J-S09020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYREE JOHNSON                              :
                                               :
                       Appellant               :   No. 2942 EDA 2018

      Appeal from the Judgment of Sentence Entered September 24, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0000327-2018


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                                 Filed: April 30, 2020

        Tyree Johnson appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his convictions for

possession of a controlled substance,1 possession with intent to deliver

(PWID),2 conspiracy—PWID,3 and possession of drug paraphernalia.4 Upon

careful review, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(16).

2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S.A. § 903; 35 P.S. § 780-113(a)(30).

4   35 P.S. § 780-113(a)(32).
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       Throughout the first week of November 2017, Officer Michelle Proctor of

the Philadelphia Police Department and her partner, Officer Beattie,5

conducted surveillance of a residence located at 1841 Morris Street in

Philadelphia, after receiving information that narcotics were being sold at that

address. N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 6-8.

Over the course of the week, the officers conducted five controlled drug

purchases at the house with the assistance of a confidential informant (CI)

who previously participated in numerous investigations that led to several

arrests and drug confiscations. Id. at 15-16.

       On November 1, 2017, the officers gave the CI twenty dollars of pre-

recorded buy money and instructed the CI to purchase marijuana at the

house. Id. at 8. From her vehicle, Officer Proctor observed the CI speak with

Johnson and an unknown male outside the house. Id. at 8-9, 20. Officer

Proctor watched the CI hand the buy money to the unknown male, who

handed the CI a clear bag containing a substance that was later tested and

confirmed to be marijuana. Id. at 8-10. Following the purchase, Johnson and

the unknown male entered the house. Id. at 9. The next day, November 2,

2017, the officers gave the CI another twenty dollars of pre-recorded buy

money and instructed the CI to purchase marijuana at the house again. Id.

at 10. Officer Proctor observed Johnson exit the house and speak with the CI,

____________________________________________


5 Only Officer Beattie’s surname and badge number (No. 9597) are provided
in the certified record. See N.T. Suppression/Motion to Compel Hearing/Trial,
7/10/18, at 8, 12, 63.

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who handed Johnson the buy money.         Id. Johnson returned inside, came

back out, and handed the CI a clear bag containing marijuana.        Id.   On

November 3, 2017, the officers gave the CI forty dollars of pre-recorded buy

money and instructed the CI to purchase crack cocaine and heroin at the

house. Id. Officer Proctor watched Johnson exit the house, speak with the

CI, and take the buy money from the CI. Id. at 10-11. Johnson went inside,

came back out, and gave the CI two red packets containing a substance later

tested and confirmed to be heroin, and one yellow packet containing a

substance later tested and confirmed to be crack cocaine. Id. On November

6, 2017, the officers gave the CI twenty dollars of pre-recorded buy money

and instructed the CI to purchase crack cocaine at the house again. Id. at

11. Officer Proctor saw Johnson on the front steps of the house and saw the

CI walk to and from the house, but did not witness any exchange because

traffic obstructed her view.   Id.   The CI returned to the officers with one

orange packet containing crack cocaine. Id. Officer Proctor then applied for

and obtained a search warrant for the house. Id.

     The following day, November 7, 2017, Officers Proctor and Beattie met

with the CI near the house, handed the CI twenty dollars of pre-recorded buy

money, and instructed the CI to purchase crack cocaine at the house a third

time. Id. at 12. The CI spoke with Quadir Rodison on the front steps of the

house and, as Rodison went inside, another man, Ramon Dixon, guarded the

doorway. Id. Rodison returned and, in exchange for the pre-recorded buy

money, handed the CI two clear packets containing crack cocaine before he

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and Dixon went back inside. Id. Officer Beattie relayed this information to

backup officers in the area and instructed them to execute the search warrant.

Id. at 13.     Johnson and his cousin Ramel6 entered the premises minutes

before the warrant was executed. Id. at 24, 74-76. As seven or more officers

dressed in full raid gear approached the house, they observed Rodison in the

window beside the front door, and attempted to “play it off initially” by walking

“a little bit past the first house.” Id. at 13, 33. Upon seeing the raid team

ascend the steps, however, Rodison ran away from the window, away from

the direction of the front door beside him. Id. at 13, 18, 31-33. Noticing

Rodison’s flight, the raid team used force to open the front door of the house

without knocking or announcing their identity and purpose.7 Id. at 13, 32.

