J-S13001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    NORMAN BLACKWELL,

                             Appellant                No. 729 WDA 2017


         Appeal from the Judgment of Sentence Entered March 27, 2017
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0007623-2015


BEFORE: BENDER, P.J.E., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED MAY 22, 2019

        Appellant, Norman Blackwell, appeals from the judgment of sentence of

4-10 years’ incarceration, imposed following his conviction for drug and

firearm offenses. Appellant challenges the trial court’s denial of his pre-trial

motion to reveal the identity of a confidential informant, and the trial court’s

denial of his motion to postpone sentencing. After careful review, we affirm.

        The trial court summarized the facts adduced at Appellant’s trial as

follows:
        On February 19, 2015, police officers executed a search warrant
        at 1875 Sawmill Run Boulevard, Apartment 2, Pittsburgh,
        Pennsylvania. Police officers had previously been conducting
        surveillance on the apartment and had observed [Appellant]
        entering and exiting the residence on multiple occasions. A
        vehicle [Appellant] had been observed driving was parked outside
        the residence on a number of occasions. [Appellant] had been
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S13001-19


     observed using keys to unlock and lock the door to the apartment
     when entering and exiting the apartment. Upon executing the
     search warrant, police officers recovered a Duquesne Light electric
     bill, a Comcast cable bill and letters addressed to [Appellant] in a
     drawer in the kitchen cabinets of the apartment. The pieces of
     mail were dated 2014 and 2015. Cash in the amount of $3,517
     was also recovered from the bedroom of the apartment.
     Medication prescribed to [Appellant] was found in the apartment.
     Officers also observed two photographs of [Appellant] in the
     residence. Relevant to the criminal charges in this case, a
     stamping device and empty stamp bags were found in the
     apartment.1 Two cell phones were also located in the apartment.
     Police officers recovered a firearm in the residence from the
     pocket of a coat hanging in the bedroom closet. Three hundred
     and seventy-one stamp bags of heroin (8.809 grams) were
     recovered from a gray bag and a Pringles (potato chips) container,
     both of which were located in a kitchen cupboard.             After
     [Appellant] was taken into custody, he asked the police officers to
     use his keys to lock the apartment door.
        1 These items are used to label and package heroin for
        resale.

     Testimony at trial established that there was only one bed in the
     apartment. All of the clothes located in the apartment were size
     XXL. At the relevant time [Appellant] was five feet, eleven inches
     tall and weighed approximately 245 pounds. There was no
     evidence that anyone else resided at the apartment.

Trial Court Opinion (TCO), 6/10/18, at 1-2.

     The Commonwealth charged Appellant with person not to possess a

firearm, 18 Pa.C.S. § 6105; possession with intent to deliver a controlled

substance (PWID), 35 P.S. § 780-113(a)(30); possession of a controlled

substance, 35 P.S. § 780-113(a)(16); and possession of drug paraphernalia,

35 P.S. § 780-113(a)(32). On April 16, 2016, Appellant filed a timely motion

seeking to have the Commonwealth reveal the identity of the confidential

informant, as well as a timely motion to suppress the seized contraband.



                                    -2-
J-S13001-19



Appellant filed amendments to both motions on April 21, 2016. Following a

hearing held on May 5, 2016, the trial court denied both motions. See Order

Denying Motion to Produce Confidential Informant, 5/16/16, at 1; Order

Denying Motion to Suppress, 5/16/16, at 1.       A non-jury trial was held on

December 19-20, 2016, at the conclusion of which the court found Appellant

guilty on all counts. The trial court deferred sentencing until March 27, 2017.

       Prior to sentencing, Appellant obtained new counsel, Thomas Farrell,

Esquire, who entered his appearance on Appellant’s behalf on March 20, 2017.

Appellant simultaneously filed a motion to continue/postpone his sentencing

hearing in order to afford Attorney Farrell time to prepare.       The district

attorney consented to the continuance. Nevertheless, on March 27, 2017, the

trial court denied the motion to continue the sentencing hearing, and

proceeded to sentence Appellant to 4-10 years’ incarceration for PWID, and

to no further penalty for the remaining offenses. Appellant filed a timely post-

sentence motion on April 6, 2017, which the court denied without a hearing

on April 19, 2017. Appellant then filed a timely notice of appeal and a timely,

court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued its Rule

1925(a) opinion on July 10, 2018.1

       Appellant now presents the following questions for our review:

____________________________________________


1 Appellant’s notice of appeal was filed by the Allegheny County Public
Defender’s Office (ACPD), which the trial court appointed after Attorney Farrell
withdrew his appearance with leave of the trial court. Subsequently, two
changes in Appellant’s appointed counsel occurred due to those attorneys’
discontinuing their employment with the ACPD.

