Com. v. Ward, A.

J. S63044/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ALAN JOSEPH WARD, : No. 739 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, April 25, 2017,
in the Court of Common Pleas of Mercer County
Criminal Division at No. CP-43-CR-0001906-2015
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 12, 2017
Alan Joseph Ward appeals the judgment of sentence in which the
Court of Common Pleas of Mercer County sentenced him to serve a term of
27 to 60 months’ imprisonment for possession with intent to deliver (heroin)
(“PWID”). The trial court also sentenced appellant to a term of 27 to
54 months for criminal conspiracy to commit PWID to run concurrently with
the PWID sentence. After careful review, we affirm.
The relevant procedural history, as recounted by the trial court, is as
follows:
[Appellant] was arrested on December 12,
2015, and charged with [PWID], Possession of Drug
Paraphernalia and Criminal Conspiracy. These
charges arose out of the discovery of 22.02 grams of
heroin during a search of 928 Fruit Avenue in the
City of Farrell that same day.
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....
On September 12, 2016, the Commonwealth
filed a Notice pursuant to Pennsylvania Rule of
Evidence 404(b)(3) of its intent to introduce . . .
three prior uncharged unlawful deliveries to a
confidential informant.
On September 26, 2016, [appellant] filed a
motion seeking disclosure of the confidential
informant’s identity.
Both motions were heard before Judge
Robert G. Yeatts on September 30, 2016.
Judge Yeatts entered an order granting the
Commonwealth leave to introduce the three
uncharged undercover buys at trial and denying the
motion to disclose the identity of the confidential
informant.
A jury trial commenced on February 21, 2017.
On February 22, 2017, the jury returned GUILTY
verdicts on the charges of [PWID] and Criminal
Conspiracy of [PWID] and NOT GUILTY of Possession
of a Controlled Substance and Criminal Conspiracy to
Possession of a Controlled Substance.
On April 25, 2017, [appellant] was sentenced
to concurrent terms of imprisonment of not less than
27 months nor more than 60 months. This sentence
was in the standard range of the Sentencing
Guidelines.
On May 3, 2017, [appellant] filed a Motion for
Judgment of Acquittal. The motion was denied
without a hearing that same day.
On May 4, 2017, [appellant] filed a Motion to
Modify Sentence alleging that the sentence imposed
was manifestly excessive in length because it was
not specifically tailored to the nature of the offense,
the ends of justice and society and the rehabilitative
needs of [appellant]. That motion was denied that
same day without a hearing.
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Trial court opinion, 6/14/17 at 1-3 (footnote omitted).
Appellant filed a notice of appeal to this court on May 19, 2017. On
May 19 2017, the trial court directed appellant to file a statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed his statement of errors on appeal. The trial court then filed its
Rule 1925(a) opinion.
Appellant raises the following issues for this court’s review:
[1.] Challenge to 404(b)(3) Evidence – Whether
the Pre-Trial Court erred when it allowed
evidence of three prior controlled buys as prior
bad acts against [appellant] where appellant
was only involved in one of the three and
whether such evidence’s prejudicial effect
outweighed it probative value.
[2.] Challenge to Denial of Confidential Informant
Identity – Whether the Pre-Trial Court erred
when it granted the admission of prior bad act
evidence in the form of three controlled buys
and also denied [appellant’s] request to reveal
the identity of the confidential informant as the
confidential informant’s testimony was the only
direct evidence of the prior controlled buys and
access to such witness was [appellant’s] only
means to properly defend against said
evidence.
[3.] Challenge to the Sufficiency of Evidence –
Whether the Trial Court erred when it denied
[appellant’s] Motion for Judgment of Acquittal
when the Commonwealth clearly failed to
produce sufficient evidence to prove the
element of possession in regard to the charge
of [PWID] and the conspiracy thereof.
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[4.] Challenge to the Discretionary Aspect of
Sentence – Whether the Trial Court erred when
it issued a clearly unreasonable sentence to
[appellant] for [PWID] resulting in a 27 month
to 60 month state penitentiary sentence and
Conspiracy to Possess a Controlled Substance
with the Intent to Deliver resulting in a 27 to
54 month concurrent state penitentiary
sentence and weather [sic] it violated the
fundamental norm that a sentence of
confinement should address a defendant’s
rehabilitative needs.
Appellant’s brief at 13-14.