       Inside the house, the raid team found Johnson, Rodison, Dixon, and

Ramel in the front bedroom of the second floor.        Id.   All four men were

detained, identified, and placed under arrest. Id. at 13. Police recovered two

packets of heroin from underneath the bed, $178 in pre-recorded buy money

from Dixon, and $63 in pre-recorded buy money from Rodison. Id. at 13-14.

From the middle bedroom, police recovered one clear bag containing 13

____________________________________________


6Officer Proctor and the Commonwealth refer to Ramel as “Ramel Robinson,”
N.T. Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13, 14, 18, 28,
but Johnson testified that Ramel’s last name is “Rodison.” Id. at 76.

7 In that moment, Officer Proctor was behind the house securing the rear exit,
and she did not personally observe Rodison flee from the window; she was
informed of Rodison’s flight via police surveillance radio immediately prior to
the raid team’s entry. N.T. Suppression/Motion to Compel Hearing/Trial,
7/10/18, at 28-33.

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orange packets of crack cocaine, one clear bag containing 15 grams of bulk

crack cocaine, six clear jars of marijuana, one tin can containing 98 packets

of heroin, and a scale. Id. at 14. From the rear bedroom, police recovered

five jars of marijuana, “one packet of [h]eroin stamped, El Chapo,” four brown

boxes of unused blue glassine bags (used for packaging heroin), Johnson’s

probation card, and a Pennsylvania ID bearing Johnson’s name and the

address of that house, 1841 Morris Street. Id. at 14-16.

      On July 10, 2018, the trial court held a hearing on Johnson’s motion to

suppress the evidence recovered from his house, during which Officer Proctor

testified to the facts above. See id. at 7-36. The trial court denied Johnson’s

motion.   See id. at 47-49.     The court proceeded to hear argument on

Johnson’s motion to compel the disclosure of the identity of the CI, which the

court also denied. See id. at 49-56. That same day, Johnson waived his right

to a jury trial and the Honorable William Mazzola found him guilty of the

above-stated crimes. See id. at 57-60, 84. On September 24, 2018, the

court sentenced Johnson to an aggregate term of one to three years’

imprisonment followed by five years of probation.      Johnson timely filed a

notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Johnson raises the following issues for our

review:

      1. [Whether t]he trial court erred by denying the [m]otion to
         [s]uppress where the police violated the knock and announce
         rule when entering [Johnson’s] premises without any exigent
         circumstances[?]


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      2. [Whether t]he trial court erred by denying the [m]otion to
         [c]ompel [d]isclosure of [CI] where the [CI’s] identity was
         material to the defense of mistaken identification, and the
         request was reasonable as disclosure would not jeopardize the
         [CI’]s safety[?]

      3. [Whether t]he evidence was insufficient to adjudicate
         [Johnson] guilty of [c]riminal [c]onspiracy where the
         Commonwealth failed to prove that [Johnson] made an
         agreement with others to distribute narcotics[?]

Brief of Appellant, at 11-14.

      Johnson first claims that the trial court erred by denying his motion to

suppress. He argues that when police forcibly entered his home, in violation

of the “knock and announce rule,” they violated his constitutional right to be

free from unreasonable searches and seizures. Brief of Appellant, at 10.

      In an appeal from the denial of a motion to suppress, our review is

“limited to determining whether the record supports the suppression court’s

factual findings and the legitimacy of the inferences and legal conclusions

drawn from those findings.” Commonwealth v. Hall, 199 A.3d 954, 959

(Pa. Super. 2018) (quotations and citations omitted).

      In making this determination, we may only consider the evidence
      of the prosecution’s witnesses and so much of the defense as,
      fairly read in the context of the record as a whole, remains
      uncontradicted. When the factual findings of the suppression
      court are supported by the evidence, we may reverse only if there
      is an error in the legal conclusions drawn from those factual
      findings.

Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998).

      Where, as here, 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

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      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 our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. Super. 2010).

      Pennsylvania Rule of Criminal Procedure 207 provides that law

enforcement officers are required to knock and announce their identity and

purpose to any occupant of the premises and wait a reasonable period of time

for a response before executing a search warrant, “unless exigent

circumstances require the officer’s immediate forcible entry.” Pa.R.Crim.P.

