Com. v. Edmonds, T. ( 2018 )

J-S81039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
TERRANCE LAMONT EDMONDS,
Appellant No. 897 MDA 2017
Appeal from the Judgment of Sentence May 5, 2017
in the Court of Common Pleas of York County
Criminal Division at Nos.: CP-67-CR-0001412-2016
CP-67-CR-0003899-2016
BEFORE: PANELLA, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 08, 2018
Appellant, Terrance Lamont Edmonds, appeals from the judgment of
sentence imposed following his jury conviction of possession with intent to
deliver a controlled substance and delivery of a controlled substance, at the
above-listed docket numbers.1 We affirm.
The trial court aptly set forth the facts and procedural history of this
case in its August 14, 2017 opinion2 as follows:
On October 27, 2015, the York County Drug Task Force and
the West Manchester Township Police Department conducted a
drug investigation focused on [Appellant]. On that date, Officer
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30).
2 See Pa.R.A.P. 1925(a).
J-S81039-17
Adam Bruckhart, a police officer with West Manchester Township
who is employed full time as a special detective with York County
Drug Task Force, utilized a confidential informant (CI) in the
course of the drug investigation to engage in a controlled purchase
of heroin from [Appellant]. Using official funds, Officer Bruckhart
and Officer [Patrick] Gartrell supplied the confidential informant
with two-hundred dollars ($200.00) and the CI engaged in a
controlled delivery where [Appellant] supplied the CI with over
twenty (20) bags of heroin, or two bundles of the drug. During
the controlled buy, [O]fficer Bruckhart observed [Appellant’s]
vehicle, a white Chevrolet pickup truck. At the conclusion of the
controlled buy, Officer Bruckhart followed [Appellant] three (3) to
four (4) blocks to the Smoker’s Outlet, located in Spring Garden
Township, where he and several other officers initiated an arrest
of [Appellant]. However, before taking [Appellant] into custody,
Officer Bruckhart observed another individual[, Justin Huson,3]
standing at the passenger side window of [Appellant’s] truck with
cash in hand, supposedly buying drugs from [Appellant]. In the
process of arresting [Appellant], Officer Bruckhart observed a soft,
lunch box sized, cooler by [Appellant’s] feet which contained
[eighty-seven bags] of heroin. After pulling him from his truck,
Officer Bruckhart searched [Appellant] and found two cell phones,
and the two-hundred dollars ($200.00) of official funds used
during the controlled buy. Following his arrest, [Appellant] was
charged with the above listed offenses.[4]
On March 2[2], 2017, following the conclusion of a jury trial,
the jury unanimously found [Appellant] guilty of both possession
with the intent to deliver heroin and [delivery] of heroin. On May
5, 2017, in case 1412-2016, [Appellant] was sentenced to three
and one-half (3 1/2) years to seven (7) years’ incarceration, and
in case 3899-2016, [Appellant] was sentenced to a term of three
(3) to six (6) years’ incarceration, to run consecutive to the
sentence imposed in 1412-2016.
____________________________________________
3Justin’s surname also appears as “Hewson” in the record; we have taken the
predominant spelling.
4 Relevant to the instant appeal, Appellant filed a motion to suppress evidence
in case 1412-2016, and a motion to disclose the identity of the CI in case
3899-2016. The trial court denied both motions on October 5, 2016, following
a hearing.
-2-
J-S81039-17
On May 30, 2017, [Appellant], by and through his attorney,
Richard Robinson, Esquire, filed a timely notice of appeal. On June
6, 2017, this court directed [Appellant] to file a concise statement
of errors complained of on appeal pursuant to [Pa.R.A.P.]
1925(b), giving [him] twenty-one (21) days after the entry of the
order to file his response. On June 22, 2017, [Appellant] timely
filed his statement of matters complained of on appeal. . . .
(Trial Court Opinion, 8/14/17, at 2-4) (record citations and some capitalization
omitted).
Appellant raises the following issues for our review:
I. Whether the honorable trial court erred in denying Appellant’s
motion to suppress in case 1412 CA 2016 on the following
grounds: the arrest and subsequent search and seizure of the
Appellant and his property was illegal; arresting officers did not
have sufficient probable cause to arrest the Appellant and
subsequently conduct a search of the Appellant and his property;
the confidential informant was not established to be a reliable
confidential informant in that there was nothing stated in the
affidavit or at the hearing about prior information provided by the
confidential informant which led to arrests and convictions; the
officers did not engage in any investigation to corroborate the
information provided by the confidential informant[?]
