Com. v. Garvin, L.

J. S07036/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LUGMAN GARVIN, : No. 2095 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, June 9, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007786-2015
BEFORE: BENDER, P.J.E., PANELLA, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 16, 2018
Lugman Garvin appeals from the June 9, 2016 judgment of sentence
entered in the Court of Common Pleas of Philadelphia County following his
conviction in a waiver trial of possession of a controlled substance with
intent to deliver, possession of a controlled substance, and conspiracy. 1 The
trial court imposed a concurrent sentence of one to two years of
incarceration plus two years of probation on the possession of a controlled
substance with intent to deliver conviction and no further penalty on the
remaining convictions. We affirm.
The trial court set forth the following:
Using a confidential informant, the police set up a
surveillance of 6311 Girard Avenue for the sale of
1 35 P.S. §§ 780-113(a)(30) and 780-113(a)(16) and 18 Pa.C.S.A. § 903,
respectively.
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narcotics. Police Officer Charles Kepusniak testified
that on June 19, 2015, he observed [appellant] and
a female (later identified as Dacia Reeves) standing
on the steps of 6311 Girard Avenue. The
confidential informant was given forty ($40.00)
dollars pre-recorded buy money and was observed
going to the house and engaging in conversation
with [appellant] and Ms. Reeves. After handing
Ms. Reeves the money, all three (3) individuals
entered the property together. While the
confidential informant was still inside the property,
[appellant] exited and was observed talking on a cell
phone before going back into the house. An
unknown black male then arrived and entered the
property; the confidential informant immediately left
the house and returned to Officer Kepusniak with
two (2) red-tinted packets of crack cocaine and
two (2) jars containing a green weed substance
(marijuana).
Officer Kepusniak returned to 6311 Girard Avenue on
June 22, 2015 and observed [appellant] exit the
house and sit on the step. Using a different
confidential informant, Officer Kepusniak observed
the second confidential informant approach
[appellant] on the step and hand him the
pre-recorded buy money. [Appellant] was then
observed waving to another individual (later
identified as Larry Koou) who was standing on the
northeast corner of 63rd Street and Girard Avenue;
Mr. Koou walked toward the house as soon as
[appellant] waved. Mr. Koou approached the house
and met the confidential informant between the
house where [appellant] was sitting and the corner
where Mr. Koou was standing. Officer Kepusniak
observed a hand-to-hand transaction between
Mr. Koou and the confidential informant; [appellant]
was approximately fifteen (15) feet away from the
transaction. The confidential informant returned to
Officer Kepusniak with packets of marijuana.
On June 24, 2015, a third day-time surveillance was
set up; the police also had a search warrant for the
property. A short time later, [appellant] and
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Mr. Koou walked past the vehicle where
Officer Kepusniak had set up surveillance and cut
across the street. Both men went into 6311 Girard
Avenue for approximately 30 seconds. When they
exited, they walked eastbound on the north side of
Girard Avenue. Officer Kepusniak gave their
description, direction, and location to back-up
officers. [Appellant] and Mr. Koou were stopped and
placed under arrest at the corner of 63rd Street and
Girard Avenue. Ms. Reeves was arrested inside the
apartment when the search warrant was executed.
Inside the living room, a mattress was found on the
floor and next to it was one (1) clear bag with
three (3) yellow-tinted packets, each containing an
off-white chunky substance (crack cocaine). Mail
found inside the residence was in Ms. Reeves [sic]
name only.
Police Officer Carlos Buitrago testified that he was
working as back-up when Officer Kepusniak executed
the search warrant at 6311 Girard Avenue on
June 24, 2016. Officer Buitrago stopped [appellant]
on the 6300 block of Girard Avenue and recovered
One Hundred Six ($106.00) Dollars, a cell phone,
and keys to the front exterior door and inside first
floor apartment door of 6311 Girard Avenue.
Trial court opinion, 1/25/17 at 2-3 (citations to notes of testimony omitted).
The record reflects that following his conviction and imposition of
sentence, appellant filed a timely notice of appeal to this court. The trial
court ordered appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on
July 25, 2016, and also requested an extension of time to file a
supplemental Rule 1925(b) statement upon receipt of all notes of testimony.
The trial court granted that request. The certified record before us,
however, demonstrates that appellant did not file a supplemental
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Rule 1925(b) statement. On January 25, 2017, the trial court filed its
Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Did not the trial court err by failing to order the
disclosure of the identity of two confidential
informants to whom appellant allegedly sold, or
conspired to sell, drugs where: 1) appellant’s
defense was that he was merely present; 2) no
police officer witnessed the first drug sale; 3) the
informant was the only available civilian eyewitness
to the second sale; and 4) the Commonwealth failed
to make the required specific showing that the need
for nondisclosure outweighed appellant’s right to
present a defense?
Appellant’s brief at 3.2
“Our standard of review of claims that a trial court erred in its
disposition of an informant’s identity is confined to abuse of discretion.”
Commonwealth v. Watson, 69 A.3d 605, 607 (Pa. Super. 2013) (citation
omitted).
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
2 We note that in appellant’s Rule 1925(b) statement, he also raised a
sufficiency of the evidence challenge. Appellant has abandoned that
challenge on appeal.
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factors, which are initially weighted toward the
Commonwealth.
Id. at 607-608 (citations omitted).
In his brief, appellant contends that he met his initial burden of
demonstrating that disclosure of the identities of the two confidential
informants (“CIs”) was material to the preparation of his defense that he
was “merely present” during the drug transactions. (Appellant’s brief at
10-11.) As such, appellant argues that because he testified at the hearing
on his motion that he did not sell narcotics to those CIs, “[h]e was wrongly
deprived of the opportunity to call the [CIs] as his witnesses at trial in the
hopes that their testimony would corroborate his own.” (Id. at 12).
In his motion to compel the identities of the CIs, however, appellant
stated that he would “present a defense of mistaken identity and/or
fabrication at trial.” (Appellant’s “motion to compel disclosure of confidential
informant identity or dismiss all charges,” 12/3/15 at unnumbered page 3,
¶ 4). Indeed, during oral argument on his motion, appellant argued that his
“defense in this case is police fabrication” with respect to the first drug
transaction and that “the police made a mistake or it’s a fabrication” with
respect to the second drug transaction. (Notes of testimony, 12/4/15 at 5,
16.) On appeal, appellant now claims that the trial court erred in denying
his motion to disclose the identities of the CIs because disclosure was
material to his defense of mere presence. (Appellant’s brief in passim.)
Because the record belies appellant’s claim that his defense was mere
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presence and because appellant failed to raise this issue in the trial court,
appellant waives the issue on appeal. See Pa.R.A.P. 302(a) (“Issues not
raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/16/18
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