Com. v. Williams, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AARON MICHAEL WILLIAMS :
:
Appellant : No. 559 WDA 2020
Appeal from the Judgment of Sentence Entered January 28, 2020
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0002225-2017
BEFORE: SHOGAN, J., DUBOW, J., and KING, J.
MEMORANDUM BY SHOGAN, J.: FILED: MAY 20, 2021
Appellant, Aaron Michael Williams, appeals from the judgment of
sentence entered on January 28, 2020, after a jury found Appellant guilty of
three counts of Possession with Intent to Deliver (“PWID”), three counts of
Delivery of a Controlled Substance, and three counts of Possession of a
Controlled Substance.1 After careful review, we affirm the judgment of
sentence.
We set forth the following procedural and factual history. In 2015,
several members of the Pennsylvania Attorney General’s Office, the Plum
Borough Police Department and the Penn Hills Police Department were part of
a drug task force investigating whether Appellant was selling illegal narcotics.
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1 35 P.S. §§ 780-113(a)(30), 780-113(a)(30), and 780-113(a)(16),
respectively.
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On March 31, 2015, a confidential informant (“CI”) contacted Appellant at
cellular telephone number 412.612.0668 and arranged to purchase heroin.
N.T. (Trial), 10/23/19, at 95. Police searched the CI and provided officially
documented funds to the CI to purchase the heroin. Id. at 115. The CI and
Detective Joseph Signorella drove to a residential location on Mt. Carmel Road.
The CI was driving, and Detective Signorella was a passenger. Id. at 114.
Several other officers were present near the location, providing cover. Id. at
79, 219. Appellant approached the CI and Detective Signorella from the
driver’s side of the automobile, and the funds were exchanged for drugs. Id.
at 115. In addition to the CI and Detective Signorella, Detective Kenneth
Farmerie was positioned in such a manner that he observed the transaction
between the CI and Appellant. N.T. (Trial), 10/24/19, at 270. The CI handed
the drugs to Detective Signorella, and they left the location. N.T. (Trial),
10/23/19, at 115. After returning to the predetermined location, Detective
Signorella counted fifty stamp bags of heroin, marked “Total Control.” Id.
A second controlled-buy took place on May 4, 2015. The CI again
contacted Appellant at phone number 412.612.0668. N.T. (Trial), 10/24/19,
at 275-276. Appellant directed the CI and Police Officer William Moore, an
individual associated with the task force, to a Shop ‘n Save grocery store in
Penn Hills. N.T. (Trial), 10/23/19, at 139. Officer Moore drove the CI’s car to
the location, and the CI was in the passenger’s seat. Id. at 141. Multiple
officers provided cover and surveillance. N.T. (Trial), 10/24/19, at 271. After
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Appellant arrived at the Shop ‘n Save, the CI left the automobile and entered
the passenger side of Appellant’s vehicle. N.T. (Trial), 10/23/19, at 143.
Officer Moore watched Appellant and the CI exchange money and drugs. Id.
at 144. The CI then exited Appellant’s vehicle and entered the automobile
with Officer Moore. Officer Moore took custody of the heroin, and he and the
CI returned to their original location. Id. At that location, Officer Moore
counted fourteen bags of heroin marked “Tap Out.” Id. at 145. After realizing
they had not received all the heroin they had agreed to purchase, the CI and
Officer Moore texted Appellant at the same 412 phone number, and Appellant
agreed to provide additional heroin the following day. Id. at 145-146. The
parties agreed to meet at a shopping plaza near the Shop ‘n Save. Id. at
146-147.
On May 5, 2015, Officer Moore and the CI drove to the shopping plaza
parking lot. After Appellant arrived, the CI and Appellant exited their vehicles,
exchanged greetings, and entered Appellant’s vehicle, with Appellant on the
driver’s side and the CI on the passenger’s side. Id. at 148. Multiple officers
provided cover and surveillance. Officer Moore observed the CI and Appellant
exchange the official funds for heroin. Id. at 149. Another officer, Officer
Darryl Granata, testified that he and every other officer who provided cover
observed Appellant. N.T. (Trial), 10/24/19, at 235. Chief Michael Klein
testified that he observed Appellant through a monocular to be sure he could
identify him, but noted that given the short distance between them, the
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monocular was not necessary. Id. at 244-245. The CI returned to Officer
Moore’s vehicle, and they drove to the designated meet spot where the stamp
bags were counted and entered into evidence. The seven stamp bags were
marked “Fun Power.” N.T. (Trial), 10/23/19, at 151.
