Com. v. Richardson, D. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID EUGENE RICHARDSON :
:
Appellant : No. 294 EDA 2018
Appeal from the Judgment of Sentence December 5, 2017
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002065-2016
BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 26, 2019
David Richardson appeals from the judgment of sentence entered
following his jury-trial convictions for persons not to possess firearms,
possession of a controlled substance with the intent to distribute (“PWID”),
possession of a controlled substance, and possession of drug paraphernalia.1
Richardson argues the trial court erred in denying his motion to compel the
identity of the confidential informant and erred in denying his motion to
suppress, in which he argued the search warrant was not supported by
probable cause. We affirm.
On March 17, 2016, Detective John DiBattista applied for a search
warrant for a house located on Union Street in West Chester, Chester County
____________________________________________
* Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. § 6105(a)(1) and 35 P.S. §§ 780-113(a)(30), 780-113(a)(16),
and 780-113(a)(32), respectively.
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(“Union Street house”). The affidavit of probable cause detailed his experience
as a police officer and detective and contained information about individuals
who engage in drug trafficking. It described a controlled buy as:
[A] purchase of illegal drugs that is characterized as follows:
police give specific directions to the CI; police search the CI
prior to him/her meeting with the suspect(s) to obtain a
controlled substance to ensure that the CI does not possess
any controlled substances or other contraband; pre-
recorded currency is provided to the CI to purchase the
controlled substance; visual surveillance of the CI is
maintained preceding and following the meeting with the
suspect(s) to obtained the controlled substance to the
extent possible; arrangements are made by police to meet
the CI at a specified location following the meeting with the
suspect(s); police retrieve any suspected controlled
substance from the CI that was obtained from the
suspect(s); police search the CI to ensure that he/she did
not possess any additional controlled substances or other
contraband; and a field-test of the suspected controlled
substance is performed.
Affidavit of Probable Cause at 6. Detective DiBattista stated these protocols
were followed in the controlled buys outlined in the Affidavit at issue in this
case. Id.
The Affidavit then outlined the investigation conducted prior to applying
for the search warrant.
Detective DiBattista met with a CI who advised Detective DiBattista that
he or she had purchased cocaine from multiple people inside the Union Street
house over a period of several years.
Between the dates of March 6, 2016 and March 8, 2016, Detective
DiBattista met with the CI to conduct a controlled buy at the Union Street
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house. Detective DiBattista provided $40 in pre-recorded currency. While
under surveillance, the CI entered the Union Street house. Upon exiting he or
she met Detective DiBattista at a pre-determined location. The CI provided
two small plastic bags containing a white rock like substance suspected to be
crack cocaine, which he or she had purchased at the Union Street house in
exchange for the pre-recorded currency. The suspected crack field tested
positive for crack cocaine.
Between March 9, 2016 and March 11, 2016, Detective DiBattista again
met with the CI for a controlled buy. Detective DiBattista provided the CI with
$20 in pre-recorded buy money. While under surveillance, the CI arrived at
the Union Street house and entered. When he or she exited, the CI met
Detective DiBattista at a predetermined location. The CI turned over a small
sealed plastic bag containing suspected crack cocaine. The substance field
tested positive for crack cocaine.
On March 16, 2016, Detective DiBattista again met with the CI to
conduct a controlled buy. Detective DiBattista provided the CI with $20.00 in
pre-recorded money. While under surveillance, the CI went to the Union Street
house and entered. After exiting, the CI met Detective DiBattista at a
predetermined location, where he or she turned over a bag of suspected
cocaine. The substance field tested positive for cocaine.
The CI informed Detective DiBattista that he or she purchased the
controlled substances from a different person for each controlled buy.
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Based on the information provided in the Affidavit, the magistrate
district judge granted the application for a search warrant.
The police executed the warrant on March 18, 2016. In the front third-
floor bedroom, the police recovered a 9 mm handgun with an obliterated serial
number, a plastic bag of suspected crack cocaine, small plastic baggies, digital
scales, latex gloves, and a plate with a razor blade and cocaine residue. N.T.,
8/23/17, at 56, 64, 66, 97, 117, 130. The police also recovered prescription
medication bottles with Richardson’s name and his leather jacket from the
front bedroom, id. at 62, 95, and found Richardson’s wife sleeping in the
bedroom. Id. at 184. The police found Richardson and his father sleeping in
the rear third-floor bedroom. Id. at 53. Richardson claimed that he only
sometimes stayed at the house. Id. at 155-56.
