Com. v. Bethea, E. ( 2022 )

J-S28022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC BETHEA :
:
Appellant : No. 1688 MDA 2021
Appeal from the Judgment of Sentence Entered October 18, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005173-2018
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: DECEMBER 16, 2022
Eric Bethea appeals the judgment of sentence imposed following his
convictions for possession with intent to deliver a controlled substance
(“PWID”) and criminal use of a communication facility.1 He challenges the
weight and sufficiency of the evidence. He also challenges the court’s denial
of his request to give a missing witness instruction and limiting his cross-
examination. We affirm.
The Commonwealth presented the following evidence at trial. Trooper
William Dubbs, Corporal Matthew Yingst, Detective Cory Dickerson, and
Detective Keith Ocker were involved in conducting a controlled drug buy with
a confidential informant (“CI”). The CI knew Bethea by the name of “Boo-
Kiss.” Trooper Dubbs testified that the identity of the CI is generally kept
____________________________________________
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
J-S28022-22
confidential “because of their safety because we’re dealing with dangerous
people.” N.T., Trial, 3/12/20 - 3/13/20, at 76. He also stated that there is a
fear of “[r]etaliation. Possibly death, possibly assault.” Id. Trooper Dubbs met
with the CI at an undisclosed location on June 7, 2018. Id. at 79. Trooper
Dubbs searched the CI and Detectives Dickerson and Ocker searched the CI’s
car. Id. at 81. They searched the CI “to make sure that they have no drugs,
money, contraband, anything else that’s on them.” Id. They did not recover
anything from the search. Id. at 81-82. After searching the vehicle and the
CI, Trooper Dubbs gave the CI $700 to purchase a half ounce of crack cocaine
from Bethea. Id. at 82.
The CI then drove to meet Bethea at Choice Cigarettes. Bethea arrived
at the location in his vehicle. Id. at 142-43. Detective Dickerson testified that
he observed Bethea alone in the vehicle, in the driver’s seat. Id. at 142. The
CI got out of their vehicle and entered the front passenger side of Bethea’s
car. Id. at 143. After being in Bethea’s car for about two minutes, the CI
exited, returned to their vehicle and drove back to the undisclosed location.
Id. at 143-44. The CI did not make any stops before or after meeting with
Bethea. Id. at 140, 144. Detective Dickerson remained in constant view of
the CI outside of the CI entering Bethea’s vehicle. At the undisclosed location,
the CI handed Detective Dickerson a Newport box containing crack cocaine.
Id. at 145. Detective Dickerson then searched the CI and the CI’s vehicle and
again did not recover anything. Id. at 146-147.
-2-
J-S28022-22
Before trial, counsel requested that the court give a missing witness
instruction. Id. at 9. The Commonwealth objected and cited Commonwealth
v. Jones, 637 A.2d 1001 (Pa.Super. 1994). N.T., Trial, 3/12/20 - 3/13/20, at
9.The court stated that it would resolve the issue before the closing and before
charging the jury. Id. During trial, defense counsel asked Detective Dickerson
on cross-examination for the name of the CI. The Commonwealth objected
and the court sustained the objection. Id. at 102. The court directed counsel
not to ask questions that were “identifying” in nature. Id. at 103.
Before closing arguments, defense counsel again requested a missing
witness instruction. Id. at 211. The Commonwealth objected, stating that it
had a “genuine concern for the safety of the confidential informant[.]” Id. The
court denied the request:
Well, the missing witness instruction is usually when there’s
no explanation for the witness’s absence. I think the
witnesses that did testify said that it’s part of their
protection plan for their informants and for that reason I
don’t think it falls within. And I think it’s more than
adequately used and is not testified to so I’m going to deny
the request and you have an exception on the record.
Id..
The jury found Bethea guilty of the above-referenced crimes. The trial
court sentenced him to two and one-half to five years’ incarceration. Bethea
filed a post-sentence motion which the trial court denied. This timely appeal
followed.
Bethea raises the following issues:
-3-
J-S28022-22
I. Whether the trial court committed an abuse of
discretion by failing to give a missing witness jury
instruction where the Commonwealth failed to call the
only eyewitness.
II. Whether the trial court erred in preventing trial
counsel from asking questions regarding the
confidential informant.
III. Whether the trial court committed an abuse of
discretion in accepting the jury’s verdict which was so
contrary to the weight of the evidence where the
informant is the only one who the Commonwealth
proved delivered a controlled substance.