Initially, appellant contends that the trial court erred when it allowed
evidence of three prior controlled buys as prior bad acts against appellant
where appellant was only involved in one of the three buys and such
evidence was more prejudicial than probative.
On September 12, 2016, prior to trial, the Commonwealth notified
appellant pursuant to Rule 404(b)(3) of the Pennsylvania Rules of Evidence
that the Commonwealth intended to introduce at trial evidence of appellant’s
participation in prior crimes and prior bad acts for purposes of motive,
opportunity, intent, preparation, plan, knowledge, identity, and absence of
mistake or lack of accident.
The Commonwealth alleged that on December 10, 12, and 13, 2015,
the Mercer County Drug Task Force made a series of controlled buys from
appellant and his cousin, Gregory George Weidner (“Weidner”). The
Commonwealth further alleged that the uncharged buys demonstrated the
conspiracy of appellant and Weidner to possess large amounts of heroin with
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intent to deliver and are prior bad acts that help explain why the search
warrant was issued and why appellant and Weidner were tied to the search
location. (“Commonwealth’s Notice Pursuant to PA.R. [sic] 404(b)(3)” at
7-8, ¶¶ 54-55.) In the December 10, 2015 buy, a confidential informant
(“CI”) telephoned Weidner to set up a purchase. Appellant arrived at the
meeting site driving Weidner’s mother’s BMW X5. Appellant exited the BMW
and walked to the CI’s vehicle and entered it. Two minutes later, appellant
left the vehicle. He drove back to the house on Federal Street. The CI
produced what appeared to be heroin. (Id. at 9, ¶¶ 56-72.) The other two
buys were set up with Weidner near 928 Fruit Avenue. The residence at
Fruit Avenue, where the heroin was found, was owned by Valerie Balbirsingh
in care of her mother, Verna McKeithan, who had an oral agreement to sell
the property to Heidi Harris, aka Heidi Williams, who was Weidner’s mother
and appellant’s aunt. (Id. at 12-13, ¶¶ 107-109.)
In an order dated September 30, 2016, the trial court permitted
evidence of the controlled buys and reasoned:
After review, the Court has determined that
the Commonwealth will be permitted to enter the
evidence of the controlled buys under the
res gestae exception to the prohibition, on prior bad
acts. Res gestae evidence describing other crimes
or bad acts is admissible to tell the complete story
only if the probative value of the evidence outweighs
its potential for unfair prejudice. The controlled buys
allow the prosecution to tell the complete story of
the case, as they are part of the same chain as the
charged crime, and form an integral part of the
police investigation. The controlled buys were used
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as the basis for the search warrant that led to the
seizure of 22.04 grams of heroin from the residence
at 928 Fruit [Avenue], Farrell. These three
uncharged instances of selling narcotics to
undercover agents are necessary to establish the
background of the search warrant, and to show the
course of investigative conduct leading up to
[appellant]’s arrest. Not allowing the
Commonwealth to introduce such evidence would
lead [sic] a large gap in the history of the
investigation, and is not unfairly prejudicial to
[appellant].
Trial court order, 9/30/16 at 2 (citation omitted).
Appellant argues that his only connection to the buys involving
Weidner is that he is Weidner’s cousin and suggestions that appellant is
related to a person who is involved in criminal activity would have the effect
of prejudicing appellant in front of a jury.
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not
merely an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Id. at
1184-1185 (citations omitted).
Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to show
that a defendant acted in conformity with those past
acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior bad
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acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity,
intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. Pa.R.E. 404(b)(2).[1]
In determining whether evidence of other prior bad
acts is admissible, the trial court is obliged to
balance the probative value of such evidence against
its prejudicial impact.
Id. at 1185 (citations to case law omitted).
1
Rule 404. Character Evidence; Crimes or Other
Acts
....
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a
crime, wrong, or other act is not
admissible to prove a person’s
character in order to show that on
a particular occasion the person
acted in accordance with the
character.
(2) Permitted Uses. This evidence
may be admissible for another
purpose, such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident. In
a criminal case this evidence is
admissible only if the probative
value of the evidence outweighs its
potential for unfair prejudice.
(3) Exceptions for a Witness.
Evidence of a witness's character
may be admitted under Rules 607,
608, and 609.
Pa.R.E. 404(b)(1)-(3). Rules 607-609 address the impeachment of
witnesses.