                                           -3-
J-S13001-19


       I.   Whether the trial court erred in failing to grant [Appellant]’s
            pre-trial motion to disclose the confidential informant’s
            identity when [Appellant] sufficiently demonstrated that
            production was material to his defense, reasonable, and in
            the interests of justice?

      II.   Whether the trial court erred in failing to grant [Appellant]’s
            request to postpone sentencing when [Appellant] had
            retained new counsel only seven days prior to the date of
            sentencing, upon being retained new counsel immediately
            entered his appearance and filed a motion for continuance,
            the Commonwealth consented to a continuance of
            [Appellant]’s sentencing hearing, and new counsel was
            unable to be adequately prepared for sentencing because
            [Appellant]’s prior counsel had not yet turned over
            [Appellant]’s file to him despite repeated requests for it?

Appellant’s Brief at 5.

      After a thorough review of the record, Appellant’s brief, the applicable

law, and the comprehensive and well-reasoned opinion of the Honorable

Anthony M. Mariani, we conclude that there is no merit to Appellant’s first

claim on appeal, and do so based on the reasons set forth in that opinion.

See TCO at 6-8 (ruling that the bald allegations of Appellant’s counsel, in the

absence of any evidentiary support, were not sufficient to demonstrate the

materiality of the informant’s identity to Appellant’s defense at trial).

      However, we disagree with the trial court’s conclusion that it did not err

when it denied Appellant’s motion to continue/postpone the sentencing

hearing, as Attorney Farrell presented a facially valid reason to postpone the

hearing (as he had not yet received Appellant’s file from prior counsel prior to

the hearing), no prior postponements of sentencing had been sought by the

defense, and because the Commonwealth did not object to the motion to



                                      -4-
J-S13001-19



continue. Nevertheless, we agree with the trial court that its error did not

prejudice Appellant. See TCO at 13 (“[Appellant] has not specified how, if at

all, he was prejudiced by the denial of Attorney Farrell’s request for

postponement.”). As noted by the Commonwealth, “a simple allegation that

more time is necessary for preparation will not serve as a basis for the reversal

of the denial of a continuance motion.” Commonwealth’s Brief at 17 (citing

Commonwealth v. Brown, 505 A.2d 295, 298 (Pa. Super. 1986)).

      In Brown, we articulated our standard of review as follows:

      The granting or refusal of a request for continuance is vested in
      the discretion of the trial court. The denial of a continuance will
      be reversed on appeal only upon a showing of palpable and
      manifest abuse of discretion. A simple allegation that more
      preparation is necessary for investigation and trial preparation will
      not suffice in demonstrating an abuse of discretion.           Mere
      shortness of time in which to prepare does not mandate the
      granting of a continuance. An appellant must be able to show
      specifically in what manner he was unable to prepare his defense
      or how he would have prepared differently had he been given
      more time.       We will not reverse a denial of a motion for
      continuance in the absence of prejudice.

Id. at 298 (cleaned up).

      In the case sub judice, Appellant has not argued, or otherwise

demonstrated, how Attorney Farrell would have prepared differently if he had

been granted a postponement of Appellant’s sentencing hearing. Appellant

has not demonstrated, for instance, what other witnesses he would have

called to the sentencing hearing, or what relevant evidence he could have

produced with more time to prepare. Accordingly, we conclude that Appellant

is not entitled to relief on his second claim.


                                      -5-
J-S13001-19



     Judgment of sentence affirmed.

     Judge Ott joins this memorandum.

     Judge Strassburger files a concurring and dissenting memorandum.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2019




                                 -6-
                                                                                                     Si   3 0 009:49
                                                                                          Circulated 04/23/2019      9
                                                                                                                1� I AM




                        IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
                                              CRIMINAL DMSION




             COMMONWEALTH OF PENNSYLVANIA                               )
                                                                        )
                        vs.                                             ) CC No. 201507623
                                                                        )
             NORMAN BIACKWELL,                                          )
                                                                        )
                                    Defendant.                          )
                                                                        )              ORIGINAL
                                                                                       Criminal Division
                                                                                    Dept. O� Court Records
                                                         OPINION                    AHoghony County, PA

             Mariani, J.