207(A)-(B). In Pennsylvania, we have recognized four exigent circumstances

that constitute “exceptions to the requirements of the knock and announce

rule.” Commonwealth v. Wagstaff, 911 A.2d 533, 536 (Pa. Super. 2006).

These exceptions are:     (1) the occupants remain silent after repeated

knocking and identification; (2) the police are virtually certain that the

occupants already know their purpose; (3) the police have reason to believe

that an announcement prior to entry would imperil their safety; and (4), the

police have reason to believe evidence is about to be destroyed. Id.; see

also Commonwealth v. Kane, 940 A.2d 483, 489 (Pa. Super. 2007) (“[I]n

order to invoke an exception, police must only possess a reasonable suspicion

that one of these grounds is present.”).

      To determine whether suppression is appropriate based on a violation

of the knock and announce rule, “police conduct must be examined in light of

the Fourth Amendment, which mandates that police [act] reasonabl[y].” Id.


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at 491. “Under Rule 207 (and criminal law in general), what is ‘reasonable’ is

a case-by-case determination based upon the information available to the

police.” Wagstaff, supra at 535. “An action is ‘reasonable’ under the Fourth

Amendment, regardless of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify the action.”    Commonwealth v.

Coughlin, 199 A.3d 401, 410 (Pa. Super. 2018).            The Commonwealth

possesses the burden of establishing by a preponderance of the evidence that

the search or seizure satisfied the mandates of Rule 207 and that the evidence

is therefore admissible. Wagstaff, supra at 535. Finally, we note that:

      There are no set rules as to the time an officer must wait before
      using force to enter a house; the answer will depend on the
      circumstances of each case. No case in this Commonwealth
      interpreting this rule has ever required officers to wait until the
      occupants destroy the evidence or flee and thus render a search
      unavailing or an arrest impossible.

Commonwealth v. Walker, 874 A.2d 667, 674 (Pa. Super. 2005).

      Here, the Commonwealth admitted that the police did not knock and

announce their identity and purpose before entering Johnson’s home by force,

but contended that the entry was justified because the occupants knew they

were coming and why, might have been armed and offered resistance, and

because police had reason to believe that evidence would be destroyed. N.T.

Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 22, 32, 43-47. At

the suppression hearing, Officer Proctor testified that the raid team used force

to enter Johnson’s home because they saw Rodison run from the window and

sought to get inside the house before evidence was destroyed by the

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occupants.   Id. at 32. Johnson argues that the police lacked any exigent

circumstance to justify forcibly entering his home without knocking,

announcing their purpose and identity, and waiting a reasonable period of

time. Brief of Appellant, at 13. Specifically, Johnson argues that Rodison’s

flight from the window as police approached the home was insufficient to

establish that narcotics, paraphernalia, or currency would be destroyed. Id.

     At the hearing on Johnson’s motion to suppress, the trial court offered

the following rationale for denying the motion:

     [I]t is clear that by a preponderance of the evidence[—]probably
     more[—]that the police were justified in believing, obviously, that
     there were drugs in the location, not only because of the
     surveillance that happened from the prior six days, but there was
     actually an alleged drug sale to the CI involved in this case made
     on the day the search warrant was executed not too long
     beforehand. As pointed out, [Johnson,] who had been identified
     by the officer as participating in prior drug sales from that
     location[,] had just arrived moments before. The police were, as
     stated, dressed in raid gear, which has blue and yellow police all
     over them so it is quite clear who they were. There were seven
     of them. You usually don’t see seven police officers walking
     together on routine patrol. They approached the house trying to
     be covert, but [were] unsuccessful.          A person previously
     identified as one of the conspirators involved[, Rodison,] is
     at the bay window, sees them, and runs away from the
     window. He does not run in the direction of the door, which
     is to the left of the window. He runs away from the
     window. I think under all these circumstances the police were
     justified; and [t]he [c]ourt is justified in finding that the people
     inside the premise[s] know the purpose when seven police decked
     out in raid gear are at the front door. I see no evidence in
     anything that is recovered or during the various transactions of
     any weapons, I do not think the safety issue alone would justify
     the exigent circumstances. . . . The running away from the
     window evidence [supports] not only that the occupants
     knew what was happening, but that [there was] a strong


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       possibility that the evidence could be destroyed. I am going
       to deny the motion.

Trial Court Opinion, 5/13/15, at 9-10 (emphasis added).