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The evidence was admissible as part of the natural development of the
facts of the case. See Commonwealth v. Burton, 770 A.2d 771, 778
(Pa.Super. 2001), appeal denied, 868 A.2d 1197 (Pa. 2005), overruled
on other grounds by Commonwealth v. Mouzon, 812 A.2d 617 (Pa.
2002) (evidence of other crimes, wrongs, or bad acts is admissible where
they were part of a chain or sequence of events which formed the history of
the case and were part of its natural development, also known as the
“complete story” rationale). This court finds that the trial court did not
abuse its discretion. As the trial court stated, allowing the admission of this
evidence provides the jury with the necessary background as to why the
search at the Fruit Avenue address was conducted. Further, the
Commonwealth alleged that there were much closer connections between
appellant and his cousin with respect to drug transactions than just their
familial relationship.
Appellant also challenges the admission of evidence concerning the
one controlled buy in which the Commonwealth alleged that he did play a
part. Once again and for the same reasons, the trial court did not abuse its
discretion when it permitted the Commonwealth to introduce this evidence.
Appellant next contends that the trial court erred when it denied his
request to reveal the identity of the CI as the CI’s testimony was the only
direct evidence of the prior controlled buys and access to the witness was his
only means to properly defend against such evidence. Appellant argues that
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because the CI was the only eyewitness to the buys and that testimony from
the police officers would be circumstantial, fairness required that he be given
the identity of the informant prior to trial.
When reviewing the denial of a motion to disclose the identity of a CI,
our standard of review is “to determine whether the trial court abused its
discretion in denying appellant’s request for discovery.” Commonwealth v.
Belenky, 777 A.2d 483, 487 (Pa.Super. 2001), citing Commonwealth v.
Roebuck, 681 A.2d 1279, 1282 (Pa. 1996).
The ability to compel disclosure of the identity of a confidential
informant flows from the right to discovery contained in the Rules of
Criminal Procedure. Pa.R.Crim.P. 573 (B)(2)(a)(i), 42 Pa.C.S.A. A
defendant has a qualified right to discovery of the names of eyewitnesses.
However, when the eyewitness is a confidential informant, police
departments have a well-placed reluctance to disclose the identity of such
eyewitnesses and, in fact, a recognized privilege to refuse disclosure of the
identity of informants. Commonwealth v. Bing, 713 A.2d 56, 58 (Pa.
1998). The privilege is not absolute, however, and must give way under
appropriate circumstances.
When moving for disclosure, the defendant must first show “that the
information sought is material and the request is reasonable.” Interest
of D.B., 820 A.2d 820, 822 (Pa.Super. 2003). If the defendant satisfies this
burden, then the trial court must apply a balancing test, with “the balance
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initially weigh[ing] in favor of maintaining confidentiality of the informant’s
identity in order to preserve the public’s interest in effective law
enforcement.” Commonwealth v. McCulligan, 905 A.2d 983, 989
(Pa.Super. 2006).
“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.”
Belenky, 777 A.2d at 488 (citation omitted). “[T]he 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).
See Commonwealth v. Eicher, 605 A.2d 337, 348 (Pa.Super. 1992),
appeal denied, 617 A.2d 1272 (Pa. 1992) (appellant seeking disclosure of
informant must have “concrete evidence” corroborating defense theory
“other than his own self-serving allegations”; absent “more specific
evidence,” the trial court is not required to compel disclosure and allow the
defense to conduct a fishing expedition). Only if the defendant makes this
threshold showing must the trial court weigh the competing interests to
determine whether the informant’s identity should be revealed.
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Commonwealth v. Marsh, 997 A.2d 318, 322 (Pa. 2010) (plurality); Bing,
713 A.2d at 58; Belenky, 777 A.2d at 488.
In the same September 30, 2016 order where the trial court permitted
the admission of evidence of the controlled buys, the trial court denied
appellant’s motion to disclose the identity of the CI. The trial court
reasoned:
Although the Commonwealth argues that the
identity of the [CI] is not material to the present
case, the Court must disagree. The Commonwealth
believes that because the buys themselves are
uncharged, there is no material evidence to be
brought from these incidents. However, it is
apparent from the record that the informant was an
integral part of the conspiracy case against the co-
defendants, making his identity material to the
present matter. Having reached this determination,
the Court balanced the parties[’] interest[s] and
concluded that the Commonwealth is not required to
disclose the witness[.] The Commonwealth asserts
that it can make its case based entirely on the
testimony of police officers, and that it does not need
any direct statement from the informant. Moreover,
this testimony is not that of a lone officer, but the
combination of several officers’ testimony concerning
the situation surrounding the controlled buys and
other corroborating evidence such as unmarked bills.
