J-A17028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KONSTANTIN EPELBAUM

                         Appellant                    No. 497 EDA 2013


          Appeal from the Judgment of Sentence January 7, 2013
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0006399-2012


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                       FILED DECEMBER 15, 2014

      Appellant, Konstantin Epelbaum, appeals from the judgment of

sentence entered January 7, 2013, by the Honorable John J. Rufe, Court of

Common Pleas of Bucks County. We affirm.

      In December 2011, Bensalem Township Police conducted a controlled

buy from Epelbaum at his residence located at 21 Carmelita Drive,

Southampton, Pennsylvania.      Police observed a hand-to-hand transaction

take place between Epelbaum and a Confidential Informant (“C.I.”).

Thereafter, police met the C.I. at a pre-determined location and the C.I.

handed over marijuana procured from Epelbaum. Police conducted a second

controlled buy utilizing the same C.I. later that month.

      Within 24 hours of December 28, 2011, the C.I. informed Officer

Michael Brady and Corporal Adam Schwartz that Epelbaum was waiting on
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his source to “re-up” his marijuana supply, and that Epelbaum had between

$20,000.00 and $25,000.00 in his residence with which to purchase the

marijuana.    The C.I. further stated that the money was the resulting

proceeds from previous marijuana sales.

      Based upon the information provided by the C.I., a search warrant was

authorized for marijuana, drug paraphernalia, and proceeds from drug sales

at Epelbaum’s residence. Following a search of the residence on December

28, 2011, police recovered approximately eight pounds of marijuana, drug

paraphernalia, and two firearms. Following a search of the residence, police

recovered, among other things, approximately 24 plastic containers of

marijuana, drug paraphernalia, a clear bag containing mushrooms, and

$1,032.00 in cash.

      On January 7, 2013, the trial court conducted a suppression hearing.

Following the hearing, the suppression court concluded that because the

application for search warrant did not specify the exact dates in December

2011, on which the controlled drug purchases were conducted, that

information was stale.   See N.T., Suppression Hearing, 1/7/13 at 23-25.

However, the court found that the information from the C.I. regarding the

large quantity of cash Epelbaum possessed at his residence to purchase

marijuana, which was reported to police within 24 hours of when the search

warrant application was submitted, was reliable and credible. See id. at 24-

25.   Therefore, the court refused to suppress any evidence of drugs or




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money recovered at Epelbaum’s residence, with the exception of any pre-

recorded buy money present from the previous stale transactions.

        Following a waiver trial, Epelbaum was convicted of possession with

intent to deliver a controlled substance1 (marijuana and psilocybin) and two

counts of possession of drug paraphernalia.2       Thereafter, the trial court

sentenced Epelbaum to 48 hours to six months’ incarceration. This timely

appeal followed.

        On appeal, Epelbaum raises the following issues for our review:

        A. Whether the trial court erred in finding the search warrant
           valid for 21 Carmelita Drive, Southampton, PA 18954 because
           the affidavit lacked probable cause?

        B. Whether the trial court erred in admitting Appellant’s
           statement into evidence because it was the fruit of an illegal
           search?

Appellant’s Brief at 4.

        We review the denial of a motion to suppress physical evidence as

follows.

           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.

           [W]e may consider only the evidence of the prosecution
           and so much of the evidence for the defense as remains
           uncontradicted when read in the context of the record as a
____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(32).



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         whole. Where the record supports the findings of the
         suppression court, we are bound by those facts and may
         reverse only if the court erred in reaching its legal
         conclusions based upon the facts.

         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. Houck, ___ A.3d ___, ___, 2014 WL 4783552 at *10

(Pa. Super., filed Sept. 26, 2014) (internal citations and quotations omitted).

      Instantly, Epelbaum argues that the four corners of the search warrant

failed to establish probable cause that contraband would be discovered in his

residence. See Appellant’s Brief at 13. We disagree.

         Under the federal and state constitutional prohibitions of
         unreasonable searches and seizures, both the United
         States Supreme Court and this Court have consistently
         held that, subject to certain exceptions, a search is
         constitutionally invalid unless it is conducted pursuant to a
         warrant issued by a neutral and detached magistrate and
         supported by probable cause. Probable cause exists where,
         based upon a totality of the circumstances set forth in the
         affidavit of probable cause, including the reliability and
         veracity of hearsay statements included therein, there is a
         fair probability that ... evidence of a crime will be found in
         a particular place. In reviewing an issuing authority's
         decision to issue a warrant, a suppression court must
         affirm unless the issuing authority had no substantial basis
         for its decision

Commonwealth v. Lyons, 79 A.3d 1053, 1063-1064 (Pa. 2013) (internal

quotes and citations omitted).

      Pennsylvania Rule of Criminal Procedure 203, Requirements for

Issuance, provides in part:

      (B) No search warrant shall issue but upon probable cause
      supported by one or more affidavits sworn to before the issuing


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      authority in person or using advanced communication
      technology. The issuing authority, in determining whether
      probable cause has been established, may not consider any
      evidence outside the affidavits.

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

      A cursory examination of the search warrant belies Epelbaum’s claims

that it did not state that drugs or money would be present in his residence.

The Affidavit of Probable Cause plainly states that the C.I. informed police

within 24 hours of December 28, 2011, that Epelbaum was “waiting on his

source to re-up his marijuana supply,” and that Epelbaum “had between

$20,000.00 and $25,000.00 in his residence … that he planned on

p[ur]chasing the marijuana with.”     Affidavit of Probable Cause, Application

for Search Warrant and Authorization, filed 12/28/11. Police applied for and

executed the search warrant within 24 hours of receiving this information.

Contrary to Epelbaum’s assertions otherwise, the Affidavit also contains

information regarding the C.I.’s credibility:

      Whereas C.I. 11-67 has no crimen falsi convictions. C.I. 11-67
      has never supplied any information to your affiants that turned
      out to be inaccurate, untruthful or unreliable. The confidential
      information was not under arrest, and was not financially
      compensated for supplying the information.

Id.

      Based upon the totality of the circumstances as set forth above, we

find the affidavit contained sufficient facts to believe that evidence of a large

scale drug operation would be discovered at Epelbaum’s residence when

police executed the search warrant on December 28, 2011. Therefore, we



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do not find that the order denying Epelbaum’s motion to suppress physical

evidence was in error.

     Lastly, Epelbaum argues that the lower court erred in admitting his

statements made to police following his arrest. See Appellant’s Brief at 16.

Epelbaum did not raise this issue in his Rule 1925(b) statement of errors

complained of on appeal, and thus, it         is waived.     See Pa.R.A.P.

1925(b)(4)(vii); Commonwealth v. Melvin, ___ A.3d ___, ___, 2014 WL

4100200 at *28 (Pa. Super., filed Aug. 21, 2014).

     Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2014




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