Com. v. Powell, R. ( 2017 )

J-A16016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAEMAR POWELL
Appellant No. 656 WDA 2016
Appeal from the Judgment of Sentence Entered April 7, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0004937-2015
BEFORE: STABILE, J., FORD ELLIOTT, P.J.E., and STRASSBURGER, J.*
MEMORANDUM BY STABILE, J.: FILED: SEPTEMBER 28, 2017
Appellant Raemar Powell appeals from the April 7, 2016 judgment of
sentence entered in the Court of Common Pleas of Allegheny County (“trial
court”), following his bench convictions for two counts of possession with
intent to deliver heroin (“PWID”) (35 P.S. § 780-113(a)(30)), possession of
a controlled substance (heroin) (35 P.S. § 780-113(a)(16)), possession of
drug paraphernalia (35 P.S. § 780-113(a)(32)), and criminal use of
communication facility (18 Pa.C.S.A. § 7512). Upon review, we affirm.
Following an undercover narcotics operation by the District Attorney’s
Narcotics Enforcement Team (“DANET”), Appellant was charged with the
above-mentioned crimes. On July 22, 2015, Appellant filed a “Motion to
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* Retired Senior Judge assigned to the Superior Court.
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Disclose Identity of Confidential Informant,” seeking the identity of the
confidential informant (“CI”) because of inconsistencies between the
information contained in the criminal complaint and the testimony presented
at his preliminary hearing. Specifically, Appellant claimed that, while the
“[c]riminal [c]omplaint makes no mention of a [CI] being involved [in the
undercover operation,]” “the detective stated [at the preliminary hearing]
that the CI was involved and did the ‘hand to hand deal’ himself with
[Appellant].” Appellant’s Motion to Disclose, 7/22/15, at ¶¶ 2-3 (sic). Thus,
Appellant claimed that the information adduced at the preliminary hearing
was “contrary to what was stated in the [c]riminal [c]omplaint.” Id. at ¶ 3.
On November 12, 2015, the trial court held a hearing on Appellant’s
disclosure motion. At the hearing, the Commonwealth presented the
testimony of Detective Robert Grondwalski, a fifteen-year veteran of the
Hampton Township Police Department.
Detective Grondwalski testified that, on February 10, 2014, he was
working in an undercover capacity as a narcotics investigator when he
engaged in a narcotics transaction with Appellant. Id. at 9. According to
Detective Grondwalski, the officers who initiated the undercover operation
showed him a photograph of Appellant prior to the narcotics transaction. Id.
at 9-10. As a result of having seen Appellant’s “mugshot,” Detective
Grondwalski was able to identify Appellant at the time of the transaction.
Id. at 9.
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Describing the events that precipitated the February 10, 2014 incident,
Detective Grondwalski testified that, in his presence, the CI called Appellant
to set up a drug transaction. Id. at 11. Detective Grondwalski stated that
the CI and Appellant arranged for the transaction to take place at “the
Burger King Restaurant on Route 8 in Shaler.” Id. at 11. Detective
Grondwalski also testified that, to complete the narcotics transaction, he
drove himself and the CI to Burger King restaurant in his undercover vehicle.
Id. According to Detective Grondwalski, other officers had set up
surveillance of the location. Id.
He testified that he and the CI arrived at Burger King first and waited
slightly over an hour for Appellant to arrive. Id. at 12-13. Detective
Grondwalski further testified that Appellant pulled up in a Silver Audi and
parked it “within a car length” from Detective Grondwalski’s vehicle. Id. at
13. A female was seated in the front passenger seat next to Appellant. Id.
Detective Grondwalski further testified that he exited his vehicle and that the
CI remained seated inside the undercover vehicle, where he remained
throughout the narcotics transaction at issue. Id. Detailing his encounter
with Appellant, Detective Grondwalski testified:
[Appellant] was the operator of the vehicle. There was an
unknown female seated in the front passenger seat. I conducted
the transaction with [Appellant] through the front passenger
window in which case the female did not touch any drugs or any
money and didn’t say anything about the transaction. I
conducted it directly with [Appellant].