                                    This is a direct appeal wherein the defendant, Norman Blackwell, appeals

             from the April 19, 2017 denial of his post-sentencing motions following the judgment of

             sentence of March 27, 2017. After a non-jury trial, the defendant was convicted of being

             a person not to possess a firearm, possession of heroin, possession with intent to

             distribute heroin and possession of drug paraphernelia.         The defendant was sentenced to

             a period of imprisonment of not less than four years nor more than ten years at the felony

             drug count. No further penalty was imposed at the remaining counts. The defendant has

             filed a timely Notice of Appeal.



              �         The credible evidence presented at trial establshed that the following events
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         �.        -�_;:�Jbruary 19, 2015, police officers executed a search warrant at 1875 Sawmill
             �                  �
                      ��
             R� Bol)}evard, Apartment 2, Pittsburgh, Pennsylvania. Police officers had previously
\�.,.          �
    been conducting surveillance on the apartment and had observed the defendant entering

    and exiting the residence on multiple ocassions.               A vehicle the defendant had been

    observed driving was parked outside the residence on a number of ocassions.                  The

    defendant had been observed using keys to unlock and lock the door to the apartment

    when entering and exiting the apartment.                Upon executing the search warrant, police

    officers recovered a Duquense Light electric bill, a Comcast cable bill and letters

    addressed to the defendant in a drawer in the kitchen cabinets of the apartment.             The

    pieces of mail were dated 2014 and 2015.                 Cash in the amount of $3,517 was also

    recovered from the bedroom of the apartment. Medication prescribed to the defendant

was found in the apartment. Officers also observed two photographs of the defendant in

the residence.          Relevant to the criminal charges in this case, a stamping device and

empty stamp bags were found in the apartment.1 Two cell phones were also located in

the apartment. Police officers recovered a firearm in the residence from the pocket of a

coat hanging in the bedroom closet.                 Three hundred and seventy-one stamp bags of

heroin (8.809 grams) were recovered from a gray bag and a Pringles (potato chips)

container, both of which were located in a kitchen cupboard. After the defendant was

taken into custody, he asked the police officers to use his keys to lock the apartment door.



           Testimony at trial established that there was only one bed in the apartment. All of

the clothes located in the apartment were size XXL. At the relevant time the defendant

was five feet, eleven inches tall and weighed approximately 245 pounds. There was no

evidence that anyone else resided at the apartment.



I
    These items are used to label and package heroin for resale.


                                                        2
        Defendant's first two claims are that the evidence was insufficient to prove that he

possessed the heroin, the stamping device and empty stamp bags and the firearm that

were recovered from the apartment.       Proof of possession was necessary to convict the

defendant of possession of heroin, possession with intent to distribut the heroin,

possession of a firearm by a prohibited person and possession of drug paraphemelia.

Defendant challenges no other elements of those offenses. Relative to these claims of

error, the standard of review for sufficiency of the evidence claims is well settled:



               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 proof [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 the 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. Lehman, 820 A.2d 766, 772 (Pa. Super. 2003). In addition, "[a]ny

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." Commonwealth v. Cassidy, 668 A.2d 1143,



                                              3
1144 (Pa.Super. 1995). It is for the trier of fact to make credibility determinations.

Commonwealth v. Schoff, 911 A.2d 147, 159 (Pa.Super 2006).



       With respect to possessory offenses, possession can be found by proving actual

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

Heidler, 741 A.2d 231, 215 (Pa.Super. 1999).              Possession can be proved by

circumstantial evidence. Commonwealth v. Bentley, 276 Pa. Super. 41, 46, 419 A.2d 85,

87 (1980). In Commonwealth v. Carroll, 510 Pa. 299, 302, 507 A.2d 819, 821 (1986)

citing Whitebread and Stevens, To Have and To Have Not, 58 U.Va.L.Rev. 751, 755

(1972), the Pennsylvania Supreme Court explained that "[t]he purpose of the constructive

possession doctrine is to expand the scope of possession statutes to encompass those

cases where actual possession at the time of arrest cannot be shown but where the

inference that there has been actual possession is strong. 11   Constructive possession is