The fourth controlled-buy took place on May 28, 2015. The CI contacted
Appellant and arranged to purchase two bundles of heroin for $150.00. N.T.
(Trial), 10/23/19, at 171. The CI contacted Appellant using a different
telephone number than the one used in the previous buys. Id. The CI drove
Officer Signorella to a residential area in Penn Hills. Id. at 172. Multiple
officers provided cover and surveillance. Id. at 181. Appellant drove up, and
the cars were positioned driver’s side window to driver’s side window. Id. at
172. The CI handed Appellant the official funds, and Appellant handed the CI
a pack of Newport cigarettes containing approximately twenty-four stamp
bags of heroin. Id. at 173. Officer Signorella and the CI returned to their
initial location, and another detective counted the stamp bags of heroin. Id.
The bags were stamped with the words “Top Five.” Id. at 175. Appellant
subsequently was arrested.
On June 15, 2017, Appellant filed an Omnibus Pretrial Motion including,
inter alia, a Motion to Disclose the Identity, Address and Communications of
Confidential Informant and a Motion to Sever Charges. Appellant’s Omnibus
Pretrial Motion, 6/15/17. Appellant filed amended Omnibus Pretrial Motions
on September 7, 2017, and April 17, 2018. The trial court held a hearing on
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Appellant’s various pretrial motions on May 5, 2018 and denied Appellant’s
motion to sever following argument at the hearing. N.T. (Motions Hearing),
5/11/18, at 52-54. Following the hearing, the trial court requested additional
briefs on the subject of the identification of the CI. Id. at 98. Appellant filed
an additional brief on May 14, 2018, and the trial court denied the motion on
May 15, 2018. Order, 5/15/18.
Appellant was tried before a jury on March 26 and 27, 2019. The jury
was unable to reach a unanimous verdict, and the case ended in a mistrial.
N.T. (March Trial), 3/27/19, at 406. Appellant proceeded to a second jury
trial on October 22, 2019. After all the evidence had been received, Appellant
requested that the trial court give jury instruction 3.21A, Failure to Call a
Potential Witness. N.T. (Trial), 10/24/19, at 352. The trial court denied the
request. Id.
The jury found Appellant guilty of three counts of Delivery of a
Controlled Substance, three counts of PWID, and three counts of Possession.
The jury found Appellant not guilty of counts four, five, and six, which were
charges stemming from the May 4, 2015 buy. Appellant proceeded to
sentencing on January 28, 2020. The trial court sentenced Appellant to
twenty-one to forty-two months of incarceration and two years of probation
for each of the Delivery convictions with the remaining charges merging; thus,
Appellant received an aggregate sentence of sixty-three to 126 months of
incarceration followed by six years of probation. Order of Sentence, 1/18/20.
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Appellant filed a timely post-sentence motion, which the trial court denied.2
Order, 4/15/20.
Appellant filed a timely notice of appeal on May 14, 2020. Appellant
filed his Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on
Appeal on June 19, 2020. On July 2, 2020, the Honorable Bruce Beemer filed
a letter with this Court transmitting the record without judicial opinion.
Appellant presents the following three questions for our review:
I. Did the trial court err in failing to disclose the identity of the
CI where the disclosure was material and reasonable, and
[Appellant’s] right to a defense outweighed the
Commonwealth’s speculative claims about the CI’s safety?
II. Did the trial court err in denying the motion to sever where
consolidation of the offenses unduly prejudiced [Appellant],
the evidence of each offense would not have been
admissible in a separate trial, and/or the evidence was
capable of separation by the jury?
III. Did the trial court err in denying [Appellant’s] request for an
adverse inference jury instruction where the CI was not
available to the defense, and possessed material
information that was not merely cumulative?
Appellant’s Brief at 8 (full capitalization omitted).