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Id. Detective Grondwalski stated that he recognized Appellant from the
photograph that was shown to him prior to the narcotics transaction. Id. at
14.
On cross-examination, Appellant confronted Detective Grondwalski
with the alleged inconsistences between the information contained in the
criminal complaint and Detective Grondwalski’s testimony at the preliminary
hearing1 regarding the involvement of the CI. Detective Grondwalski
testified that he did not issue the criminal complaint and rejected Appellant’s
claim that Detective Grondwalski had agreed at the preliminary hearing to
reveal the identity of the CI at trial. Id. at 15-18. Moreover, Detective
Grondwalski rejected Appellant’s claim that, at the preliminary hearing,
Detective Grondwalski had testified that it was the CI—not he—who engaged
in the hand-to-hand drug transaction with Appellant. Id. at 16-17 (“I said
[the CI] arranged [the narcotics transaction]. [The CI] never took part in
it.”). Detective Grondwalski explained that, prior to the transaction at issue,
the CI had confirmed the identity of Appellant. Specifically, Detective
Grondwalski explained:
Typically what happens is somebody wants to cooperate
with the police. They say they can buy controlled substances
from an individual. They may know this individual. They may
know this individual by a legal name. They may not know them
by a legal name. They may know him by a street name and
they give a description. They may have a number.
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1 As a court reporter was not present, the preliminary hearing was not
transcribed. See N.T. Hearing, 11/12/15, at 17-18.
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The officers do a background investigation. We try to
figure out the legal identity of this person. If we obtain the legal
identity of this person, we would show some form of mugshot,
JNET photo, something, to the informant. “Is this the person
you know sells drugs?”
They would confirm the identity of that person. We would
conduct a transaction with this person sometimes using a body
wire, sometimes using an undercover police officer.
At the conclusion of this transaction, if we know the
identity of the suspect, the legal name, and it is confirmed by
the confidential informant and by the undercover police officer,
we allow them to leave with the money for safety purposes and
to protect the confidentiality of the informant.
If we do not know the identity of this person, we would not
allow this to take place. We would be giving our money away to
an unknown person. We would not able to make an arrest[.]
Id. at 20-22.
In response, Appellant presented the testimony of his mother, Lashonn
Perry, to impeach the credibility of Detective Grondwalski. Ms. Perry
testified that, contrary to Detective Grondwalski’s testimony, he did testify
at the preliminary hearing that the CI “made a hand-to-hand buy with”
Appellant and that the Commonwealth would reveal the identity of the CI at
trial. Id. at 27.
At the close of the hearing, in support of Appellant’s disclosure motion,
his counsel argued that there was “definitely a contradiction as to how the
identity [of Appellant] was made and to whom it was made. I think those
are matters that can be cleared up.” Id. at 31. Essentially, counsel urged
the trial court not to find Detective Grondwalski’s testimony credible, absent
corroboration of the circumstances underlying the narcotics transaction by
the CI. Id. at 33.
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On January 14, 2016, on the day of—but prior to the commencement
of—Appellant’s non-jury trial, the trial court denied Appellant’s motion to
seek disclosure of the CI’s identity. In so doing, the trial court found:
[Detective] Grondwalski, a Hampton police officer with 15
years experience and also a member of the DANET team and
District Attorney’s Narcotics Enforcement Team, is part of the
investigation here that began on February—early February,
February 7, 2014, targeting eventually [Appellant] and the
investigation including the use of [the CI] and [the CI] being
used to contact [Appellant] to arrange a buy that took place on
February 10, 2014.
The [CI] was used to call [Appellant] in the presence of the
police officers, DANET team and a meeting was arranged on
Route 8 in Shaler Township at the Burger King restaurant. The
CI accompanied [Detective] Grondwalski to the pre-arranged
site, in fact that vehicle with Grondwalski and the CI arrived
prior to [Appellant’s] arriving. [Appellant] arrived in a separate
vehicle with a female companion in the front seat, [Appellant]
being the driver of that vehicle.