IV. Whether the trial court erred in accepting the jury’s
verdict where the evidence presented was insufficient
to establish [Bethea] delivered a controlled substance.
Bethea’s Br. at 5.
Bethea claims that the trial court erred in failing to give a missing
witness instruction based on the Commonwealth not calling the CI to testify.
He maintains that the factors outlined in Commonwealth v. Evans, 664 A.2d
570 (Pa.Super. 1995), “to preclude the instruction [do] not specially include
‘confident informant.’” Id. at 16. He argues that the Commonwealth did not
give a satisfactory reason for failing to call the CI, other than stating that they
generally do not call confidential informants as witnesses and that drug
dealers are dangerous people. Thus, he maintains that the Commonwealth’s
explanation lacked specificity and as such the court erred in failing to give the
instruction.
We review jury instructions for an abuse of discretion. “The trial court is
not required to give every charge that is requested by the parties and its
-4-
J-S28022-22
refusal to give a requested charge does not require reversal unless the
appellant was prejudiced by that refusal.” Commonwealth v. Scott, 73 A.3d
599, 602 (Pa.Super. 2013) (internal quotation marks and citations omitted).
Where the appellant claims that the court erred in failing to give a particular
instruction, this Court must determine “whether such charge was warranted
by the evidence in the case.” Commonwealth v. Boyle, 733 A.2d 633, 639
(Pa.Super. 1999) (citations omitted).
Our Supreme Court has articulated the circumstances in which a missing
witness instruction should be given:
When a potential witness is available to only one of the
parties to a trial, and it appears this witness has special
information material to the issue, and this person’s
testimony would not merely be cumulative, then if such
party does not produce the testimony of this witness, the
jury may draw an inference that it would have been
unfavorable.
Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983) (quotations,
citations and emphasis omitted).
A missing witness instruction need not be given where there is a
satisfactory explanation for the failure to call the witness. Evans, 664 A.2d at
574. Nor is the instruction necessary where the witness’s testimony would be
“comparatively unimportant, cumulative, or inferior to that already
presented[.]” Id. at 573.
The Commonwealth has a “qualified privilege to withhold the identity of
a confidential source.” Commonwealth v. Marsh, 997 A.2d 318, 321 (Pa.
-5-
J-S28022-22
2010). In Evans, this Court discussed factors that when considered may
obviate the need for a missing witness instruction. These factors include:
1. The witness is so hostile or prejudiced against the party
expected to call him that there is a small possibility of
obtaining unbiased truth;
2. The testimony of such a witness is comparatively
unimportant, cumulative, or inferior to that already
presented;
3. The uncalled witness is equally available to both parties;
4. There is a satisfactory explanation as to why the
party failed to call such a witness;
5. The witness is not available or not within the control of
the party against whom the negative inference is desired;
and,
6. The testimony of the uncalled witness is not within the
scope of the natural interest of the party failing to produce
him.
Evans, 664 A.2d at 573-574 (emphasis added).
Here, the trial court determined that the Commonwealth offered “a
satisfactory explanation for the failure to call the CI to the stand[,]” specifically
its concern “for the safety of the CI.” Rule 1925(a) Opinion, filed 3/8/22, at 7.
We agree. This concern satisfactorily explained the failure to call the CI as a
witness. See Jones, 637 A.2d at 1005. The court heard testimony from
Trooper Dubbs that the identities of confidential informants are generally kept
confidential for fear for their safety, including retaliation, death, or assault.
The court in denying Bethea’s request concluded that there was sufficient
testimony that the purpose of keeping the identity of the informant concealed
-6-
J-S28022-22
was a matter of protection. Bethea’s reliance on Evans is unavailing. No relief
is due.
Next, Bethea claims that the court erred in limiting his questions on
cross-examination about the CI. He maintains that the court hindered his
defense by restricting his questions of Trooper Dubbs regarding the identifying
markers of the CI since part of his trial strategy “was to attack the lack of
details and challenge the witness’s memory.” Bethea’s Br. at 21.
It is within the court’s discretion to grant or deny a request to compel
the identity of a CI. Marsh, 997 A.2d at 321. The court should consider
whether the defendant has shown “that disclosure of an informant’s identity
would yield information material to his or her defense[.]” Id. If the court finds
that the defendant has shown that the informant’s testimony is material, the
court should then consider “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 essential
to a fair balancing of the competing interests involved.” Id.Here, Bethea failed to show that disclosure of the informant’s identity
was material to his defense. At no point at trial did Bethea offer any reason
that the CI’s identity was material to his defense. See N.T., at 102-104. The
court did not err in concluding that “[Bethea] offered no suggestion that the
CI’s identity would aid in [the] exoneration of [Bethea] or was material to his
defense.” 1925(a) Op. at 6.