In his first issue, Appellant argues that the trial court erred when it
denied Appellant’s motion to disclose the identity of the CI. Appellant’s Brief
at 21. In support, Appellant claims the Commonwealth presented no evidence
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2 Appellant’s trial counsel, Wendy Williams, filed a petition to withdraw as
counsel on February 6, 2020. The trial court granted the petition and
appointed the Allegheny County Public Defender’s Office to represent
Appellant during his appeal. Order of Court, 2/21/20.
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other than that of police officers, who had obstructed or distant views of the
transactions, and the identity of the CI was material to Appellant’s defense of
mistaken identity. Id.
“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:
(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. Commonwealth v. Bing, [551
Pa. 659, 713 A.2d 56 (1998)]; Commonwealth v. Roebuck, 545
Pa. 471, 681 A.2d 1279, 1283 n. 6 (1996). 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.
Roebuck, supra at 1283. 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
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whether the information should be revealed by balancing relevant
factors, which are initially weighted toward the Commonwealth.
Bing, supra at 58; Commonwealth v. Herron, 475 Pa. 461, 380
A.2d 1228 (1977).
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 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. Carter, 427 Pa. 53, 233 A.2d
284, 287 (1967) (quoting Roviaro v. United States,
353 U.S. 53, 60–62, 77 S.Ct. 623, 1 L.Ed.2d 639(1957)).
Commonwealth v. Marsh, 606 Pa. 254, 260–261, 997 A.2d 318,
321–322 (2010).
Commonwealth v. Watson, 69 A.3d 605, 607-608 (Pa. Super. 2013).
In support of this issue, Appellant argues that the disclosure of the CI’s
identity is material to Appellant’s defense of mistaken identity. Appellant’s
Brief at 23. Appellant further avers that the CI was present for all of the buys
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and had the closest vantage point to Appellant. Id. Ultimately, Appellant
argues that fundamental fairness requires disclosure of the CI’s identity. Id.At the hearing on the motion, when asked what evidence Appellant had that
supported the allegation, counsel replied that “[we] feel there is no credible
evidence against the defendant.” N.T. (Motions Hearing), 5/11/18, at 71. The
following exchange took place between Appellant’s counsel and the trial court:
The court: In a case like this, Ms. Williams, why is the motive
of the confidential informant material? Why is that
even relevant? These officers were there and
watched these deals go down. Whether this
informant was a hired gun or was being paid to do
this or whether he did this out of the goodness of
his heart, the bottom line is your client allegedly
exchanged drugs for money in front of these
detectives on four separate occasions. Why is the
motive of the CI even material?
Ms. Williams: My position is motive and bias is always relevant.
* * *
Ms. Williams: Okay, but this is 18 months later with no other
evidence, no photographs, no phone records,
nothing else.
The court: But my question to you is, what evidence do you
have of mistaken identity that a confidential
informant could possibly strengthen?
Ms. Williams: It is my position that the evidence is material and
it might alter the jury’s judgment.
The court: But why? You cannot just -- you cannot just
quote to me from case law. You have a burden
here of establishing materiality and it cannot just
be tried based on case law.
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Ms. Williams: The testimony in this case is solely based on the
testimony of police officers with nothing to
corroborate it. And I think in a case like this,
given the totality of the circumstances, we’re
entitled to that in order for him to get a fair trial.
Id. at 73-74.
As discussed above, Appellant must first show that the sought-after
information is material to the preparation of his defense. Marsh, 997 A.2d at
321-322.
The defendant need not predict exactly what the informant will
say, but he must demonstrate a reasonable probability the
informant could give evidence that will 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 is 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). The court will exercise its discretion to determine if the information
should be provided by balancing relevant factors, which are initially weighted
toward the Commonwealth. Marsh, 997 A.2d at 321-322.
In the instant case, following a hearing on the pretrial motions, the court
found that Appellant failed to proffer any evidence of mistaken identity despite
being repeatedly asked for the same. N.T. (Motions Hearing), 5/11/18, at 91.
Specifically, the court noted that given the lack of evidence regarding the
defense of mistaken identity, Appellant had no more than “speculative hope”
that the CI would “identify someone else or refuse to testify or something
along those lines.” Id. The court further stated:
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I do not find that disclosure of the C.I. is material to the
stated defense that is allegedly going to be put forward in this
case of mistaken identity. I find that the defendant has no
evidence of mistaken identity. That the C.I.’s disclosure would
bear upon other than speculative hope that the C.I. would identify
someone else or refuse to testify or something along those lines.