Not only is the testimony of the informant not
necessary to the prosecution of the case, but
revealing the identity of the informant raises a risk of
harm to the informant and has the potential to
disincentivize [sic] other citizens to participate in this
form of police reconnaissance. Both defendants in
this case possess substantial criminal records,
including aggravated assaults and weapons
convictions. The Commonwealth is reasonably
concerned about preserving its informant’s safety,
and ensuring that other informants feel safe working
with law enforcement.
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Trial court order, 9/30/16 at 3-4.
Here, the trial court determined that appellant met the threshold that
the CI’s testimony would be material and the request was reasonable. The
trial court then determined that the testimony of several police officers as
well as other evidence could prove the Commonwealth’s case such that the
testimony of the CI would not necessarily prove helpful to appellant.
Further, the trial court reasoned because both appellant and Weidner had a
history of aggravated assault and weapons convictions that the CI could be
in some danger if his or her identity were revealed. Appellant does not
persuade this court that the trial court abused its discretion when it did not
allow the identity of the CI to be revealed.
Appellant next contends that the trial court erred when it denied his
motion for judgment of acquittal when the Commonwealth clearly failed to
produce sufficient evidence to prove the element of possession in regard to
the charge of possession of a controlled substance with the intent to deliver
and the conspiracy thereof.
Before addressing the merits of appellant’s argument, this court notes
that in his statement of errors complained of on appeal, appellant only
stated that there was not sufficient evidence to establish a conviction for
conspiracy. Appellant did not raise a sufficiency issue concerning the PWID
conviction. The failure to include an issue in the statement of errors
complained of on appeal results in a waiver of that issue. See
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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Consequently,
appellant waived the issue of the sufficiency of the evidence concerning the
conviction for PWID.
We shall now review the merits of appellant’s appeal as it pertains to
the conspiracy conviction.
A claim challenging the sufficiency of the
evidence is a question of law. Commonwealth v.
Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751
(2000). In that case, our Supreme Court set forth
the sufficiency of the evidence standard:
Evidence will be deemed sufficient to
support the verdict when it establishes
each material element of the crime
charged and the commission thereof by
the accused, beyond a reasonable doubt.
Commonwealth v. Karkaria, 533 Pa.
412, 625 A.2d 1167 (1993). Where the
evidence offered to support the verdict is
in contradiction to the physical facts, in
contravention to human experience and
the laws of nature, then the evidence is
insufficient as a matter of law.
Commonwealth v. Santana, 460 Pa.
482, 333 A.2d 876 (1975). When
reviewing a sufficiency claim the court is
required to view the evidence in the light
most favorable to the verdict winner
giving the prosecution the benefit of all
reasonable inferences to be drawn from
the evidence. Commonwealth v.
Chambers, 528 Pa. 558, 599 A.2d 630(1991).
Id. at 319, 744 A.2d at 751.
Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa.Super. 2006).
Conspiracy is defined in Section 903 of the Crimes Code as follows:
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A person is guilty of conspiracy with another person
or persons to commit a crime if with the intent of
promoting or facilitating its commission he:
(1) agrees with such other person or persons
that they or one or more of them will
engage in conduct which constitutes such
crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or
persons in the planning or commission of
such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903.
The underlying offense, possession with intent to deliver, is defined as:
(a) The following acts and the causing thereof
within the Commonwealth are hereby
prohibited:
....
(30) Except as authorized by this act,
the manufacture, delivery, or
possession with intent to
manufacture or deliver, a
controlled substance by a person
not registered under this act, or a
practitioner not registered or
licensed by the appropriate State
board, or knowingly creating,
delivering or possessing with intent
to deliver, a counterfeit controlled
substance.
35 P.S. § 780-113(a)(30).
To sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant
(1) entered into an agreement to commit or aid in an
unlawful act with another person or persons, (2) with
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a shared criminal intent and (3) an overt act was
done in furtherance of the conspiracy.
Commonwealth v. Hennigan, 753 A.2d 245, 253
(Pa.Super. 2000). “This overt act need not be
committed by the defendant; it need only be
committed by a co-conspirator.” Id.As our Court has further explained with respect to
the agreement element of conspiracy:
The essence of a criminal conspiracy is a
common understanding, no matter how it
came into being, that a particular
criminal objective be accomplished.
