J-A25007-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TROY SHAWN HOWARD : : Appellant : No. 54 WDA 2023
Appeal from the Judgment of Sentence Entered May 2, 2022 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0001280-2020
BEFORE: BOWES, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 12, 2024
Troy Shawn Howard appeals from the judgment of sentence of five to
ten years of incarceration following his convictions for, inter alia, tampering
with physical evidence and possession with intent to deliver a controlled
substance (“PWID”). We affirm.
In the early morning of March 5, 2020, law enforcement personnel
executed a search warrant at 1013 Kenneth Avenue, Apartment B, New
Kensington, where, pursuant to a tip from a confidential informant (“CI”) and
their own surveillance, they knew that Appellant had previously dealt drugs.
The search was conducted pursuant to the following pertinent provisions of
the Affidavit of Probable Cause:
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* Retired Senior Judge assigned to the Superior Court. J-A25007-23
5. The CI advised that he/she is able to purchase crack cocaine from a male they identified as “Slim” at 1013 Kenneth Avenue Apartment B. The CI described “Slim”as a black male. The CI said that “Slim” utilizes 1013 Kenneth Avenue Apartment B, New Kensington, Westmoreland County, Pennsylvania, 15068. The CI advised that “Slim” will sell the crack cocaine from 1013 Kenneth Avenue Apartment B in the City of New Kensington.
6. The CI has been proven reliable for the Pennsylvania Office of Attorney General and the City of New Kensington Police Department. The information the CI provided regarding this investigation has been corroborated through law enforcement intelligence and physical surveillance. The CI also provided information to law enforcement officers, which were against the CI’s own penal interests. In addition, during this investigation, the CI has made two successful controlled purchases of crack cocaine from “Slim.”
....
9. The CI was driven near 1013 Kenneth Avenue Apt. B by an undercover officer. The CI was observed walking to a small window on the north side of the building and handing a quantity of money through the window in exchange for a quantity of crack cocaine. Shortly after that, the CI was observed returning to the detail vehicle. The CI handed over a quantity of crack cocaine to the undercover officer. The CI stated that they walked to the side window of 1013 Kenneth Avenue Apt. B and gave “Slim” official [Attorney General Bureau of Narcotics Investigation] funds in exchange for crack cocaine. The crack cocaine was field tested and showed a positive result for cocaine. The CI was kept under constant physical surveillance by detail officers throughout the detail.
12. Surveillance had been conducted on this residence in the past. Officers observed numerous people walking to the window on the north side of the residence and making hand to hand transactions with the occupant inside.
Affidavit of Probable Cause, 3/2/20 (cleaned up).
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After police knocked and announced their presence, Patrol Sergeant
David Coleman saw someone open a window at the back of the residence and
discard a small box. When the box hit the ground, a bag and a pair of blue
latex gloves fell out. Detective Sergeant Samuel Long observed multiple other
small bags inside the box containing what he believed to be crack cocaine and
heroin.1 Upon entering Appellant’s residence, officers discovered Appellant
seated on a toilet in the bathroom where he had thrown the box of suspected
drugs from the window and took him into custody. Law enforcement
confirmed that no other individuals were in the residence aside from Appellant.
Thereafter, investigators searched the apartment and located large quantities
of controlled substances and drug-distribution paraphernalia, such as a digital
scale, rubber gloves, and baggies.
Appellant was charged with several crimes and subsequently filed an
omnibus pretrial motion challenging the legality of the search of his
apartment. Therein, Appellant argued that the search warrant was issued
without sufficient probable cause or indication of the CI’s reliability and that
the evidence seized should therefore be suppressed. See Omnibus Pretrial
Motion, 12/23/20, at 2-4. Following a hearing and briefing, the trial court
denied the motion, and the case proceeded to trial. A jury convicted Appellant
of the above offenses and he was sentenced as indicated above. This timely
1 A later test confirmed that the bags contained fentanyl, a Schedule II controlled substance. See Trial Court Opinion, 3/6/23, at 7; 35 P.S. § 780- 104(2)(ii)(6).
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appeal followed. The trial court ordered Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and
Appellant filed a statement. Thereafter, the trial court issued a Rule 1925(a)
opinion.
Appellant proffers the following questions for our review:
1. A search warrant issued for a residence identified as “1013 Kenneth Avenue, Apartment B, New Kensington.” The trial court affirmed the magistrate’s finding of probable cause to support the warrant, concluding there was sufficient indicia of reliability surrounding the confidential informant and sufficient facts establishing a nexus of criminal activity to “Apartment B,” specifically. So finding, did the trial court rely upon presumptions existing outside the four corners of the affidavit of probable cause and, generally, err by not granting suppression?
2. Was there sufficient evidence to convict Appellant for tampering with evidence, where the subject evidence was discarded in plain view of law enforcement?