The [c]ourt in this matter has repeatedly asked for some
offer of proof as to what evidence of mistaken identity exists and
he received none.
Id. at 91-92. We agree with the trial court that Appellant failed to present
evidence establishing that the identity of the CI was material to any defense
he intended to rely upon, including that of mistaken identity.
Commonwealth v. Watson, 69 A.3d 605, 609 (Pa. Super. 2013) (finding
trial court did not abuse its discretion in denying motion for identification of
the CI’s identity where the defendant failed to present credible evidence of
mistaken identity).
To the extent Appellant relies upon Commonwealth v. Payne, 656
A.2d 77 (Pa. 1994), and Commonwealth v. Carter, 233 A.2d 284 (Pa.
1967), in support of his argument that the trial court erred, we note that both
cases involved a single occurrence or observation of the defendant by
undercover officers. Payne, 656 A.2d at 78; Carter, 233 A.2d at 286, 287.
In the instant case, the undercover officers who observed Appellant did so on
multiple occasions, and their identification of Appellant was bolstered by the
fact that additional officers were present and observed Appellant at the
locations where the drug transactions occurred. See Commonwealth v.
Bing, 713 A.2d 56, 59 (Pa. 1998) (finding “the fact that there were numerous
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observations of the seller, although not legally determinative, weighs in favor
of the Commonwealth’s privilege.”).
In a more recent case involving the identification of a confidential
informant, our Supreme Court found that the trial court erred when it granted
the defendant’s motion to identify a confidential informant where the
defendant failed to establish a material need for disclosure of the CI’s identity.
Marsh, 997 A.2d at 322. In that case, the CI informed police that the
defendant was a large supplier of illegal drugs. Id. at 320. The CI described
the defendant and ultimately accompanied an undercover officer to make a
drug purchase from the defendant. Id. The defendant got into the back of
the officer’s car and removed four bags of cocaine from a bag he was holding.
Id. The defendant was arrested almost immediately following the exchange,
while he was still in the undercover officer’s car. Id. The defendant filed a
pretrial motion seeking disclosure of the identification of the CI because it was
material to his defense of mistaken identity. Id. Despite the fact that the
defendant was caught “red-handed,” the trial court granted the motion.
Our Supreme Court ultimately found that the defendant failed to show
that the identity of the informant was material to his defense and that the
request was reasonable. The Court noted that the Commonwealth correctly
pointed out that the defendant did not present any evidence in support of his
motion; he simply made conclusory statements. Marsh, 997 A.2d at 322.
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The Court further stated, “[A]llegations alone do not supplant the need to
make an actual evidentiary showing.” Id. The Court advised:
There can be no ambiguity in this regard, and we reiterate here
the bedrock principle that there is no single determinative factor
in deciding whether disclosure of an informant’s identity is
required. Rather, the determination must depend on the
particular circumstances of each case, taking into consideration
the crime charged, the possible defenses, the possible significance
of the informants’ testimony and other relevant factors.
Id. at 322-323.
In the instant case, as in Marsh, Appellant’s conclusory statements
failed to establish that the identity of the CI was material to his defense.
Moreover, Appellant was observed on multiple occasions by multiple officers;
thus, we discern no error or abuse of discretion on the part of the trial court
in denying Appellant’s motion to identify the CI.
In his second issue, Appellant asserts that the trial court erred when it
denied his motion to sever charges. Appellant’s Brief at 30. In support,
Appellant argues the consolidation of the offenses unduly prejudiced
Appellant, they would not have been admissible in a separate trial, and the
evidence was not capable of separation by a jury to avoid confusion. Id.“The determination of whether separate indictments should be
consolidated for trial is within the sole discretion of the trial court[,] and such
discretion will be reversed only for a manifest abuse of discretion or prejudice
and clear injustice to the defendant.” Commonwealth v. Boyle, 733 A.2d
633, 635 (Pa. Super. 1999). Indeed:
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The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it
appears that any party may be prejudiced by offenses
or defendants being tried together.