"the ability to exercise a conscious dominion over the contraband, the power to control

the contraband and the intent to exercise that control." Commonwealth v. Macolino, 503

Pa. 201, 206, 469 A.2d 132, 134 (1983). 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. Murdrick, 510 Pa. 305, 507 A.2d 1212 (1986). In Macolino, this

Court further determined that "an intent to maintain a conscious dominion may be

inferred from the totality of the circumstances; ... [and], circumstantial evidence may be

used to establish a defendant's possession of drugs or contraband." Macolino, 503 Pa. at

206, 469 A.2d at 134. (citations omitted). See also Commonwealth v. Dargan, 897 A.2d

496, 504 (2006); Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.Super. 2005);




                                             4
Commonwealth v. Kirkland, 2003 PA Super 279, 831 A.2d 607, 610 (Pa. Super. 2003),

appeal denied, 577 Pa. 712, 847 A.2d 1280 (Pa. 2004); Commonwealth v. Petteway,

2004 PA Super 109, 847 A.2d 713, 716 (Pa. Super. 2004); Commonwealth v. Parker,

2004 PA Super 113, 847 A.2d 745, 750 (Pa. Super. 2004).



       In Commonwealth vs. Hanson, 623 Pa. 388; 82 A.3d 1023, 1036-1037 (Pa. 2013),

the Pennsylvania Supreme Court held;

               Accordingly, we hold that, for purposes of Section
               9712.l(a), "physical possession or control" means the
               knowing exercise of power over a weapon, which may be
               proven through evidence of a direct, physical association
               between the defendant and the weapon or evidence of
               constructive control. Constructive control, in this setting,
               an analogue to constructive possession, entails the ability to
               exercise a conscious dominion and the intent to do so.




       In this case, the Commonwealth proved beyond a reasonable doubt that the

defendant possessed the heroin, the firearm and the stamping device and stamp bags in

question. Substantial trial evidence was presented that the apartment was the defendant's

residence and only the defendant's residence.      The correspondence addressed to the

defendant, the observations of the defendant unlocking and locking the residence during

surveillance, the fact that a vehicle associated with the defendant was parked outside the

apartment and the fact that the defendant directed the officers to the location of his keys

and asked officers to lock the residence after his arrest are all facts which support a

finding that the apartment was the defendant's residence. Additionally, the fact that the

only clothing inside the residence appeared to be of the defendant's size and that there




                                             5
was only one bedroom inside the apartment were indicative that the defendant was the

only resident of the apartment. This Court also believes that the fact that the contraband

recovered from the apartment was not particularly hidden inside the residence was proof

that the defendant was the only resident of the apartment.       Considering this evidence,

this Court believes that the evidence presented by the Commonwealth was sufficient to

convict.



       Defendant next claims that this Court erred when it refused to grant his pretrial

motion to disclose the identity of a confidential informant. Defendant filed a motion

claiming that the identity of the confidential informant was necessary because the

informant would have provided exculpatory testimony that would have benefitted the

defendant in this case. The Commonwealth has the benefit of a qualified privilege to

withhold the identity of a confidential informant. Commonwealth v. Bing. 713 A.2d 56

(Pa. 1998); Commonwealth v. Roebuck, 545 Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996).

To obtain disclosure of a confidential informant's identity, a defendant must first

establish, pursuant to Pa.R.Crim.P. 573(B)(2)(a)(i), that the information sought by the

defendant is material to the preparation of the defense and that the request is reasonable.

Roebuck supra at 1283,. Only when a defendant demonstrates that the identity of a

confidential informant is material to the defense should a trial court exercise its discretion

to determine whether the information should be revealed by balancing relevant factors,

which are initially weighted toward the Commonwealth. Commonwealth v. Herron, 380

A.2d 1228 (Pa. 1977).


       Citing Commonwealth v. Carter, 233 A.2d 284, 287 (Pa. 1967) and



                                              6
Commonwealth v. Marsh, 997 A.2d 318, 321-322 (Pa. 2010), the Superior Court, in

Commonwealth. v. Watson, 69 A.3d 605, 607--08 (Pa.Super. 2013), explained that a

court must consider the following principles in determining whether the identity of a

confidential informant should be disclosed:


              A further limitation on the applicability of the privilege
              arises from the fundamental requirements of fairness.
              Where the disclosure of an informer's identity, or of the
              contents of his communication, is relevant and helpful to
              the defense of an accused, or is essential to a fair
              determination of a cause, the privilege must give way. In
              these situations[,] the trial court may require disclosure and,
              if the Government withholds the information, dismiss the
              action.