       In Commonwealth v. Beard, 461 A.2d 790, 792 (Pa. 1983), the

Pennsylvania Supreme Court explained that,

       [t]he fact that [the appellant] recognized the police and[,] upon
       doing so, fled into the residence is sufficient evidence that he knew
       the identity and purpose of the police. Thus, the police had valid
       grounds for being virtually certain that [the Appellant] had
       ascertained their purpose and would attempt to destroy the
       evidence of narcotics. In such circumstances, noncompliance with
       the knock and announce requirement is excused.

Id. at 792-93 (emphasis added); see also Commonwealth v. Dial, 285

A.2d 125, 127 (Pa. 1971) (“when [officers] heard the sounds of running and

the door was not opened, they were warranted in thinking that they were

refused admittance and that an effort was underway to destroy evidence”);

Commonwealth v. Dean, 693 A.3d 1360 (Pa. Super. 1997) (officers with

specific, articulable reason to believe exigent circumstances exist are justified

in departing from knock and announce rule).

       Here, Rodison, who was previously identified as a drug dealer, and who

sold drugs at the house just prior to the warrant’s execution, fled from the

window and front door upon seeing the raid team approach.8 Rodison’s flight

gave the raid team a specific, articulable basis for believing exigent


____________________________________________


8 In fact, police apprehended Rodison (and the other coconspirators) on the
second floor of the home where all of the contraband was located. N.T.
Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 13-14.

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circumstances existed to justify a knock and announce violation; specifically,

the police were virtually certain that the occupants already knew their

purpose, and they had reason to believe evidence was about to be destroyed.

Beard, supra; Dean, supra; Dial, supra.            Accordingly, the suppression

court properly denied Johnson’s suppression motion.

      Johnson also claims that the trial court erred by denying his motion to

compel the disclosure of the CI.      He contends that disclosure of the CI’s

identity was material to the preparation of his defense and that his request

for disclosure was reasonable in that the CI’s safety would not be jeopardized.

Brief of Appellant, at 15-16.

      “Our standard of review of claims that a trial court erred in its disposition

of a request for disclosure of an informant’s identity is confined to abuse of

discretion.” Commonwealth v. Washington, 63 A.3d 797, 801 (Pa. Super.

2013). “Under Pennsylvania Rule of Criminal Procedure 573, a trial court has

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.”

Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa. 2010); see also

Pa.R.Crim.P. 573(B)(2)(a)(i). The Commonwealth enjoys a qualified privilege

to withhold the identity of a confidential source; “only after the defendant

shows that the identity of the confidential informant is material to the defense

is the trial court required to exercise its discretion to determine whether the


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information should be revealed by balancing relevant factors,[9] which are

initially weighted toward the Commonwealth.” Commonwealth v. Watson,

69 A.3d 605, 607-08 (Pa. Super. 2019), quoting Marsh, supra at 321-22.

       Here, Johnson contends that he overcame the Commonwealth’s

qualified privilege against disclosure with evidence establishing that disclosure

was both material to his mistaken identity defense and reasonable. Brief of

Appellant, at 15-16.       Regarding the first prong, Johnson submits that he

established a material need for disclosure because he denied his involvement

in any drug sale and “testified that he looked like his cousin Ramel who also

lived at the property.” Id. at 15. However, Johnson only testified that Ramel

“looks like [him]”—having a “husky buil[d]” and “facial hair”—at trial, after

____________________________________________


9In striking the proper balance, the court must consider the following
principles:

       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.

Marsh, supra at 322.

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the   court   denied   his   motion    to   compel    disclosure.     See    N.T.

Suppression/Motion to Compel Hearing/Trial, 7/10/18, at 76-77. In arguing

the motion, Johnson simply averred that the CI would provide exculpatory

information, but “failed to explain how the revelation of the CI’s identity would

be material in preparing his defense” and “how the CI possessed relevant

information.” Commonwealth v. Ellison, 213 A.3d 312, 318 (Pa. Super.

2019). Accordingly, Johnson failed to make the threshold showing that the

identity of the CI was material to the preparation of his defense, and the trial

court did not err in denying his motion to compel disclosure. See id. (mere

assertion that CI’s identity is material to defense imposes no duty on trial

court to balance competing interests and determine if disclosure required).

