dean]
     WILLIAMS.      The CI was then searched a second time for
     contraband and money with negative results. The cocaine was
     field tested by Det. SUMMERS using a narco pouch tester with
     positive results.

     Based on the above facts in this above affidavit and information
     obtained your Affiant is respectfully requesting that a search
     warrant be issued for the person of DEAN WILLIAMS B/M D.O.B
     11-13-1957 and the residence located at 3414 Oakland [S]t.


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      McKeesport Pa, 15132. Based on illegal criminal activity of selling
      cocaine[.]

Affidavit of Probable Cause in support of Application for Search Warrant,

1/28/16, at 1-2.

      Reviewing the affidavit on its four corners, we conclude that the issuing

authority’s determination that there was probable cause to issue the search

warrant for 3414 Oakland Street was supported by the record. As set forth

above, the affidavit included testimony from a CI that drugs were being sold

by Dean Williams out of his residence at 3414 Oakland Street in McKeesport,

and often Dean Williams would utilize a maroon Dodge Durango. Based on

this information, the detectives conducted surveillance of the residence. The

affidavit reflects that during this surveillance, detectives observed a maroon

Dodge Durango parked in front of 3414 Oakland Street, and they witnessed

Dean Williams, who the detectives knew, exit the residence and drive the

Durango. Detectives observed “short term foot traffic from known drug users

and also short vehicle traffic where DEAN would exit the apartment door at

3414 Oakland [S]t. and approach vehicles.” Affidavit, 1/28/16, at 2.

      Furthermore, the detectives arranged and conducted a controlled buy

utilizing the CI. During that controlled buy, detectives saw Dean leave 3414

Oakland Street, go directly to meet the CI, engage in a hand-to-hand

transaction with the CI, immediately travel back to 3414 Oakland Street, enter

the residence, and close the door behind him. Thus, considering the totality

of circumstances, the information provided in the affidavit would permit the

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issuing authority to make a practical, common-sense decision that there is a

fair probability that contraband or evidence of a crime will be found at 3414

Oakland Street. Jones, 988 A.2d at 655. Accordingly, the search warrant

was supported by probable cause.        Thus, the trial court did not err in

determining that the search warrant was lawfully issued for 3414 Oakland

Street.

      Moreover, it was upon execution of the lawfully issued warrant that

detectives observed Appellant inside the residence at 3414 Oakland Street

packaging crack cocaine. The trial court summarized the related testimony

from the suppression hearing as follows:

      It is significant to note that [Appellant] was not the person who
      was the subject of the search warrant, however, he was observed
      in the premises on the date the search warrant was executed.
      Specifically, as detectives prepared to enter the residence to
      execute the search warrant, they witnessed [Appellant] in the
      kitchen preparing crack cocaine for sale.       Sergeant [Steve]
      Kondrosky testified that he viewed [Appellant] “manipulating
      plastic baggies of what was suspected to be crack cocaine on a
      plate.” Further Sergeant Kondrosky stated, “once he was walking
      away, he had blue rubber gloves on, he took those of[f], and I
      believe he actually put something in his pocket.” At this point,
      entry of the residence was made, and Detective Sydney Summers
      encountered [Appellant] walking from the kitchen. She searched
      his person and recovered a bag of cocaine from his right pocket.
      She also searched the area in the kitchen where Sergeant
      Kondrosky observed [Appellant] packaging cocaine and recovered
      25 bags of packaged crack cocaine.

Trial Court Opinion, 6/26/18, at 2-3 (internal citations omitted).

      Thus, detectives were lawfully present at 3414 Oakland Street when

they observed Appellant engaged in illegal activity inside the residence.


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Furthermore, cocaine was recovered from Appellant’s right pocket.        This

unlawful activity subjected Appellant to arrest.   “Where a search warrant

adequately describes the place to be searched and the persons and/or things

to be seized the scope of the search ‘extends to the entire area in which the

object of the search may be found’ and properly includes the opening and

inspection of containers and other receptacles where the object may be

secreted.” Commonwealth v. Caple, 121 A.3d 511, 521 n.2 (Pa. Super.

2015).   Accordingly, it is irrelevant that Appellant was not named in the

affidavit of probable cause or warrant as a target of the investigation. The

evidence seized from 3414 Oakland Street was properly admitted into

evidence against Appellant. The trial court did not err in denying Appellant’s

motion to suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2019




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