3. The Commonwealth’s drug-trafficking expert opined that “whoever possessed [the controlled substances] possessed it with the intent to deliver it.” Did the Commonwealth adduce sufficient evidence to prove, beyond a reasonable doubt, that it was Appellant’s specific intent to deliver the controlled substances rather than a third party’s intent?
Appellant’s brief at 5.
Appellant’s first claim challenges the trial court’s denial of his
suppression motion, which we consider pursuant to the following legal
principles:
An appellate court’s standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court’s factual findings are supported by the record and whether the legal conclusions drawn from those
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facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court’s factual findings are supported by the record, the appellate court is bound by those findings and may reverse only if the court’s legal conclusions are erroneous. Where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court’s legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to plenary review.
Commonwealth v. Jones, 121 A.3d 524, 526–27 (Pa.Super. 2015) (cleaned
up).
Appellant contends that the suppression court erred in upholding the
magistrate’s ruling that probable cause existed to issue a search warrant for
Appellant’s residence. See Appellant’s brief at 24. We observe that the
suitability of a “grant of a search warrant to an affiant must be judged solely
upon the information before the district justice at the time of its issuance.
Consequently, the magistrate’s decision must be based on the four corners of
the affidavit in support of the issuance of the warrant.” Commonwealth v.
Lloyd, 948 A.3d 875, 880 (Pa.Super. 2008). Our Supreme Court has further
held that:
Probable cause is determined by the totality of the circumstances. In determining whether probable cause exists to support a search warrant, the issuing authority is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit there is a fair probability that contraband or evidence of a crime will be found in a particular place. A court reviewing the underlying probable cause determination must view the information offered to establish probable cause in a common-
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sense, non-technical manner. Probable cause is based on a probability, not a prima facie case of criminal activity.
Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021) (cleaned up).
The High Court has made it clear that “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. Jones, 988 A.2d 649, 655 (Pa. 2010) (cleaned up). We
have noted that probable cause exists based upon an informant’s tip “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. Manuel, 194 A.3d 1076, 1083 (Pa.Super. 2018) (en banc) (emphases in
original).
Appellant argues that the trial court erred in denying Appellant’s motion
to suppress. See Appellant’s brief at 23. He maintains that “there was not a
sufficient nexus between 1013 Kenneth Avenue, Apartment B, and the
observed conduct supporting the warrant application.” Id. at 34. In so
claiming, he contends that the trial court considered evidence outside the
affidavit concerning the identification of the premises. Id. at 33-34.
However, the trial court found that there was a sufficient nexus, which
is supported by the certified record. The trial court stated that law
enforcement had set up multiple controlled buys with the CI, who knew the
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address where he could purchase drugs. See Opinion and Order, 10/12/21,
at 2. Moreover, police had undertaken surveillance of the residence and
observed conduct similar to when the CI bought drugs. Id. at 3. The police
also knew that the apartment window where the transactions occurred was
Appellant’s window. Id. at 3. Hence, the CI’s pronouncement that crack
cocaine could be purchased at Appellant’s address was consistent with
surveillance undertaken by officers. See id. Therefore, the trial court
concluded that Appellant’s contentions are inapt, as the affiant provided
appropriate information concerning the location of the premises, and law
enforcement also observed drug dealing at the residence in question similar
to that described by the CI and undertaken during the controlled buys. Id. at
10-11. The trial court’s findings are supported by the affidavit, which detailed
the controlled buys carried out by the CI. See Affidavit of Probable Cause,
supra at ¶ 6, 9. Furthermore, the affidavit confirmed the trial court’s findings
on the surveillance conducted by law enforcement. Id. at ¶ 9, 12. Thus, a
sufficient nexus existed for the trial court to determine that the magisterial
district judge did not erroneously issue a search warrant for 1013 Kenneth
Avenue, Apartment B. In so doing, the trial court did not consider material
outside the affidavit, as its conclusions were based on material averred by the
affiant.
Appellant further suggests that the CI in the case sub judice was not
shown to be reliable. See Appellant’s brief at 25. Specifically, Appellant
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argues that the affidavit contained no concrete information detailing the
dependability of the CI and that the affiant only made “bald assertions
concerning the reliability of the CI” and did not elaborate upon details of the
CI’s track record of providing information that led to arrests. Id.
The trial court, however, determined that the CI reliably executed
controlled buys, as police officers observed the CI hand money through a
window of the residence in question and return with crack cocaine and without
the marked funds that law enforcement gave him for the purchase. See
Opinion and Order, 10/12/21, at 2-3. Moreover, this Court has held that
detailed descriptions concerning past arrests for which the CI was responsible
are not required and, as such, Appellant’s argument is not persuasive. See
Commonwealth v. Dukeman, 917 A.2d 338, 341–42 (Pa.Super. 2007)
(stating that “the affidavit need not contain the names, dates, or other
information concerning prior arrests or convictions” (cleaned up)). Rather,
the affidavit appropriately noted that the CI previously provided law
enforcement with information that resulted in arrests. See id. (holding that
“[t]he affidavit must, however, at the very least, contain an averment stating
the customary phrase that the informant has provided information which has
in the past resulted in arrests or convictions” (cleaned up)). Instantly, the
affidavit contained a similar phrase. See Affidavit of Probable Cause, supra,
at ¶ 6.