-7-
J-S28022-22
For his remaining two issues, Bethea challenges the weight and
sufficiency of the evidence for the PWID conviction. He argues because the CI
did not contact him in the presence of officers and because no one observed
the actual drug transaction, the jury’s verdict is against the weight of the
evidence. He also argues that the Commonwealth failed to present any
evidence that he sold drugs to the CI. He states that “[t]he Commonwealth’s
entire case rested on the legitimacy of this unknown informant who was never
questioned and did not have to appear in court.” Bethea’s Br. at 26.
“Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict is against the
weight of the evidence.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.
2013) (citation and emphasis omitted). “[T]he finder 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.
Roberts, 133 A.3d 759, 767 (Pa.Super. 2016) (citation omitted).
Additionally, when reviewing a challenge to the sufficiency of the
evidence we must determine “whether viewing all the evidence admitted at
trial in the light most favorable to the [Commonwealth], there is sufficient
evidence to enable the fact-finder to find every element of the crime beyond
a reasonable doubt.” Id. (citation omitted). The Commonwealth may sustain
its burden “by means of wholly circumstantial evidence.” Id. (citation
omitted). “Moreover, . . . the entire record must be evaluated and all evidence
actually received must be considered.” Id. (citation omitted).
-8-
J-S28022-22
To carry its burden for PWID, the Commonwealth was required to prove
beyond a reasonable doubt that Bethea manufactured, delivered, or
possessed with intent to manufacture or deliver, a controlled substance and
that he was not registered within the Drug Act to do so. See 35 P.S. § 780-
113(a)(30). “A defendant actually transfers drugs whenever he physically
conveys drugs to another person.” Commonwealth v. Murphy, 844 A.2d
1228, 1234 (Pa. 2004).
Here, the trial court rejected both of Bethea’s claims.
While the hand-to-hand transaction occurred outside the
view of officers conducting surveillance, multiple officers
otherwise observed the entirety of the transaction. No other
individuals were either in the CI’s car or [Bethea’s] car. The
CI did not stop anywhere or interact with anyone on the way
to and from the arranged buy . . . .
The testimony established that the buy location at Choice
Cigarettes was no more than five minutes from the secured
location where the CI was searched. Further, regardless of
the passage of time, the CI and his car had been thoroughly
searched prior to and after the arranged buy, ensuring that
the CI had not obtained any drugs except that which he
bought from [Bethea].
***
In the present case, the weight of the evidence supports the
conviction. [Bethea] asserts that “[t]he evidence merely
established that [Bethea] drove to Choice Cigarettes, not
that he partook in a drug transaction.” On the contrary, the
CI and his car were thoroughly searched at a secure location
and were then observed traveling from the secure location
to the location of the arranged buy at Choice Cigarettes.
Detective Dickerson then observed the CI enter [Bethea’s]
car, exit the car, and followed the CI from Choice Cigarettes
back to the secure location where the CI gave police the
purchased drugs and was again searched. [Bethea] failed to
establish a satisfactory explanation for the drugs, and
-9-
J-S28022-22
merely questioned the thoroughness of the search and the
length of time of travel between the secure location and the
buy location.
1925(a) Op. at 12-14 (citations to record omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
the evidence was sufficient. As the court concluded, the Commonwealth
presented evidence that Bethea met with the CI, gave the CI crack cocaine,
and that no intervening circumstances happened before, during, or after the
drug purchase. Despite Bethea’s claim that the Commonwealth’s case rested
solely on the legitimacy of the informant, the testimony at trial consisted of
Detectives Ocker and Dickerson, Trooper Dubbs, and Corporal Yingst. The
testimony demonstrated that after Trooper Dubbs and Detectives Ocker and
Dickerson thoroughly searched the CI and his vehicle, the CI met with Bethea
to purchase crack cocaine. Before meeting with Bethea, no drugs were
recovered from the CI’s person or car. Upon returning from his meet-up with
Bethea, the CI handed over a Newport cigarette box containing crack cocaine.
Detective Dickerson, who followed the CI, testified that the CI did not make
any stops before or after meeting with Bethea. The evidence supports the
conviction, and the court did not abuse its discretion in ruling on the weight
claim. Therefore, Bethea is not entitled to relief on his weight and sufficiency
claims.
Judgment of sentence affirmed.
- 10 -
J-S28022-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2022
- 11 -