Pa.R.Crim.P. 583. Under Rule 583, the prejudice the defendant
suffers due to the joinder must be greater than the general
prejudice any defendant suffers when the Commonwealth’s
evidence links him to a crime. Commonwealth v. Lauro, 819
A.2d 100, 107 (Pa. Super. 2003).
[T]he “prejudice” of which Rule [583] speaks is not
simply prejudice in the sense that [an] appellant will
be linked to the crimes for which he is being
prosecuted, for that sort of prejudice is ostensibly the
purpose of all Commonwealth evidence. The
prejudice of which Rule [583] speaks is, rather, that
which would occur if the evidence tended to convict
[the] appellant only by showing his propensity to
commit crimes, or because the jury was incapable of
separating the evidence or could not avoid cumulating
the evidence.
Id. (emphasis in original) (quoting Commonwealth v. Collins,
550 Pa. 46, 703 A.2d 418, 423 (1997)). Moreover, “the admission
of relevant evidence connecting a defendant to the crimes charged
is a natural consequence of a criminal trial, and it is not grounds
for severance by itself.” Id. (quoting Collins, 703 A.2d at 423).
Reading these rules together, our Supreme Court established the
following test for severance matters:
Where the defendant moves to sever offenses not
based on the same act or transaction that have been
consolidated in a single indictment or information, or
opposes joinder of separate indictments or
informations, the court must therefore determine:
[1] whether the evidence of each of the offenses
would be admissible in a separate trial for the other;
[2] whether such evidence is capable of separation by
the jury so as to avoid danger of confusion; and, if the
answers to these inquiries are in the affirmative,
[3] whether the defendant will be unduly prejudiced
by the consolidation of offenses.
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Collins, 703 A.2d at 422 (quoting Commonwealth v. Lark, 518
Pa. 290, 543 A.2d 491, 496–97 (1988)).
Commonwealth v. Ferguson, 107 A.3d 206, 210-211 (Pa. Super. 2015).
We also note that Appellant bears the burden of establishing prejudice. Id.
at 210. “The general policy of the law is to encourage joinder of offenses and
consolidation of indictments when judicial economy can thereby be effected,
especially when the result will be to avoid the expensive and time consuming
duplication of evidence.” Commonwealth v. Patterson, 546 A.2d 596, 600
(Pa. 1988). Pursuant to Pa.R.Crim.P. 582:
(1) Offenses charged in separate indictments or informations
may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582 (1)(a) and (b).
Appellant argues that trying his cases together amounted to an avenue
to “improperly admit prior bad acts evidence.” Appellant’s Brief at 30.
Appellant argues that he was unduly prejudiced because the jury “could not
avoid cumulating the evidence” and that the evidence improperly bolstered
the testimony of the police officers. Id. at 32. Appellant asserts that separate
identifications on separate dates blurred into one identification of Appellant.
Id. at 33. Appellant further claims that the March 28 th and May 31st buys
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were not “inherently connected” to the May 4th and May 5th buys. Id. at 35.
Finally, Appellant avers that there was a risk of confusion to the jury due to
the number of cases and testifying officers, who had different involvement
and visibility. Id. at 36.
Instantly, Appellant was charged with four counts of PWID, four counts
of delivery of a controlled substance, and four counts of possession of a
controlled substance following four incidents, which occurred within less than
sixty days of one another. In his brief, Appellant admits that “[t]hough the
incidents may have had similarities on their face, those were merely
characteristics common to many drug busts.” Appellant’s Brief at 35. We
disagree with Appellant’s characterization of the four incidents.
In Commonwealth v. Boyle, 733 A.2d 633 (Pa. Super. 1999), this
Court found that the trial court did not err in refusing to sever because the
following testimony revealed a common scheme
in which a deal for a specified dollar amount of powder cocaine
was set up by the CI using Appellant’s coded page number and
waiting for Appellant to call back. A meeting place was set to
which the CI and the undercover agent drove in an unmarked
vehicle and waited for Appellant, who on each occasion, working
with a group of co-conspirators, quickly obtained the amount of
cocaine. Appellant then delivered the drug to the CI or the
undercover agent and was paid in cash. These multiple drug
deliveries were clearly related and revealed a common plan
through which Appellant could and did obtain and deliver cocaine
when money was offered.