[Detective Grondwalski] left his vehicle and conducted—
allegedly conducted a transaction between himself and
[Appellant] and the vehicles left the area and the drugs were
secured. Those drugs were secured and [Appellant] eventually
arrested in that regard.
....
There’s a dispute on two fronts from my perception; one is
the usual strict legal analysis of the production of the CI for
purposes of trial, in the interest of preparing and presenting
[Appellant’s] defense. There is a second issue as to the
production of the CI pursuant to a representation [Appellant’s
counsel] states was made by [Detective Grondwalski] at the
preliminary hearing.
The court finds in this instance that the CI was the—
remained in the vehicle when the transaction occurred.
[The CI] is a potential witness to events surrounding the
actual exchange but apparently not a witness to the
actual exchange of money and drugs as that took place at
the window of the vehicle with [Appellant] and
[Detective] Grondwalski.
In any event the court finds also that [Appellant] has
available to him in terms of the exact specifics of the transaction
the female person who has not yet been identified. But even if
the court were to reach—make that determination of materiality
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the court finds as stated at the time of the preliminary hearing
the Commonwealth has an interest in protecting the CI’s identity
and safety in today’s world of violence surrounding the drug
trade. Consequently, the court is denying the motion for
production under that analysis.
Now, as to the alleged promise that was made to produce
the CI for purposes of trial by [Detective Grondwalski] or officers
at the preliminary hearing, the court finds that in that instance
that the officers have no authority to promise production of any
witness at that point in time. At a preliminary hearing, the
district attorney’s office assumes control of the prosecution
consistent with the rules of criminal procedure and it’s their
prosecution not the police prosecution. Consequently, even if
such a promise was made the court is not finding such. It is
without legal effect. It’s the DA who has the authority to do so
and if in fact that occurred has not been established.
Consequently the motion to produce on both fronts is denied.
N.T. Trial, 1/14/16, at 3-6 (sic) (emphasis added).
At the January 14, 2016 non-jury trial, Appellant did not renew his
motion for disclosure of the CI’s identity or proffer any additional or new
evidence in support of such motion. Following the trial, the trial court found
Appellant guilty of two counts of PWID, possession of a controlled substance
(heroin), possession of drug paraphernalia, and criminal use of
communication facility. On April 7, 2016, the trial court sentenced Appellant
to an aggregate term of three years’ probation. 2 Appellant did not file any
post-sentence motions. Appellant, however, timely appealed to this Court.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement
of errors complained of on appeal. Appellant complied, asserting, among
other things, that the trial court abused its discretion in denying his pretrial
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2 At count one (PWID), concurrently with his sentence of probation, the trial
court also sentenced Appellant to 12 months of intermediate punishment.
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motion for disclosure of the CI’s identity. In response, the trial court issued
a Pa.R.A.P. 1925(a) opinion, concluding in part that Appellant’s claim was
without merit.
On appeal, Appellant repeats the same issue for our review:
[I.] Whether the trial court erred and/or abused its discretion in
failing to order the Commonwealth to produce the name of the
[CI]?
Appellant’s Brief at 6.
“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. Watson, 69 A.3d 605, 607 (Pa.
Super. 2013) (citation omitted). Similar to other pretrial motions, such as
suppression, when an appellant challenges a pretrial motion for disclosure of
a CI’s identity, our scope of review is limited to the relevant pretrial hearing
transcripts. See In the Interest of L.J., 79 A.3d 1073, 1088-89 (Pa.
2013) (noting that our scope of review is limited to the evidence presented
at the pretrial hearing). Moreover, “it is inappropriate to consider trial
evidence as a matter of course, because it is simply not part of the [pretrial]
record, absent a finding that such evidence was unavailable during the
[pretrial] hearing”.” Id. at 1085.
Rule of Criminal Procedure 573 provides that 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:
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(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 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).