Therefore, a conviction for conspiracy
requires proof of the existence of a
shared criminal intent. An explicit or
formal agreement to commit crimes can
seldom, if ever, be proved and it need
not be, for proof of a criminal partnership
is almost invariably extracted from the
circumstances that attend its activities.
Thus, a conspiracy may be inferred
where it is demonstrated that the
relation, conduct, or circumstances of the
parties, and the overt acts of the
co-conspirators sufficiently prove the
formation of a criminal confederation.
The conduct of the parties and the
circumstances surrounding their conduct
may create a web of evidence linking the
accused to the alleged conspiracy beyond
a reasonable doubt. Even if the
conspirator did not act as a principal in
committing the underlying crime, he is
still criminally liable for the actions of his
co-conspirators in furtherance of the
conspiracy.
Commonwealth v. Johnson, 719 A.2d 778, 784-
785 (Pa.Super. 1998).
Commonwealth v. McCall, 911 A.2d 992, 996 (Pa.Super. 2006).
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Appellant argues that there was no evidence to suggest that there was
a conspiracy between Weidner and appellant to possess the heroin that was
recovered at the Fruit Avenue address.
The trial court determined that the following evidence was sufficient to
establish a conspiracy:
In the case at hand, [appellant] and Weidner
are cousins. In the first buy, [appellant] shows up in
a vehicle owned by Weidner’s mother. The phone
number used is linked to a phone found with
Weidner. The second and third buys are set up
using the same telephone number for the first buy
and occurred at the residence where the drugs at
issue were found. [Appellant] and Weidner are
together when they [sic]search warrants are issued.
Trial court opinion, 6/14/17 at 9.
Appellant argues that these facts are insufficient to establish a
conspiracy. However, the same phone number was used to arrange the buy
handled by appellant and the two handled by Weidner. The two buys
handled by Weidner were conducted at or near the Fruit Avenue address
where the heroin was found. Further, appellant drove to the buy in a vehicle
owned by Weidner’s mother. As appellant himself admits, a conspiracy can
be proven by circumstantial evidence. See Commonwealth v. Perez, 931
A.2d 703, 708 (Pa.Super. 2007). Viewing the evidence in the light most
favorable to the prevailing party, the evidence presented by the
Commonwealth was sufficient to establish conspiracy.
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Finally, appellant contends that the trial court erred when it imposed a
clearly unreasonable sentence in violation of a fundamental norm where a
sentence of confinement should address a defendant’s rehabilitative needs.
Appellant challenges the discretionary aspects of his sentence.
[T]he proper standard of review when
considering whether to affirm the sentencing court’s
determination is an abuse of discretion.
....
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to review as of right.
Commonwealth v. Sierra, [752 A.2d 910, 912
(Pa.Super. 2000)]. An appellant challenging the
discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at
sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has
a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial
question that the sentence appealed
from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A.
§ 9781(b).
Moury, 992 A.2d 162, 169-170 (citation omitted).
Here, we begin our analysis by determining whether appellant has
complied with the procedural requirements of challenging the discretionary
aspects of his sentence. First, appellant timely filed his notice of appeal.
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Second, appellant raised the issue that the trial court imposed a sentence
that was excessive and did not take into account his rehabilitative needs in
his post-sentence motion which essentially is the issue before this court.
However, appellant included a Rule 2119(f) statement in his brief in which
he avers that even though he was sentenced within the sentencing
guidelines, it is clearly unreasonable to stay within the guidelines because
his convictions were highly speculative. Similarly, in the argument section of
his brief, appellant addresses the speculative nature of his convictions.
While appellant does not strictly comply with Rule 2116(a) of the
Pennsylvania Rules of Appellate Procedure in that the issue raised is not
exactly raised in the argument section of the brief, this court will address the
issue raised in the argument and in the Rule 2119(f) statement because we
can render meaningful appellate review.
Appellant does not cite to any statute or case law to indicate that he
has raised a substantial question in that his role in the possession of heroin
and the conspiracy to possess heroin is highly speculative such that he
should receive a lighter sentence. This court does not find that he raised a
substantial question. Appellant was found guilty by a jury of his peers and
was sentenced by the trial court within the standard range. Appellant’s
belief that the facts of the case were speculative does not raise a substantial
question that the trial court imposed a sentence that was not appropriate
under the Sentencing Code.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2017
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