II. Whether the honorable trial court erred in denying Appellant’s
motion to disclose identity of confidential informant in case
number 3899 CA 2016 on the following grounds: none of the
police officers involved, or any other witnesses, observed what
transpired between the Appellant and the confidential informant;
as a result, the confidential informant would be the only witness
which the Appellant should have been entitled to cross examine;
the overall evidence in the case involved the questionable
reliability of the confidential informant which made it imperative
that the Appellant have an opportunity to examine the confidential
informant or at [] least interview prior to trial; none of the alleged
conversations between the Appellant and confidential informant
were recorded or preserved which made it imperative that
Appellant examine the confidential informant or at least interview
the confidential informant prior to trial[?]
-3-
J-S81039-17
III. Whether the honorable trial court erred in overruling defense
counsel’s objection to testimony of Commonwealth witness Cyle
Kennell about hearsay conversations with another individual
concerning the purchase of heroin which did not fall into the co-
conspirator exceptions[?]
(Appellant’s Brief, at 4) (most capitalization omitted).
Appellant first challenges the trial court’s denial of his motion to
suppress, arguing that the police lacked sufficient probable cause to arrest
him. (See id. at 10-13). He contends that the Commonwealth failed to
establish the reliability of the CI where the information the CI provided was
not corroborated by any independent police investigation. (See id.). This
issue does not merit relief.
Our standard of review of claims challenging the denial of a suppression
motion is as follows:
We may consider only the Commonwealth’s
evidence 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 record supports
the factual findings of the trial court, we are bound by
those facts and may reverse only if the legal
conclusions drawn therefrom are in error. An
appellate court, of course, is not bound by the
suppression court’s conclusions of law.
In reviewing questions of law, our standard of review is de
novo and our scope of review is plenary.
Commonwealth v. Livingstone, 174 A.3d 609, 618–19 (Pa. 2017) (citations
omitted).
“[A]ppellate courts are limited to reviewing only the evidence presented
at the suppression hearing when examining a ruling on a pre-trial motion to
suppress.” Commonwealth v. Bush, 166 A.3d 1278, 1281–82 (Pa. Super.
-4-
J-S81039-17
2017) (citation omitted). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given
their testimony.” Id. at 1282 (citation omitted).
The existence of probable cause for an arrest is assessed by
using the following principles:
Probable cause to arrest exists when the facts
and circumstances within the police officer’s
knowledge and of which the officer has reasonably
trustworthy information are sufficient in themselves to
warrant a person of reasonable caution in the belief
that an offense has been committed by the person to
be arrested. Probable cause justifying a warrantless
arrest is determined by the totality of the
circumstances.
. . . It is the facts and circumstances within the personal
knowledge of the police officer that frames the determination of
the existence of probable cause.
Commonwealth v. Weaver, 76 A.3d 562, 565 (Pa. Super. 2013), aff’d, 105
A.3d 656 (Pa. 2014) (citations and emphasis omitted).
“The question we ask is not whether the officer’s belief was correct or
more likely true than false. Rather, we require only a probability, and not a
prima facie showing, of criminal activity.” Bush, supra at 1283 (citation
omitted).
“[A] determination of probable cause based upon information received
from a confidential informant depends upon the informant’s reliability and
basis of knowledge viewed in a common sense, non-technical manner.”
Commonwealth v. Gagliardi, 128 A.3d 790, 795 (Pa. Super. 2015) (citation
omitted). Information provided by a CI “may constitute probable cause where
-5-
J-S81039-17
police independently corroborate the [information], or where the informant
has provided accurate information of criminal activity in the past, or where
the informant himself participated in the criminal activity.” Id. at 795-96
(citation omitted).
In this case, the trial court found the testimony of Officers Bruckhart
and Gartrell credible, and the information provided by the CI reliable. (See
Trial. Ct. Op., at 9-10). It denied Appellant’s suppression motion based upon
the following facts, which are supported by the testimony at the suppression
hearing:
On October 27, 2015, Officer Bruckhart stated that he had
made contact with a confidential informant regarding a controlled
buy. Officer Bruckhart, whom this [c]ourt found credible, had
previously worked with this CI and this CI had provided
information on more than five (5) occasions. The information
previously provided by the CI had assisted Officer Bruckhart in
making felony drug arrests. Officer Bruckhart found this CI to be
credible. Officer Bruckhart testified that he met with the CI and
the CI provided information about [Appellant]. Particularly, the
CI stated that [Appellant], known in the community as Jazz, drives
around in a white Chevrolet pickup truck and always has heroin in
the vehicle. Based on that information, Officer Bruckhart and the
CI agreed to perform a controlled purchase of heroin from
[Appellant]. Through text messages, the CI set up the
transaction. After the CI set up the transaction, Officer Bruckhart
arranged with Officer Patrick Gartrell to control the CI and he,
Officer Bruckhart, would perform surveillance.
