Com. v. Cameron

• Decision Date: 06 September 1995
• Parties: COMMONWEALTH of Pennsylvania v. Ronald CAMERON, Appellant.
• Court: Pennsylvania Superior Court

Page 1364

664 A.2d 1364

445 Pa.Super. 165

COMMONWEALTH of Pennsylvania v. Ronald CAMERON, Appellant.

Superior Court of Pennsylvania.

Argued June 8, 1995.

Filed Sept. 6, 1995.

Enid W. Harris, Wilkes-Barre, for appellant.

William P. O'Malley, Assistant District Attorney, Scranton, for Commonwealth, appellee.

Before CAVANAUGH, McEWEN and TAMILIA, JJ.

TAMILIA, Judge:

Ronald Cameron appeals from the October 19, 1994, ten (10) to twenty (20) year judgment of sentence imposed after a jury found him guilty of possession of a controlled substance, ¹ delivery of a controlled substance ² and conspiracy ³ to possess with the intent to deliver cocaine. Appellant was arrested and his apartment searched on the basis of information provided by two confidential informants and a corroborating surveillance team. Identifiable currency used in controlled purchases, a drug scale and cocaine were seized.

Appellant raises a number of issues for this Court's consideration, beginning with the argument the Court of Common Pleas of Lackawanna County did not have jurisdiction to commence his trial on November 8, 1993 because his appeal from the July 14, 1993 Order denying his motion to suppress was, at the start of trial, pending in this Court. Although the Superior Court, subsequent to trial, granted the Commonwealth's motion to quash, appellant avers because the Commonwealth had filed the motion to quash and this Court had accepted briefs and scheduled oral argument, there was every indication his motion to suppress would be considered on its merits. Trial, therefore, should have been continued pending the outcome of his appeal.

The resolution of appellant's argument is controlled by Pa.R.A.P. 1701(b)(6), which states an appeal from an interlocutory Order does not preclude the trial court from proceeding with trial. The fact the Commonwealth had challenged appellant's motion by filing a motion to quash does not alter the rule's import.

Next, appellant argues the evidence seized from 718 Prescott Avenue, Apartment 5, out of which defendant allegedly sold cocaine, should have been suppressed because the search warrant was unsupported by sufficient probable cause. Appellant contends misstatements in the affidavit of probable cause concerning the reliability of the confidential informants, defendant's address and criminal record, and the officers' failure to exert control over a controlled buy, rendered the warrant invalid.

The standard for determining whether probable cause exists for the issuance of a search warrant is the "totality of the circumstances test" as set forth below:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all 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. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing] that probable cause existed."

Commonwealth v. Karns, 389 Pa.Super. 58, 566 A.2d 615 (1989), quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). However, if a warrant is based upon an affidavit which contains deliberate or knowing misstatements of material fact, the search warrant must be rendered invalid. Commonwealth v. Clark, 412 Pa.Super. 92, 602 A.2d 1323 (1992). In deciding whether a misstatement is material, the test is not whether the statement strengthens the application for the search warrant, but rather whether it is essential to it. Commonwealth v. Yucknevage, 257 Pa.Super. 19, 390 A.2d 225 (1978).

The suppression court found the affidavit of probable cause contained sufficient evidence upon which to issue the search warrant. The affiant, Detective Speicher of the Scranton Lackawanna County Task Force, was assured of one of the two confidential informant's reliability, i.e. information previously provided led to arrests and convictions by Agent Hart of the Office of the Attorney General of Narcotics Investigation. The confidential informant told Hart an individual named Cameron was selling cocaine out of the 718 address and, in fact, executed a controlled purchase with Hart's assistance. A few weeks later, a second reliable confidential informant also informed Speicher "Ron Cameron" was dealing cocaine from Apartment 5 of 718 Prescott. This confidential informant and Speicher executed a controlled buy through a third party, or an "unwitting informant," from "Mike" at the 718 address. The unwitting informant told Speicher's confidential informant the cocaine purchased was an "eight ball" of "Ron Cameron's stuff." Confidential informant number two's reliability was attested to by Pennsylvania Trooper Bachman, a fact not included in the affidavit of probable cause. In further support of the request for a search warrant, Affiant Speicher averred he had also spoken with Parole Agent Golenberke who informed him Apartment 5 at 718 Prescott Avenue was occupied by Michael Morrison and Ronald Cameron. A surveillance team dispatched the same evening of the second buy confirmed pedestrian and vehicular traffic coming and going from the aforestated address, the visitors remaining only briefly before leaving.

We find this information, standing alone, provided a sufficient basis from which the magistrate could have issued a search warrant. The fact the affiant failed to inform the issuing magistrate he had no personal knowledge of confidential informant number two's reliability, but relied on information provided by Trooper Bachman, does not constitute a misstatement of material fact or invalidate the confidential informant's reliability. Likewise, Speicher's averment, premised on information provided by Agent Golenberke, that appellant resided at the 718 address, contrary to appellant's attestation, was not a deliberate misstatement of material fact and, in light of the purchases made and traffic observed, was non-essential to the issuance of the warrant. Based upon the totality of the circumstances with which the magistrate was presented, none of the alleged misstatements or omissions argued by appellant was essential to the finding of probable cause. We find sufficient probable cause existed upon which the magistrate could issue the search warrant.

Appellant also argues the evidence seized should have been suppressed because the same warrant was executed twice on March 18, 1992, without presenting the magistrate with new or additional probable cause. Appellant alleges at 9:25 a.m. on March 18, 1992, 718 Prescott Avenue, Apartment 5, was searched and resident Michael Morrison was arrested. Later that same day, appellant argues, the same warrant was impermissibly used to search and arrest him. In support of this argument, appellant relies on Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976), in which a warrant was executed on defendant's person, business and home address and, the following day, a second warrant was secured to search more thoroughly defendant's bedroom. Bruno argued the second search was illegal because the probable cause to search his room for the murder weapon was exhausted by the first search. The Bruno court disagreed, however, reasoning the police had presented sufficient additional information to support a probable cause showing contraband remained despite the initial search. Based on Bruno, appellant herein argues a second warrant was necessary in order to "seize" him later in the afternoon, after the initial search of 718 Prescott.

We note with disfavor that without citations to the record, it is extremely difficult for this Court to make sense of appellant's argument and makes the resolution of this issue an even more tedious task. However, based on our review of the record, we find Bruno to be distinguishable from the factual scenario with which we are faced. Mr. Morrison and the 718 address were searched at approximately 9:30 a.m. on March 18th. Appellant was not present at that time. Later that same afternoon, appellant returned to the 718 address and, because the warrant issued had also authorized the search of Cameron's person, officers legitimately executed the warrant as it pertained to appellant. Also, the record indicates any further search of the premises was consensual. Appellant has provided us with no basis upon which to find reversible error.

Also related to the March 18, 1992 afternoon execution of the warrant, appellant argues officials used "trickery" to obtain entry to the premises, thereby violating the knock and announce...