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Based on the above, the magistrate had a substantial basis for his
decision to issue the search warrant, and the trial court did not err in upholding
that decision. See Commonwealth v. Lyons, 79 A.3d 1053, 1064 (Pa.
2021) (explaining that “[i]n 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”). Accordingly, for the foregoing reasons,
the suppression court did not err in denying Appellant’s suppression motion.
Appellant’s second and third issues concern the sufficiency of the
evidence for his convictions for tampering with evidence and PWID,
respectively. We review a challenge to the sufficiency of the evidence under
the following guidelines:
[When] 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 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. Fitzpatrick, 159 A.3d 562, 567 (Pa.Super. 2017)
(citation omitted).
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Tampering with physical evidence is defined at § 4910 of the Crimes
Code, in pertinent part, as follows: “A person commits a misdemeanor of the
second degree if, believing that an official proceeding or investigation is
pending or about to be instituted, he: (1) alters, destroys, conceals or
removes any record, document or thing with intent to impair its verity or
availability in such proceeding or investigation[.]” 18 Pa.C.S. § 4910(1). We
have held that the Commonwealth must prove three elements to establish the
offense of tampering with evidence:
(1) the defendant knew that an official proceeding or investigation was pending (or about to be instituted); (2) the defendant altered, destroyed, concealed, or removed an item; and (3) the defendant did so with the intent to impair the verity or availability of the item to the proceeding or investigation.
Commonwealth v. Toomer, 159 A.3d 956, 961 (Pa.Super. 2017).
Appellant argues that he is entitled to relief because the Commonwealth
presented insufficient evidence to convict him of this offense since he took no
action to destroy the evidence in question. See Appellant’s brief at 36. He
contends that, instead of, e.g., disposing of the drugs down the toilet, the
sink, or the shower to destroy them, he discarded the drugs out of a window
in plain view of law enforcement. Id. Hence, Appellant avers that because
he did not attempt to destroy the evidence or impair its availability to the
police, he cannot be convicted of tampering with evidence. See Appellant’s
brief at 36.
In so suggesting, Appellant asserts that the case at bar is analogous to
Commonwealth v. Delgado, 679 A.2d 223 (Pa. 1996). There, the defendant
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fled police after making a controlled buy of narcotics and, in the process of
fleeing, discarded the drugs in plain view of pursuing police. Id. at 224. Our
Supreme Court held that Delgado did not have the necessary intent to sustain
his conviction of tampering with evidence, as he did not attempt to destroy or
conceal evidence. Id. at 225. Instead, the High Court opined that Delgado
merely abandoned the drugs in full view of law enforcement. Id.
We are, however, not convinced by Appellant’s contentions. Our
Supreme Court ruled that Delgado could not be found guilty because he
abandoned the drugs in plain view of a pursuing officer whom Delgado knew
was behind him. Id. However, in the instant case, Detective Sergeant Long
and other law enforcement personnel were not pursuing Appellant. Rather,
they were stationary in the backyard when Appellant lobbed the drugs from
the window. Moreover, there was no evidence introduced at trial indicating
Appellant’s awareness of the police presence in the backyard area where the
discarded drugs landed. The officers who announced themselves came
through the front door, and the search warrant was executed in the early
morning hours when there was little light. Thus, Appellant’s reliance upon
Delgado is inapt.
This Court addressed a similar issue to the case sub judice in
Commonwealth v. Govens, 632 A.2d 1316 (Pa.Super. 1993). There, we
affirmed Govens’s judgment of sentence for tampering with evidence when
law enforcement entered Appellant’s residence and found him discarding
drugs in the toilet. Id. at 1328-1329 (stating that “[t]he trier of fact could
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reasonably infer that appellant had become aware that his drug dealing was
under investigation when he heard the police knock at his door and announce
their presence. Appellant’s reaction . . . readily confirms his awareness of a
police investigation and his intent to impede the same.”).
Although Appellant argues that Govens is inapplicable to his case, as
he did not attempt to flush the drugs down the toilet, we are unpersuaded.
Instantly, the factfinder could infer that Appellant was aware that his illegal
activities had become known to the police when they knocked at the door and
announced their presence. Thereafter, Appellant threw the drugs from the
residence in an attempt to impair the availability of that evidence to law
enforcement. While Appellant contends that he did not impede the police
investigation or try to make unavailable the evidence, it strains credulity to
believe that Appellant discarded the drugs from the bathroom window for any
reason other than to keep that evidence from the law enforcement personnel
whom he knew were entering the residence.