* * *
. . . Officer Gartrell stated that he met with the CI prior to the
controlled buy and searched the CI prior to the interaction with
[Appellant] to confirm that the CI was free of any drugs, money,
or contraband. After doing so, Officer Gartrell provided the CI
with two-hundred dollars ($200) in official funds, which were
-6-
J-S81039-17
photocopied before they were given to the CI, to use for
purchasing the heroin.
Officer Gartrell testified that he witnessed the CI make
contact with [Appellant], both by observing the CI on their cell
phone with [Appellant] and by texting with [Appellant] for the
purpose of arranging the controlled buy. Eventually, the CI and
Officer Gartrell moved to the location in which [the CI] was to
meet [Appellant]. At that location, Officer Gartrell kept the CI
under continuous surveillance. Officer Gartrell stated that when
[Appellant] arrived in his truck, the CI walked up to [Appellant’s]
truck and got in. Less than a minute later, [] Officer Gartrell
observed the CI get out of [Appellant’s] truck and the CI started
to walk back to where Officer Gartrell was stationed.
The CI returned to Officer Gartrell’s vehicle and handed
Officer Gartrell a quantity of heroin that he had just purchased
from [Appellant]. The CI informed Officer Gartrell that [he] had
observed an additional amount of heroin under the driver’s side
seat in [Appellant’s] truck. The CI also stated that [Appellant]
was heading to the Smoker’s Outlet, which was not far from their
current location, to conduct a heroin transaction with another
individual.
. . . [T]he officers followed [Appellant] to the Smoker’s
Outlet where he was seen providing another individual with
heroin, and was subsequently arrested.
(Id. at 6-8) (record citations omitted).
Thus, the record reflects that Officer Bruckhart had worked with this CI
on five occasions in the past, and that the information the CI provided was
reliable in that it led to felony drug arrests. (See N.T. Suppression Hearing,
10/05/16, at 14). Officer Gartrell personally observed the CI make contact
with Appellant via text messages and a phone call to arrange the controlled
heroin purchase. (See id. at 4-5). During execution of the controlled buy,
the officer accompanied the CI to the agreed-upon location, and kept him
under continuous surveillance. (See id. at 5-6). Less than one minute after
-7-
J-S81039-17
the CI entered Appellant’s vehicle, he returned to Officer Gartrell with a
quantity of heroin, and information that Appellant had additional heroin in his
vehicle and was on his way to conduct another heroin delivery at a nearby
location. (See id. 6-7). The officers corroborated this information by
following Appellant to the specified location, where they observed Justin
Huson approach Appellant’s truck with money in his hands to conduct an
apparent drug transaction. (See id. 16-17).
Based on the foregoing, viewing the totality of the circumstances, we
conclude that police had ample probable cause to arrest Appellant. See
Weaver, supra at 565. The information from the CI, (who had provided
accurate information of criminal activity in the past,) as substantiated by the
experienced narcotics officers’ direct observation of the conduct of Appellant
and the CI, was sufficient to warrant a person of reasonable caution to believe
that Appellant was selling drugs at that time. See id.; Gagliardi, supra at
795–96. Appellant’s first issue merits no relief.
Appellant next challenges the trial court’s denial of his motion seeking
disclosure of the CI’s identity. (See Appellant’s Brief, at 13-15). Appellant
maintains that because the CI’s reliability and credibility were in question, he
should have had the opportunity to confront the CI. (See id. at 13, 15). He
claims that the CI’s testimony was necessary to prepare his defense where
the CI was the only eyewitness to the alleged transaction, and there could
have been valid reasons for him to meet with the CI. (See id.). This issue
lacks merit.
-8-
J-S81039-17
“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).
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:
(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:
-9-
J-S81039-17
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.
Commonwealth v. Marsh, 997 A.2d 318, 321–22 (Pa. 2010) (case citations
omitted).
Regarding the threshold inquiry of materiality and reasonableness, this
Court has explained:
. . . The defendant need not predict exactly what the
informant will say, but he must demonstrate a reasonable
possibility the informant could give evidence that would exonerate
him. More than a mere assertion that disclosure of the informant’s
identity might be helpful is necessary. Only after this threshold
showing that the information is material and the request
reasonable is the trial court called upon to determine whether the
information is to be revealed.