              [N]o fixed rule with respect to disclosure is justifiable. The
              problem is one that calls for balancing the public interest in
              protecting the flow of information against the individual's
              right to prepare his defense. Whether a proper balance
              renders nondisclosure erroneous must depend on the
              particular circumstances of each case, taking into
              consideration the crime charged, the possible defenses, the
              possible significance of the informer's testimony, and other
              relevant factors.


       The record in this case discloses that the defendant did not provide a sufficient

basis to establish that the identity of the confidential informant was material to the

preparation of his defense.   Defendant argued to this Court that the informant never

interacted with the defendant and his identity should have been disclosed so he could

testify to that fact. Additionally, defendant argued that the affidavit of probable cause

submitted in support of the search warrant executed in this case was devoid of probable

cause because it did not disclose how the informant knew the defendant or that the

informant knew that the defendant sold drugs.




                                              7
        Importantly, the identity of the confidential informant was not material to any

possible defense that could have been mounted by the defendant at trial. The evidence

that was used to convict the defendant was evidence that was seized pursuant to a search

warrant from the residence associated with the defendant. The informant was not a

potential witness at trial and his or her testimony was not necessary to convict the

defendant at trial. Therefore, to the extent that defendant claimed that the identity of the

informant was material to any trial defense, such a claim was wholly meritless.



       With respect to the claim that the identity of the informant was necessary to

establish that probable cause did not exist for the issuance of the search warrant, the

defendant made bald, general allegations that the confidential informant would have

provided exculpatory information relative to the suppression motion. The defendant did

not provide any foundational factual support for those contentions beyond the

unsupported allegation that the informant would explain that he did not have a

relationship with the defendant that involved the trafficking of drugs. The defendant's

assertions were directly contradicted by the allegations contained in the search warrant

affidavit. Moreover, this Court could not endorse the defendant's request on such a weak

foundation. If general allegations that a confidential informant will provide exculpatory

information warranted the disclosure of the identity of a confidential informant, such

requests would be requested and granted in almost every case. Pennsylvania law requires

more and the defendant could not meet that burden in this case. The defendant's motion

was properly denied.




                                             8
         Defendant next claims that this Court erred when it refused to grant his pretrial

motion to suppress evidence based on a defective search warrant. Defendant claims that

the affidavit of probable cause was insufficient because it did not explain that the

defendant was ever observed selling drugs to anyone and that, therefore, the confidential

informant was unreliable.




         Article I, Section 8 and the Fourth Amendment each require that search warrants

be supported by probable cause. Commonwealth v. Jones, 988 A.2d 644, 655 (Pa. 2010).

"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 (Pa.1991) (quoting Commonwealth v. Miller, 513 Pa. 118, 518 A.2d

1187, 1191 (Pa. 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 that a search

should be conducted." Commonwealth v. Thomas, 448 Pa. 42, 292 A.2d 352, 357 (Pa.

1972).



         "Before an issuing authority may issue a constitutionally valid search warrant, he

or she must be furnished with information sufficient to persuade a reasonable person that

probable cause exists to conduct a search". Commonweatlh v. Davis, 466 Pa. 102, 351

A.2d 643 (1976).     The standard for determining whether the requisite level of probable

cause exists for the issuance of a search warrant is the "totality of circumstances" test set

forth in Illinois v. Gates, 462 U.S. 213, 76 L.Ed.2d 527, 103 S.Ct. 2317 (1983). See

Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921 (1985).         Specifically,




                                             9
                A magistrate is to make a 'practical, common-sense
                decision whether, given all the circumstances set forth in
                the affidavit before him, including the 'veracity' and basis
                of knowledge' of person supplying hearsay information,
                there is a fair probability that contraband or evidence of a
                crime will be found in a particular place.


Commonwealth v. Jones, 542 Pa. 418, 668 A.2d 114, 117, (1995) citing Gray, 503 A.2d
925, quoting Gates, 462 U.S. at 238-39.