      Lastly, Johnson challenges the sufficiency of the evidence of his

conviction for criminal conspiracy—PWID. Whether sufficient evidence exists

to support the verdict is a question of law; our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Tejada, 107 A.3d

788, 792 (Pa. Super. 2015).       We review the evidence in the light most

favorable to the Commonwealth as verdict winner to determine whether there

is sufficient evidence to allow the trier of fact to find every element of a crime

beyond a reasonable doubt. Id.


      In applying the above test, we may not weigh the evidence and
      substitute our judgment for [that of] 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

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      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 evidence actually received must be considered. Finally, the
      [fact-finder,] while passing upon the credibility of the witnesses
      and the weight of the evidence produced, is free to believe all,
      part[,] or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014).

      A person commits the crime of PWID by knowingly creating, delivering,

or possessing with intent to deliver a controlled substance or counterfeit

controlled substance.   35 P.S. § 780-113(a)(30).      To prove the crime of

conspiracy, the Commonwealth must show a defendant entered into an

agreement to commit or aid in an unlawful act with another person, that he

and that person acted with shared criminal intent, and that an overt act was

taken in furtherance of the conspiracy. Commonwealth v. Feliciano, 67

A.3d 19, 25-26 (Pa. Super. 2013) (en banc); 18 Pa.C.S.A. § 903.

      Johnson argues that the Commonwealth failed to prove beyond a

reasonable doubt that he made an agreement with others to distribute

narcotics. Brief of Appellant, at 18. Specifically, he submits that, “[a]t most,

the evidence showed that multiple individuals sold their respective narcotics

from the same house[;]” Johnson did not exchange narcotics or money with

another individual, and none of the packets recovered from his bedroom

matched the packets in the other bedrooms. Id.




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     “An explicit or formal agreement to commit crimes can seldom, if ever,

be proved and it need not be, for proof of a criminal partnership is almost

invariably extracted from the circumstances that attend its activities.”

Commonwealth v. Johnson, 719 A.2d 778, 785 (Pa. Super. 1998). “The

conspiratorial agreement can be inferred from a variety of circumstances

including, but not limited to, the relation between the parties, knowledge of

and participation in the crime, and the circumstances and conduct of the

parties surrounding the criminal episode.”       Feliciano, supra quoting

Commonwealth v. Devine, 26 A.3d 1139, 1147 (Pa. Super. 2011). These

factors “may create a web of evidence linking the accused to the alleged

conspiracy beyond a reasonable doubt.”       Devine, supra at 1147.        In

Feliciano, supra, we concluded that there was sufficient evidence to sustain

the appellant’s conviction for conspiracy to commit PWID where a woman

exited the defendant’s house and told an undercover agent, “He’s bagging it

up. He will be out,” before the defendant exited the house and handed the

agent five bags of cocaine. Id. at 26. We rejected the appellant’s argument

that the Commonwealth failed to prove the existence of any agreement

between the appellant and the woman, explaining that, because the appellant

acted in accordance with her statement to the agent, it was “sufficiently

evident that [a]ppellant entered into an agreement with [her] with the shared

criminal intent of selling cocaine, and he committed the necessary overt act

by selling the drug.”    Id.   Thus, here, it was not necessary for the


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Commonwealth to prove that Johnson made an express agreement with the

others to distribute narcotics or share in the profits. Johnson, supra; see

also Feliciano, supra.

      The evidence, viewed in the light most favorable to the Commonwealth

as verdict winner, shows that four individuals including Johnson were engaged

in a drug sales operation together and exercised joint possession and control

over the premises as well as the drugs and packaging materials inside. In

addition to the drug sales Johnson made to the CI over several days, Johnson

was present when an unidentified male sold marijuana to the CI from the

premises on November 1, 2017. Furthermore, during the week the warrant

was executed, both Johnson and Rodison sold crack cocaine to the CI, but all

of the crack cocaine recovered from the house was kept outside of Johnson’s

bedroom; this belies his argument that the individuals maintained their own

“respective narcotics.”   Brief of Appellant, at 18.   We agree with the trial

court’s conclusion that “[a]ny jury could have reasonably inferred that all of

them were aiding each other in [their] endeavors in a tacit conspiratorial

agreement based on the circumstantial evidence.”          Trial Court Opinion,

5/13/18, at 18.    In sum, the evidence is sufficient to sustain Johnson’s

conviction for conspiracy to commit PWID.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/20




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