Commonwealth v. Belenky, 777 A.2d 483, 488 (Pa. Super. 2001) (citations
omitted).
- 10 -
J-S81039-17
Here, the trial court determined that Appellant failed to meet the
threshold burden. (See Trial Ct. Op., at 12-14). Upon review, we agree.
We first note our disagreement with Appellant’s contention that the CI’s
reliability and credibility were in question. As discussed at length above, the
CI’s trustworthiness was established through the credible testimony of Officers
Bruckhart and Gartrell, who gained valuable information from the CI in the
past, and substantiated information the CI provided regarding Appellant
through personal observation.
Furthermore, Appellant fails to “demonstrate a reasonable possibility the
[CI] could give evidence that would exonerate him[,]” or raise “[m]ore than a
mere assertion that disclosure of the [CI’s] identity might be helpful[.]”
Belenky, supra at 488 (citations omitted). In his brief, Appellant merely
makes the bald, vague assertion that: “there could have been other legal
reasons for the CI and Appellant to meet,” and “[t]here could have been other
reasons that the CI was in contact and had arranged to meet.” (Appellant’s
Brief, at 13, 15). Appellant likewise fails to offer a cogent explanation of how
the CI’s testimony could have aided in his defense, in light of his possession
of eighty-seven bags of heroin at the time of his arrest. (See N.T. Trial,
3/21/17, at 78). Given the lack of support for disclosure, we discern no abuse
of discretion in the trial court’s ruling against it. See Watson, supra at 607.
In Appellant’s final issue, he argues the trial court erred in permitting
Commonwealth witness Cyle Kennell to testify regarding hearsay
- 11 -
J-S81039-17
conversations he had with Justin Huson, concerning the purchase of heroin.
(See Appellant’s Brief, at 15-18). This issue does not merit relief.
“Our standard of review relative to the admission of evidence is for an
abuse of discretion.” Commonwealth v. Feliciano, 67 A.3d 19, 27 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
“Hearsay is defined as a statement that: (1) the declarant does not
make while testifying at the current trial or hearing; and (2) the party offers
in evidence to prove the truth of the matter asserted in the statement. Pa.R.E.
801(c).” Commonwealth v. Williams, 2017 WL 6154484, at *20 (Pa.
Super. filed Dec. 8, 2017). “Communications that are not assertions are not
hearsay. These would include questions, greetings, expressions of gratitude,
exclamations, offers, instructions, warnings, etc.” Pa.R.E. 801, cmt.
Here, the trial court determined that the testimony at issue was not
hearsay. (See Trial Ct. Op., at 16). Upon review, we agree.
Appellant challenges the following exchange:
Q. Okay. And, Mr. Kennell, going back to the afternoon of
October 27th of 2015, did anything happen to you that afternoon
that brings you to court today?
A. My friend, Justin Huson, called me and asked me if—
[Defense Counsel]: Your Honor, I object to conversations
between him and this other individual being hearsay.
* * *
THE COURT: I am going to overrule the objection.
You may answer the question.
- 12 -
J-S81039-17
[A.] Justin called me, asked me if I could pick him up after
work to run out to the city and—you know, every time he called
me, it was to go pick up—you know, get drugs, heroin in
particular.
(N.T. Trial, 3/22/17, at 151-53) (emphases added); (see also Appellant’s
Brief, at 16-17).
We conclude that the testimony in question was not an assertion
admitted to prove the truth of the matter asserted. See Pa.R.E. 801, cmt.
Mr. Kennell’s testimony about what Huson asked him could not have been
hearsay, by definition, because it was a question. See id. Further, Mr.
Kennell’s testimony referencing heroin was his own general description of prior
phone calls with Huson; the testimony did not contain any specific assertions
that Huson made. Additionally, the testimony was introduced, not for the
truth of the matter asserted (i.e., that every time Huson called Kennell it was
to buy drugs), but to assist in creating a complete story of the events leading
up to Appellant’s arrest. (See N.T. Trial, 3/22/17, at 151) (Commonwealth
explaining that testimony was within scope of what was happening on the date
in question). Therefore, the trial court did not abuse its discretion in admitting
the testimony. See Feliciano, supra at 27. Appellant’s final issue does not
merit relief. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
- 13 -
J-S81039-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/08/2018
- 14 -