          The information contained in an affidavit must be viewed "in a common sense,

non-technical manner and deference must be accorded to the issuing magistrate." Jones,

668 A.2d at 117. The magistrate's finding of probable cause must be limited to the four

comers of the affidavit. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141, 141

(1981).     Both the magistrate, in a pre-search determination of probable cause, and the

trial court in its post-search review of the search warrant, must read affidavits filed in

support of a search warrant in a common sense fashion in determining whether probable

cause exists. Commonwealth v. Leed, 2018 WL 2452659 (Pa. June 1, 2018). A reviewing

court should not conduct a de nova review of the issuing authority's probable cause

determination but should only determine whether there is substantial evidence in the

record supporting the decision to issue a warrant. Commonwealth v. Gagliardi, 128 A.3d

790, 794 (Pa. Super. 2015)       A reviewing court must afford deference to the issuing

authority's probable cause determination, and shall view the information set forth in the

affidavit in a common-sense, non-technical manner. Id. If a substantial basis exists to

support the issuing authority's probable cause finding, the trial court must uphold that

determination even if a different issuing authority might have found the affidavit

insufficient to support a warrant. Id. at 795.


                                                 10
        The Affidavit of Probable Cause clearly contains the requisite probable cause that \

evidence of criminal activity would be found in the Sawmill Run apartment.            The

affidavit explained that the defendant was specifically known by the street name of

"Dirt." The affidavit further explained that the defendant resided at 1875 Sawmill Run

Boulevard and that he had been selling heroin out of that residence. Relying on that

information, law enforcement officers had conducted surveillance of that location and

observed the defendant coming in and out of that residence. A silver BMW automobile

that the defendant had been known to drive was located outside the residence on a regular

basis. The affiant opined that it appeared as though drug transactions were occurring at

the residence.   The affidavit explained that law enforcement officers utilized a reliable

confidential source to make a controlled purchase of heroin from the defendant, who the

informant knew as "Dirt" from the 1875 Sawmill Run Boulevard residence.             After

ensuring that the confidential informant did not have any money or contraband on his or

her person, the informant was provided with official funds to make the controlled

purchase. Law enforcement officers maintained surveillance on the informant as the

informant entered the Sawmill Run residence. The informant exited the residence within

30 seconds and returned to the officers with heroin purchased from the defendant. The

informant advised the officers that "Dirt" told him or her that the heroin was "fire' and

that the informant should "hit me up when you're ready for more."      The affidavit also

listed a number of cases in which the confidential informant had provided information or

made controlled purchases of narcotics that resulted in convctions. Analyzing the facts

set forth in the affidavit in a common sense, non-technical manner, this Court believes




                                           11
that the affidavit contained substantial evidence supporting the issuance of the search

warrant



       Defendant finally claims that this Court erred when it denied sentencing counsel's

motion to continue the sentencing hearing. "The grant or denial of a motion for a

continuance is within the sound discretion of the trial court and will be reversed only

upon a showing of an abuse of discretion." Commonwealth v. Boxley. 948 A.2d 742, 746

(Pa. 2008). An abuse of discretion is "not merely an error of judgment; rather discretion

is abused when 'the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown

by the evidence or the record.'" Id.



       This Court did not abuse its discretion in denying the motion to continue the

sentencing of this case.    Defendant was represented by Attorney Christopher Urbano

during pretrial proceedings and at trial.     After the defendant was found guilty on

December 20, 2015, a pre-sentence investigation report was ordered and sentencing was

scheduled for March 27, 2016.



       On March 20, 2016, Attorney Thomas N. Farrell filed an entry of appearance and

a motion to postpone the sentencing. The motion for postponment indicated that Mr.

Farrell had just been hired and he had a scheduling conflict.        No other reason for

postponement was given.       Mr. Urbano had not requested that his appearance be

withdrawn.




                                            12
•   •   4   �   '




                             Based on the fact that Mr. Urbano was still counsel of record and the motion for

                    postponement was filed only one week before the sentencing hearing, the Court did not

                    act on it until March 27, 2016, since, among other things, the defendant would need to be

                    present for the selection of a new sentencing date. Despite his claim of a scheduling

                    conflict, Attorney Farrell appeared at the sentencing hearing and presented a witness on

                    behalf of the defendant.      Mr. Urbano did not attend the sentencing hearing.         The

                    defendant has not specified how, if at all, he was prejudiced by the denial of Attorney

                    Farrell's request for postponement such that an abuse of the Court's discretion occurred.



                             Accordingly, the judgment of sentence should be affirmed.




                                                                 By the Court:

                                                                    �·




                    Date:
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