The police arrested Richardson and charged him with the above-
referenced offenses. The charges were based on the narcotics, paraphernalia,
and firearm found while executing the search warrant. Information, filed
6/27/16. Richardson filed a motion to suppress, claiming the search warrant
was not supported by probable cause. He further filed a motion to disclose the
identity of the CI. The trial court denied the motions.
The trial court conducted a jury trial, at which the Commonwealth
presented multiple exhibits and presented the testimony of Detective
DiBattista, including his testimony as to the execution of the search warrant.
A jury convicted Richardson of PWID, possession of a controlled substance,
and possession of a drug paraphernalia and the trial court found Richardson
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guilty of possession of firearm by prohibited person. The trial court sentenced
Richardson to 78 to 168 month’s incarceration and one year probation.
Richardson filed a timely notice of appeal.
Richardson raises the following issues:
I. Whether the trial court erred by denying [Richardson’s]
motion to compel identity of the Commonwealth’s
confidential informant?
II. Whether the trial court erred by denying [Richardson’s]
motion to suppress the search warrant and all evidence
gained as a result of such search warrant?
Richardson’s Br. at 4.
Richardson argues that the name of the CI should have been provided
to him. He claims the CI was an eyewitness and the CI could have exonerating
evidence because he or she could testify to whether Richardson sold the drugs
to the CI.
We review a trial court’s order denying or granting a motion for
disclosure of an informant’s identity for an abuse of discretion.
Commonwealth v. Withrow, 932 A.2d 138, 140 (Pa.Super. 2007).
Pennsylvania Rule of Criminal Procedure 573 provides the trial court with
the discretion to require the Commonwealth to reveal the names and
addresses of all eyewitnesses, including confidential informants, where a
defendant makes a showing of material need and reasonableness:
(a) In all court cases, except as otherwise provided in Rule
230 (Disclosure of Testimony Before Investigating Grand
Jury), if the defendant files a motion for pretrial discovery,
the court may order the Commonwealth to allow the
defendant’s attorney to inspect and copy or photograph any
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of the following requested items, upon a showing that they
are material to the preparation of the defense, and that the
request is reasonable:
(i) the names and addresses of eyewitnesses....
Pa.R.Crim.P. 573(B)(2)(a)(i).
Where the informant was not an eyewitness, “the extent of the court’s
discretion is specified more broadly by case law.” Withrow, 932 A.2d at 140.
We have stated there is no fixed rule with respect to when disclosure of a
confidential informant’s identity is justified, noting:
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.
Id. (quoting Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa.Super.
2001)).
Further, “regardless of whether the informant was an eyewitness to the
transaction for which the defendant was charged, the Commonwealth retains
a qualified privilege not to disclose an informant’s identity.” Id. at 140-41.
“To overcome that privilege, the defendant must show that his request for
disclosure is reasonable and that the information sought to be obtained
through disclosure is material to the defense.” Id. at 140. “[T]he defendant
need not predict exactly what the informant will say,” but “must demonstrate
at least a reasonable possibility the informant’s testimony would exonerate
him.” Id. Only if the defendant shows the information is material and the
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request reasonable will the trial court be “called upon to determine whether
the information is to be revealed.” Id. (citing Belenky, 777 A.2d at 488).
The Pennsylvania Supreme Court has found that where the charges are
based on one drug transaction, the only eye witnesses to the transaction are
a police officer and the CI, and the defendant raises a misidentification
defense, the defendant has established the materiality of the CI’s testimony.
See, e.g., Commonwealth v. Roebuck, 681 A.2d 1279, 1284-85 (Pa.
1996).
In contrast, where the charges are based on evidence discovered during
the execution of a search warrant, and not based on a drug transaction, courts
have found the defendant failed to establish the materiality prong. For
example, in Withrow, this Court found that the trial court erred in granting
the motion to disclose the identity of the CI who had witnessed the defendant
and a police officer engage in a drug transaction because the drug transaction
was not the basis of the charges. 932 A.2d at 141, 143. There, the charges
were based on the multiple packets of cocaine and heroin discovered while
executing a search warrant in the home. Id. at 142. The court noted that the
“CI was not an eye witness to the offense with which the defendant was
charged.” Id. at 141. Courts have reasoned that where a defendant is charged
with offenses resulting from a search, and the application of the search
warrant did not depend on the identity of the person who sold the drugs, then,
regardless of whether the defendant sold the drugs, the search of the
residence would have occurred. Id. (quoting Belenky, 777 A.2d at 489).
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Further, courts have noted that CIs are not present at the time a warrant is
executed and “could add nothing to the question of identity [at the execution
of the warrant], which is the only identity relevant to guilt.” Id. at 142
(quoting Belenky, 777 A.2d at 489).