The Commonwealth enjoys a qualified privilege to withhold the
identity of a confidential source. In order to overcome this
qualified privilege and obtain disclosure of a confidential
informant’s identity, a defendant must first establish, pursuant
to Rule 573(B)(2)(a)(i), that the information sought is material
to the preparation of the defense and that the request is
reasonable. 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
information should be revealed by balancing relevant factors,
which are initially weighted toward the Commonwealth.
In 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
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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.
Commonwealth v. Marsh, 997 A.2d 318, 321-22 (Pa. 2010) (internal
citations omitted) (alteration in original).
“Where the confidential informant is not a witness to the incident at
issue, the defendant must show that the Commonwealth’s disclosure of the
identity of the informant is (1) material to his defense; (2) reasonable; and
(3) in the interests of justice.” Commonwealth v. King, 932 A.2d 948,
952 (Pa. Super. 2007).
Regarding the element of materiality, the defendant must
show as a threshold matter that the informant’s identity is
germane to the defense. Evidence is relevant and material to
the defense if it tends to show that a specific crime of which a
defendant stands accused was committed by someone else. The
record must disclose a reasonable possibility that the information
sought will materially aid the defendant in presenting his
defense and is not obtainable from another source.
Id. at 953 (quotation marks and citations omitted) (emphasis in original).
Thus, “[b]efore an informant’s identity may be revealed, the defendant must
lay an evidentiary basis or foundation that the confidential informant
possesses relevant information that will materially aid the defendant in
presenting his or her defense and that the information is not obtainable from
another source.” Commonwealth v. Hritz, 663 A.2d 775, 780 (Pa. Super.
1995) (citation and emphasis omitted). Furthermore, “the safety of the
confidential informant is a controlling factor in determining whether to reveal
his identity.” Commonwealth v. Bing, 713 A.2d 56, 58 (Pa. 1998).
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Instantly, on appeal, Appellant argues that the trial court abused its
discretion in denying his disclosure motion because (1) the incident in
question involved “a single drug transaction by a person that the police did
not buy drugs from before or after;” (2) “[t]he police witnesses did not know
Appellant;” (3) “the criminal complaint was filed over nine (9) months later;”
and (4) “the Commonwealth presented no independent evidence which
demonstrated a connection between Appellant and the vehicle and/or the
telephone” used to set up the narcotics transaction. Appellant’s Brief at 12,
21-22. At the core, Appellant essentially raises a misidentification
argument.
The foregoing argument, however, is in stark contrast to the argument
made in the trial court or contained in the motion for disclosure of the CI’s
identity. Specifically, in the trial court, Appellant claimed that the
inconsistencies between the information contained in the criminal complaint
and Detective Grondwalski’s testimony required the disclosure of the CI’s
identity. In other words, Appellant sought the disclosure of the CI’s identity
to contradict Detective Grondwalski’s version of how the narcotics
transaction occurred and who was involved in the hand-to-hand buy.
Based on our review of the record, as detailed above, we conclude that
Appellant is not entitled to relief. Here, as the Commonwealth aptly notes,
“Appellant made no showing of mistaken identity at the pre-trial hearing and
made no offering as to exactly how the CI’s testimony would be helpful to
his defense.” Commonwealth’s Brief at 15. Appellant made only a bald
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allegation that the disclosure of the CI’s identity would entitle him to a fair
trial without specifying how the disclosure of the CI’s identity was material to
his defense, reasonable and in the interests of justice. Indeed, at the
hearing on his disclosure motion, Appellant did not argue that he was not
present in the vehicle at the time of the narcotics transaction. Appellant also
did not argue that the CI would possess exculpatory evidence that would aid
Appellant in establishing his innocence or otherwise was necessary for the
preparation of his defense. Thus, under the circumstances of this case, we
cannot conclude that the trial court abused its discretion in denying
Appellant’s disclosure motion because he failed to make a showing of
materiality.3 Accordingly, Appellant’s claim on appeal fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2017
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3 Because Appellant is unable to show materiality, we need not determine
whether his request for disclosure of the CI’s identity is reasonable or in the
interests of justice. See Pa.R.Crim.P. 573(B)(2)(a)(i); Marsh, surpa,
Hritz, supra.
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