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, Appellant’s conviction is supported by sufficient evidence.
Appellant, after hearing the police knock and announce their presence, threw
a box containing drugs out of a window in an effort to prevent law enforcement
from seizing this evidence and using it in their investigation of his illicit
activities. Therefore, he is not entitled to relief.
In a similar vein, Appellant contends that the Commonwealth presented
insufficient evidence to convict him of PWID. See Appellant’s brief at 38. To
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sustain a conviction for PWID the Commonwealth must prove that Appellant
possessed the controlled substance and intended to deliver it. See 35 P.S. §
780–113(a)(30). Determining whether a person possessed drugs with an
intent to deliver is based upon the totality of circumstances. Commonwealth
v. Ratsamy, 934 A.2d 1233 (Pa. 2007). Furthermore, our Supreme Court
has opined that “possession with intent to deliver can be inferred from the
quantity of the drugs possessed and other surrounding circumstances, such
as lack of paraphernalia for consumption.” Id. at 1238 (cleaned up). “Factors
to consider in determining whether the drugs were possessed with the intent
to deliver include the particular method of packaging, the form of the drugs,
and the behavior of the Appellant.” Commonwealth v. Kirkland, 831 A.2d
607, 610 (Pa.Super. 2003).
Appellant asserts that the Commonwealth did not sufficiently prove that
he possessed the drugs with the intent to deliver them. See Appellant’s brief
at 39. Specifically, Appellant contends that the “Commonwealth never showed
his specific intent to possess the drugs and deliver them.” Id. (emphases
in original). However, we are unconvinced by Appellant’s arguments.
Concerning Appellant’s possession of the drugs, Appellant was the only
person law enforcement officials found in the residence, enabling the
factfinder to conclude that all recovered drugs belonged to him. While, at
trial, Appellant contended that the apartment was leased to another person,
there was no indicia that anyone other than Appellant resided in the
apartment. Furthermore, police discovered Appellant seated on a toilet in the
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bathroom where, moments earlier, officers stationed outside observed a box
containing drugs being flung from the window. Hence, the Commonwealth
adduced sufficient evidence to allow the jury to conclude beyond a reasonable
doubt that Appellant possessed all drugs that were seized.
Regarding Appellant’s intent to deliver, expert testimony introduced at
trial established that Appellant did not possess the drugs for his personal use.
See Ratsamy, supra at 1237 (stating that “[e]xpert opinion testimony is
admissible concerning whether the facts surrounding the possession of
controlled substances are consistent with an intent to deliver rather than with
an intent to possess it for personal use.”). Detective Anthony Marcocci, an
expert in the fields of traffic and sale of drugs, dealer practices, and drug
usage, testified that the amount of drugs recovered was too great for
Appellant’s personal use. See N.T. Trial, 2/14/22, at 210, 213. Specifically,
the detective observed that the quantities of crack cocaine and fentanyl
demonstrated that the drugs were “possessed . . . with the intent to
distribute,” as a single user “could not ingest” the amounts found at the
residence.2 Id. at 211-213. Moreover, Detective Marcocci noted that law
enforcement discovered no drug paraphernalia such as needles or syringes in
the residence, indicating that the drugs were not for Appellant’s personal ____________________________________________
2 Appellant possessed fifty-nine grams of crack cocaine, which Detective Marcocci stated was far more than a sole individual could use. See N.T. Trial, 2/14/22, at 211. The detective also noted that Appellant had 452 baggies of fentanyl. Coupled with the packaging of the fentanyl, Detective Marcocci testified that the quantity that Appellant possessed demonstrated an intent to deliver. See id. at 212-213.
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consumption. Id. at 213. Indeed, numerous items found in Appellant’s
apartment, i.e., a digital scale, baggies, and rubber gloves, suggested that
Appellant intended to individually package and sell the drugs, not to ingest
them personally. See id. at 212. For the foregoing reasons, Detective
Marcocci concluded to a reasonable degree of professional certainty that the
drugs Appellant had were not for personal use and were possessed with the
intent to deliver. See id.
Accordingly, viewing the evidence in the light most favorable to the
Commonwealth as the verdict winner, the trial court did not err in upholding
Appellant’s conviction for PWID. Phrased differently, the Commonwealth’s
evidence was neither so unreliable nor so weak and inconclusive as to make
the jury verdict pure conjecture. See Commonwealth v. Gause, 164 A.3d
532, 540 (Pa.Super. 2017) (“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”).
In sum, none of Appellant’s three challenges warrant relief and, as such,
we affirm his judgment of sentence.
Judgment of sentence affirmed.
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DATE: 2/12/2024
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