Here, the trial court denied the motion to disclose the identity of the CI
because Richardson failed to demonstrate the identity of the CI was material
to his defense, reasonable, and in the interests of justice. 1925(a) Op. at 4.
Richardson claimed the CI could provide information related to Richardson’s
defense of constructive possession, that is, the house was not his permanent
residence, and provide testimony that the CI had not seen Richardson at the
house. Id. at 5. The trial court noted that there were a number of possible
witnesses that could testify as to where Richardson resided. Id. The court
concluded the CI “had no information to offer regarding the facts relied upon
by the Commonwealth in tying [Richardson] to the contraband found in the
third floor front bedroom, including but not limited to a firearm and cocaine,
which formed the basis of the charges against Richardson.” Id. at 5.
This was not an abuse of discretion. The charges were based on the
contraband discovered during the execution of the search, not the transactions
with the CI. The CI’s testimony was not material to any charge or defense.
See Withrow, 932 A.2d at 141, 143.
Richardson next claims the search warrant was not supported by
probable cause, arguing the CI’s reliability is suspect, as the affidavit does not
contain details as to how the CI had been deemed reliable.
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Here, the judge who presided over the trial had retired prior to the filing
of Richardson’s concise statement of issues on appeal and therefore a different
judge issued the Rule 1925(a) opinion. In the Rule 1925(a) opinion, the court
found that it was unable to address Richardson’s claim that the court erred in
denying his motion to suppress because the certified record did not contain
an order addressing Richardson’s motion or a transcript of any hearing on the
motion. 1925(a) Op. at 6. The court concluded it was unable to discern the
basis of the prior court’s decision. Id.
We conclude Richardson has waived his challenge to the denial of the
motion to suppress. The certified record does not contain an order on the
motion to suppress or any transcript of the proceedings. Further, the docket
does not contain an order, and the docket lists notes of testimony filed for the
trial and for other hearings, but not for a hearing on the motion to suppress.
Because the certified record does not contain the order or the notes of
testimony, we conclude this issue is waived. Commonwealth v. Martz, 926
A.2d 514, 525 (Pa.Super. 2007) (finding where “[a]ppellant is remiss in
fulfilling the duty to provide a record which is sufficient to permit meaningful
appellate review as is the case here, the issue raised challenging the
sufficiency of the evidence will be deemed waived”).
Further, even if not waived, we would conclude that the search warrant
was supported by probable cause.
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
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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. 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.
...
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[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.
Jones, 988 A.2d at 655 (quoting Commonwealth v. Torres, 764 A.2d 532,
537–38, 540 (Pa. 2001)) (some alterations in original).
In Commonwealth v. Clark, the Pennsylvania Supreme Court found
“probable cause to support the search warrant existed, even though the
affidavit contained no explicit recitation whether the CI had previously
supplied information leading to arrests, or whether the CI had previously been
inside the subject residence, or whether the Appellee had told the CI there
were drugs in the residence.” 28 A.3d 1284, 1292 (Pa. 2011). There, the court
concluded probable cause existed “because the information provided by the
CI, namely that [the defendant] was packaging and distributing cocaine out
of his residence, was corroborated by independent police investigation.” Id.
There, “the police observed Appellee depart his residence, go directly to the
site of a pre-arranged controlled buy, exchange cocaine for money, and return
directly to his residence,” and the court concluded “[a] common sense, non-
technical reading of these facts properly established a fair probability that
contraband or evidence of a crime would be found in the residence.” Id.
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Here, the trial court did not abuse its discretion in denying the motion
to suppress.2 The Affidavit contained information supporting the probable
cause determination. In the Affidavit, Detective DiBattista described controlled
buys in general and the three controlled buys conducted in this case, during
which the CI purchased controlled substances from the Union Street House.
The Affidavit detailed that for each controlled buy the police officers searched
the CI prior to the buy, provided the CI with pre-recorded money, and
conducted surveillance. Further, after each controlled buy, the CI produced
controlled substances purchased from the Union Street house. Such
information supported the reliability of the CI and provided probable cause to
believe “that contraband or evidence of a crime will be found in” the Union
Street house.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/19
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2As the evidence obtained from execution of the search warrant was admitted
at trial, it is clear the court denied the motion. Further, although we do not
know the basis of the trial court’s decision, we may affirm the trial court on
any basis. See In re Jacobs, 15 A.3d 509, 509 n.1 (Pa. Super. 2011) (“[This
Court is] not bound by the rationale of the trial court, and may affirm on any
basis.”).
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