Id at 636-637. The Court found that the “the details of Appellant’s
involvement in one transaction tends not to prove Appellant’s propensity to
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commit crimes, but rather the likelihood that he was involved in each
transaction.” Id. at 637. Ultimately, the Court concluded that the trial court
did not err when it denied the defendant’s motion to sever because “each
delivery possessed a common scheme….” Id. We draw the same conclusion
herein.
Indeed, a review of the record establishes that each delivery possessed
a common scheme. The same CI contacted Appellant in each incident, and
the parties agreed upon a location to exchange heroin for money. All of the
buys happened within sixty days of one another, and they all occurred in the
same area. In each exchange, Appellant provided stamp bags of heroin in
exchange for funds. Moreover, the CI used the same telephone number to
contact Appellant–412.612.0668–for the March 31, 2015, May 4, 2015, and
May 5, 2015 buys. N.T. (Trial), 10/23/19, at 94; N.T. (Trial), 10/24/19, at
275-276. Further, testimony from the police officers involved in the May 4,
2015, May 5, 2015, and May 28, 2015 transactions establish that Appellant
arrived to the drug buys in a silver Chevy automobile. N.T. (Trial), 10/23/19,
at 142, 172; N.T. (Trial) 10/24/19, at 244.3
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3 We also note that several of the detectives were involved in more than one
of the exchanges–for example Officer Moore provided cover surveillance for
the May 28, 2015 sale and was in the CI’s vehicle when the May 4, 2015 and
May 5, 2015 deals occurred. N.T. (Trial), 10/23/19, at 140, 146, 181.
Similarly, Officer Granata was involved in both the March 31, 2015 and the
May 4, 2015 buys, providing cover surveillance. N.T. (Trial), 10/24/19, at
219, 220-221. Chief Klein was involved in the May 4, 2015 and the May 5,
(Footnote Continued Next Page)
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Appellant also avers that the evidence was not capable of separation by
the jury. Appellant’s Brief at 36. We do not agree. Each of the four
transactions in this case was initiated by the CI. The CI and an undercover
officer drove to a location and met with Appellant. Each transaction involved
the delivery of distinct stamp bags of heroin–with different names or brands
stamped on the bags. As in Boyle, where we found that the “testimony
involved a limited number of actors and essentially the same conduct, and
provided a pattern of facts to the jury which was not complex,” there was no
risk of confusing the jury. See Boyle, 733 A.2d at 637.
Finally, Appellant has failed to establish that he was prejudiced by the
trial court’s decision. Appellant argues that the joinder of cases allowed
“highly prejudicial prior bad acts evidence” into a trial. Appellant’s Brief at 35.
He asserts that he was prejudiced by the separate identifications from
separate days which blurred into a single identification of Appellant. Id. at
33. The actions of the jury, however, make clear that it was able to
differentiate between the transactions, consider each charge separately, and
not cumulate the evidence. Commonwealth v. Dozzo, 991 A.2d 898, 903
(Pa. Super. 2010) (where jury found defendant not guilty of several charges,
it demonstrated the jury did not cumulate evidence and considered all of the
charges). Indeed, the jury in this case found Appellant not guilty of any
____________________________________________
2015 buys. Id. at 242. Finally, we note that Detective Farmerie was involved
in the March 31, 2015 buy as well as the May 4, 2015 buy. Id. at 268, 271.
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charges stemming from the May 4, 2015 buy. N.T. (Trial), 10/24/19, at 452-
453; Criminal Information, 3/31/2017, at 4. Thus, “the presentation of the
evidence, the court’s jury instructions, and the jury verdict demonstrated that
the jury was able to and did separate the evidence for each case when it
rendered its verdict.” Dozzo, 991 A.2d at 903 (citing Pa.R.Crim.P. 582;
Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997)). Appellant is due no
relief on this issue.
In his final issue on appeal, Appellant argues that the trial court erred
when it refused his motion for an adverse jury instruction based on the
Commonwealth’s refusal to make the CI available to the defense. Appellant’s
Brief at 37. We review a challenge to a jury instruction for an abuse of
discretion or error of law. Commonwealth v. Rush, 162 A.3d 530, 540 (Pa.
Super. 2017). Moreover, we note that the “trial court is not required to give
every charge that is requested by the parties and its refusal to give a
requested charge does not require reversal unless the appellant was
prejudiced by that refusal.” Id.Our Supreme Court has articulated what has come to be known
as the “missing witness” adverse inference rule as follows:
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.
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Commonwealth v. Manigault, 501 Pa. 506, 510-11, 462 A.2d
239, 241 (1983) (quotations, citations and emphasis omitted).
However, this Court has summarized the circumstances that
preclude issuance of the instruction as follows:
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.
Commonwealth v. Boyd, 356 Pa.Super. 302, 308-09, 514 A.2d
623, 626 (1986) appeal denied, 515 Pa. 618, 531 A.2d 427(1987) (Johnson, J., concurring) (citing Commonwealth v.
Harley, 275 Pa.Super. 407, 413, 418 A.2d 1354, 1357 (1980)).
Commonwealth v. Evans, 664 A.2d 570, 573-574 (Pa. Super. 1995).
Appellant argues that the CI had special information that would not have
been cumulative of other testimony because of his or her past relationship
with Appellant, and because the CI was closest to Appellant during the drug
buys. Appellant’s Brief at 39. In support of his argument, Appellant relies
upon Evans, 664 A.2d 570. Evans, however, is not instructive in this case
as it involved a single interaction between the defendant and a police officer,
whereas, the instant case involved several interactions with multiple police
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officers. Moreover, the defendant in Evans did not file a motion seeking the
identity of the CI, while in this case the trial court heard evidence and
argument and determined that the Commonwealth did not have to identify
the CI, as discussed supra.
In Commonwealth v. Delligatti, 538 A.2d 34, 39-40 (Pa. Super.
1988) this Court found no error on the part of the trial court when it denied
the defendant’s request for a missing-witness instruction. In that case, the
defendant filed a motion seeking the disclosure of the identity of the CI, which
the trial court denied. The appellant also argued the trial court erred in
refusing to give a missing-witness instruction. Id. at 39-40. This Court found
as follows:
We conclude that the Commonwealth supplied the trial court with
a satisfactory reason for not calling the informant to testify during
trial. Namely, the informant’s identity was confidential. It is
obvious that, had the informant been called as a witness to testify,
the Commonwealth’s objective of protecting the informant’s
anonymity would have been stymied. Accordingly, we find no
merit in Appellant’s argument.
Id. at 40.
Here, the trial court heard argument and testimony on the identity of
the CI and ultimately determined that the disclosure of the witness was not
material to Appellant’s defense. The court denied Appellant’s motion to
identify the CI. We agree with the Commonwealth’s argument that if the trial
judge had agreed to provide the missing-witness instruction, the
Commonwealth would have been placed in the untenable position of being
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“penalized for exercising its legitimate right to keep the identity of its
informant confidential.” Commonwealth’s Brief at 25.
Finally, we note that at the hearing on the motion to disclose the identity
of the CI, the trial court heard testimony regarding the Commonwealth’s
safety concerns for the CI in addition to the issues relating to materiality. N.T.
(Motions Hearing), 5/11/18, at 79-90. During that portion of the hearing,
Officer Donald Temple testified that he was concerned about the CI’s safety.
Id. at 80. The Commonwealth presented evidence of Appellant’s prior arrests
and/or convictions for intimidating a witness and terroristic threats as well as
carrying a firearm without a license. Id. at 81-85. The trial court held, “I do
find that the officer’s concern for [the] safety of the confidential informant is
a reasonable one. Most especially because of the nature of some of these
convictions, not arrests, but convictions.” Id. at 92-93. We discern no abuse
of discretion in the trial court’s determination. See Boyle, 733 A.2d at 639(finding no error where trial court denied missing witness instruction where
the Commonwealth posited the satisfactory explanation for non-production of
a witness, including, inter alia, concerns for the CI’s safety ); see also
Commonwealth v. Jones, 637 A.2d 1001, 1006 (Pa. Super. 1994) (same).
Appellant has failed to show the trial court erred when it denied his request
for the missing witness jury instruction.
For all the foregoing reasons, the judgment of sentence is affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/20/2021
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